IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 WP(C).No. 17965 of 2007(L) ---------------------------------------- PETITIONER(S): ------------------------ C.K. JOSEPH, ASSISTANT ENGINEER (RTD), K.S.E.BOARD, RESIDING AT CC.18/1622, CHERUTHURUTHY HOUSE, ESI ROAD, PALLURUTHY, KOCHI-6. BY ADVS. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): --------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM. 2. THE CHAIRMAN, K.S.E.BOARD, VYDYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (HRM), VYDYUTHI BHAVAN, PATTOM P.O.,THIRUVANANTHAPURAM. 4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, K.S.E.BOARD,ERNAKULAM,KOCHI-18. 5. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.BOARD, MATTANCHERRY, KOCHI. R1 TO R5 BY ADV. SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- WP(C)NO.17965/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER NO.GBI/44/98-99/4247 DATED 11/9/1998 OF 5TH RESPONDENT. P2 COPY OF THE ORDER NO.EBVS.2/35/98 DATED 2/11/2001OF THE 3RD RESPONDENT. P3 COPY OF THE JUDGEMENT DATED 29/12/2004 IN CRL.APPEAL NO.1062/2001. P4 COPY OF THE ORDER NO.EBVS.2/35/98/177 DATED 16/2/05 OF THE 3RD RESPONDENT. P5 COPY OF THE ORDER NO.GBI/44/98-99/604 DATED 6/6/05 OF 5TH RESPONDENT. P6 COPY OF THE APPEAL DATED 16/6/06 TO THE 4TH RESPONDENT. P7 COPY OF THE ORDER NO.GBI/ELE.75/98/2396 DATED 5/9/05 OF 3RD RESPONDENT. P8 COPY OF THE ORDER NO.EBVS.2/35/98/373 DATED 19/4/06 OF3RD RESPONDENT. P9 COPY OF THE REVIEW PETITION DATED 22/5/06 TO THE K.S.E.BOARD. P10 COPY OF THE ORDER NO.VIG/A1 949/05 DATED 27/12/2006 OF THE CHAIRMAN OF THE BOARD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17965 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th day of June, 2011. J U D G M E N T The petitioner was an Assistant Engineer of the Kerala State Electricity Board. He retired from service on 31.12.2005. While he was in service, he was arrested by the police and detained in police custody in connection with an allegation of accepting bribe. By Ext. P1 order dated 11.9.1998, the petitioner was suspended from service with effect from 9.9.1998. He was reinstated in service by order dated 4.2.2000, pursuant to which he joined duty on 5.2.2000. In the criminal prosecution, he was convicted and sentenced by the Enquiry Commissioner and Special Judge by judgment dated 29.10.2001. Appeal filed by the petitioner against the conviction before the High Court was allowed by Ext. P3 judgment dated 29.12.2004 and he was reinstated in service by Ext. P4 order dated 16.2.2005. Subsequently, he was promoted as Assistant Engineer on 9.12.2005. In the meanwhile, disciplinary proceedings were also initiated against the petitioner on the same set of facts. Ultimately, by Ext. P5 order, a punishment of barring of one increment without cumulative effect was imposed on the petitioner. By that order, it was also directed that the period of suspension and other absence till reinstatement may be regularised by granting eligible leave to the petitioner's credit, if he desires so or as leave without allowance, which will not count for any other purposes. A further appeal and revision filed by the petitioner against Ext. P5 order has been rejected by Exts.P7, P8 and P10. The petitioner seeks the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ or order quashing Ext. P5 order insofar as it ordered that the period of suspension and other absence till reinstatement may be regularised by granting eligible leave at his credit, if W.P(C) No. 17965 of 2007 -: 2 :- he so desires, or as leave without allowance which will not count for any other purpose; ii) to issue a writ of certiorari or any other appropriate writ or order quashing Ext. P7, P8 and P10 orders insofar as these orders have confirmed Ext. P5 order to the extent of regularising the period of suspension ad period of absence from service; iii) to issue a writ of mandamus or any other appropriate writ or order directing the respondents to treat the period of suspension and also the period of absence consequent on the order of dismissal as duty for all service benefits and to grant his consequential benefits.” The petitioner is aggrieved by that part of Ext. P5 order, whereby the period of suspension and absence from duty on dismissal till reinstatement was counted as other eligible leave or leave without allowance and he does not challenge the punishment imposed on him. According to the petitioner, Ext. P5 order does not reveal any application of mind as to how the period of suspension and period of absence have to be treated. The petitioner points out that since the Board has adopted Rule 56 of Part I of Kerala Service Rules is applicable and when an officer was dismissed from service is reinstated on an appeal or review, the authority competent to order reinstatement has a duty to make specific order regarding pay and allowance to be paid to the petitioner for the period of his absence from duty including the period of suspension preceding his dismissal and as to whether or not the said period should be treated as on duty. The petitioner also refers to Rule 57, which deals with the case of suspension for having detained in custody by the police for a period exceeding 48 hours, where also appropriate orders as to how the pay and allowance during the period of suspension has to be paid has to be passed. The petitioner contends that as is W.P(C) No. 17965 of 2007 -: 3 :- evident from Ext. P3 judgment of this Court, the petitioner was acquitted of the charges and therefore it must be taken that the petitioner has been acquitted of blame and consequently the petitioner is entitled to full pay and allowance during the period of suspension as well as the period during which he was absent from duty consequent upon the dismissal. For the same reason, the petitioner's period of absence on suspension and dismissal should be considered as on duty for all purposes. The petitioner submits that in Ext. P5 order, there is no detailed consideration of any aspects relating to the two issues to be considered under Rules 56 and 57. 2. A counter affidavit has been filed by the 1st respondent supporting the impugned orders. The learned Government Pleader points out that subsequently, the petitioner was punished for the misconduct on the same set of facts, which should also be taken into account while deciding the issue. 3. I have considered the rival contentions in detail. 4. The operative portion of Ext. P5 reads as follows: “Sri.C.K. Joseph vide Read 13th above submitted his reply to the show cause notice issued vide Read 12th above. Considering the reply, the undersigned is revising the proposed punishment of barring of his next/last one increment with cumulative effect. The undersigned hereby orders barring of his next/last one increment without cumulative effect. Also the period of suspension and other absence till reinstatement may be regularized by granting eligible leave at his credit, if he desires so, or as LWA which will not count for any other purpose.” Rules 56 and 57 of the KSR Read as follows: “56. (1) When an officer who has been dismissed, removed or compulsorily retired including an officer who has W.P(C) No. 17965 of 2007 -: 4 :- been compulsorily retired under Rule 60A, is reinstated as a result of appeals or review or would have been so reinstated, but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-- (a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be. (b) whether or not the said period shall be treated as a period spent on duty; and (c) in the case of an officer who was compulsorily retired under Rule 60A and subsequently reinstated, for the recovery of the relevant benefits, if any, already paid to him. (2) Where the authority competent to order reinstatement is of opinion that the officer who had been dismissed, removed or compulsorily retired, has been fully exonerated, the officer shall, subject to the provisions of sub- rule (6) be paid the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be: Provided that where such authority is of opinion that the termination of the proceedings instituted against the officer had been delayed for reasons directly attributable to the officer, it may, after giving him an opportunity to make his representation and after considering the representation , if any, submitted by him, direct, for reasons to be recorded in writing, that the officer shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine. (3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (4) In cases other than those covered by sub-rule (2) including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non- compliance with the requirements of clause (2) of Article W.P(C) No. 17965 of 2007 -: 5 :- 311 of the Constitution and no further enquiry is proposed to be held the officer shall, subject to the provisions of sub- rules (6) and (7) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal removal or compulsory retirement as the case may be, as the Competent Authority may determine, after giving notice to the officer of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period as may be specified in the notice: Provided that except in the case of such officers as are governed by the provisions of the Payment of Wages Act, 1936 (Central Act 4 of 1936), any payment under this sub- rule shall be restricted to a period of three years immediately preceding reinstatement or retirement on superannuation, as the case may be. (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the officer so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the officer. Note 1. The order of the Competent Authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of-- (a) leave without allowances in excess of three months in the case of a temporary officer; and (b) leave of any kind in excess of five years in the case of a permanent officer. Note 2. The leave of any kind due and admissible referred to in the proviso shall include Commutted Leave also. (6) The payment of allowances under sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible. W.P(C) No. 17965 of 2007 -: 6 :- (7) The amount (not being the whole) of such pay and allowances determined under the proviso t sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 55. (8) Any payment made under this rule to an officer on his re-instatement shall be subject to adjustment of the amount, if any, earned by him through on employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the officer.” “57. An officer who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours or is undergoing imprisonment, shall be deemed to be under suspension with effect from the date of commencement of the detention or imprisonment, as the case may be, and shall not be allowed to draw any pay and allowances during such period of suspension other than any subsistence allowance and other allowances that may be granted in accordance with Rule 55, until he is reinstated in service. An adjustment of his pay and allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being provided that the officer's liability arose from circumstances beyond his control.” As rightly pointed out by the learned counsel for the petitioner, under Rules 56 and 57, the authority competent to order reinstatement has to apply his mind regarding the circumstances under which the petitioner had to be reinstated and pass orders specifically as to how the period of absence shall be treated and also regarding pay and allowances to be paid to the officer for the period of his absence from duty. The case law on the subject lays down that for deciding that question, the authority has to consider whether while passing judgment in his favour in appeal by the appellate authority, the petitioner was acquitted W.P(C) No. 17965 of 2007 -: 7 :- of blame. Such consideration is totally absent in Ext. P5. Although learned counsel for the petitioner would want this Court to consider that question here itself, I am of opinion that it is for the authority competent to consider the same in the first instance. Ext. P5 order has been passed by the 5th respondent. But, the learned counsel for the petitioner submits that it is more appropriate that the 3rd respondent-Chief Engineer passes orders in the matter. I am also of that opinion. In the above circumstances, this writ petition is disposed of with the following directions: Ext. P5 to the extent the same treats the suspension and the period of absence till reinstatement as eligible leave or leave without allowances is set aside. The 3rd respondent is directed to re-consider the entire issue in terms of Rules 56 and 57 of KSR as also the observations in this judgment and pass appropriate orders, after affording an opportunity of being heard to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/