IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WA.No. 437 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.26754/2006 Dated 12/01/2009 .................... APPELLANT(S)/RESPONDENTS IN THE WPC:- ---------------------------------------------------------------- 1. THE PRINCIPAL SECRETARY (FINANCE) THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TREASURIES, THIRUVANANTHAPURAM. 3. THE DISTRICT TREASURY OFFICER, KASARAGOD. 4. THE SUB TREASURY OFFICER, VELLARIKUNDU, KASARAGOD DISTRICT. BY SPL.GOVT.PLEADER SRI.N.MANOJ KUMAR. RESPONDENT/PETITIONER IN THE WPC:- ---------------------------------------------------------- V.C.JOSE, JUNIOR ACCOUNTANT, DISTRICT TREASURY OFFICE, KASARAGOD. ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: "CR" C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Writ Appeal No.437 of 2010. = = = = = = = = = = = = = = Dated this the 22nd day of July, 2010. J U D G M E N T Gopinathan, J. The respondent herein while working as Junior Accountant in Sub Treasury Office, Kasargod was caught red handed by the Vigilance and Anti-Corruption Bureau when the respondent accepted bribe from the Principal of a parallel college on 7-7-1997 for numbering a bunch of chalan forms presented before the Treasury for remittance of the examination fees of the students. The matter was brought to the notice of the authorities and by Ext.P1 order dated 10-12-1997 issued by the District Treasury Officer, Kasargod, suspended the respondent from service with effect from 8-12-1997 pending enquiry in connection with report of acceptance of bribe. The Superintendent of WA.No.437/2010. -: 2 :- Police, Vigilance and Anti-Corruption Bureau, Kasargod after due investigation, filed charge sheet against the respondent before the Enquiry Commissioner and Special Judge, Kozhikode alleging offences under Sec.7 and 13(1) (d) r/w.Sec.13(2) of the Prevention of Corruption Act, 1988. 2. The Enquiry Commissioner and Special Judge, Kozhikode after due trial found the respondent guilty for the above offences, convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.5,000/- each for offences under Sec.7 and Sec.13(1)(d) r/w.Sec.13(2)of the Prevention of Corruption Act. Consequently, on 17-12-2001 by Ext.P2 order, the District Treasury Officer, Kasargod terminated the service of the respondent with effect from the date of suspension. In Crl.Appeal No.285/2000, this Court by Ext.P3 judgment dated 15-7-2005 acquitted the respondent giving benefit of doubt. On representation from the respondent, by Ext.P4 dated 5-12-2005, the respondent was reinstated in service. Accordingly, the respondent WA.No.437/2010. -: 3 :- rejoined service with effect from 14-12-2005. 3. The respondent represented the Government by letter dated 4-2-006, responding to which Ext.P5 order dated 18-3-2006 was issued by the Principal Secretary, Finance, whereby the period of absence from the duty ie. 8- 12-1997 to 14-12-2005 was regularized as duty except for pay and allowances and for accrual of earned leave for the period to be reduced to the subsistence allowance admissible under Rule 55 Part I KSR. Being not satisfied, the respondent made Ext.P6 representation dated 15-5- 2006 stating that since he was acquitted the case is to be settled under Rule 56A(3) of Part I KSR and for disbursing the full salary and other allowances. The first appellant considered the matter and rejected Ext.P6 and intimated the same to the 2nd appellant, who in turn sent Ext.P7 communication dated 22-7-2006 to the 3rd appellant. Ext.P7 was communicated to the respondent. 4. Assailing Exts.P5 and P7, the respondent filed WP WA.No.437/2010. -: 4 :- (C).No.26754/2006. The learned single Judge by the impugned judgment dated 12-1-2009 allowed the writ petition by holding that this is a case coming under clause (a) and (b) of the second proviso to Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules and directed the appellants to disburse full salary and other benefits during the period of absence. Assailing the above judgment the respondents have come up in appeal. 5. We heard the learned Special Government Pleader Sri.N.Manoj Kumar and the learned counsel appearing for the respondent. 6. According to the learned Spl.Government Pleader, the absence of duty in this case comes under Rule 58 and to be dealt under Rule 56B of the Kerala Service Rules. In contra, the learned counsel for the respondent would argue that since no disciplinary proceedings was initiated, the second proviso to Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules alone is WA.No.437/2010. -: 5 :- applicable. For easy reference, we quote the rules. Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules reads as follows:- "18. Special procedure in certain cases:- Notwithstanding anything contained in rules 15, 16 and 17, (i) Where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge; or (ii) Where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) Where the Government is satisfied that in the interest of the security of the State it is not expedient to follow such procedure; the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit: Provided that before passing such orders under clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the rules. Provided further that where a Government Servant is convicted on a criminal charge by a criminal court and sentenced to imprisonment and WA.No.437/2010. -: 6 :- or with fine- (a) he shall be dismissed or removed from service forthwith by invoking provisions contained in item (a) of the second proviso to clause (2) of Article 311 of the Constitution of India irrespective of the fact that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, and b) in case the said conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, the order of dismissal or removal ceases to have effect and revised orders shall be issued forthwith to reinstate him in service entitling him all the benefits which he would have been entitled had he been in service: Provided also that in case where conviction is on a summary trial for petty offences and the sentence is for a fine upto Rupees Two Thousand only such conviction shall not be treated as a conviction for the purpose of this rule and for the entry into service or retention in service as the case may be." Rule 58 of the Kerala Service Rules, Part I reads as follows: "58. An officer against whom a criminal charge or a proceeding for arrest for debt is pending in a court of law should also be placed under suspension by the issue of specific WA.No.437/2010. -: 7 :- orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g., whilst released on bail) if the charge made or proceeding taken against him is connected with his position as an officer or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude unless there are exceptional reasons for not adopting this course. In regard to his pay and allowances the provisions of the rules above shall apply." 7. Now, we can examine Ext.P1. Ext.P1 would read that the respondent was suspended from service with effect from 8-12-1997 A.N. pending enquiry in connection with the reported acceptance of bribe. It is further stated in the second paragraph that subsistence allowance as provided for in Rule 55 of KSR Vol-I should be drawn and disbursed to the respondent on production of Non-employment Certificate duly counter signed by a Gazetted Officer. The subject mentioned in Ext.P1 is a criminal case against the respondent. In pursuance of Ext.P1 the respondent was under suspension and drawing subsistence allowance during the investigation and trial of the criminal case. It is WA.No.437/2010. -: 8 :- submitted that though Ext.P1 refers to an enquiry, no enquiry was initiated by the authorities for the best reason known to them. On conclusion of the trial, as we mentioned earlier, he was convicted and sentenced. Consequently, Ext.P2 order dated 17-12-2001 was issued terminating the service of the respondent. 8. On acquittal in appeal, the respondent was reinstated in service by Ext.P4, as stated earlier. A careful reading of second proviso to clause (a) of Section 18 quoted above would show that the said rule is a special procedure and is applicable when an employee is terminated without any suspension or disciplinary proceedings and not in a case where the employee is kept under suspension during investigation and trial of criminal case and subsequently terminated on the basis of the conviction. A close reading of Rule 58 quoted above would show that suspension pending criminal charges is permissible and in such cases the applicable provision of law is Rule 58, Part I of the WA.No.437/2010. -: 9 :- Kerala Service Rules and other rules under Chapter VII and not Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules. 2nd proviso to Rule 18 applies only to case where there is no suspension pending enquiry or criminal charges, but termination on conviction by trial court and acquittal in appeal or revision and consequent reinstatement. 9. A reading of Ext.P6 would show that the very case of the respondent is that this is a matter coming within the ambit of Rule 56A(3), Part I of KSR. The respondent has no case either before the first appellant while making Ext.P6 representation or in the writ petition that it is a case coming within the 2nd proviso to Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules. It appears that the learned single Judge omitted to note that this is a case in which there was suspension pending criminal charges and that Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules does WA.No.437/2010. -: 10 :- not envisage suspension pending disciplinary proceedings. Though no disciplinary proceedings were initiated and later the service of the respondent was terminated on conviction by the trial court and reinstated on acquittal by the appellate court, we, on a careful consideration of the facts stated and going by the relevant provisions find that this is a case coming under Rule 58 read with Rule 56B(5) of the KSR and not under Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules. Consequently, we find that the learned single Judge was not correct in directing the appellants to regularize the period of absence as period spent on duty under Rule 18 with all consequential benefits. 10. Rule 58 of Part I KSR would read that to determine the pay and allowances the provisions of 'Rules above' would apply. 'Rules above' mentioned in Rule 58 pertains to Rules 54 to 57 in Chapter VII of the Kerala Service Rules, Part I which deals with dismissal, removal and suspension. WA.No.437/2010. -: 11 :- 11. Rule 54 stipulates that the pay and allowances of an officer who is dismissed or removed from service shall cease from the date of such dismissal or removal. Rule 55 deals with payment of allowances to an officer under suspension or deemed suspension. The respondent was enjoying subsistence allowance under this rule. Rule 56 deals with the pay and allowances payable to an officer who is dismissed, removed or compulsorily retired and reinstated as a result of appeal or review as fully exonerated. Rule 56A is regarding the pay and allowances of an officer who is dismissed, removed or compulsorily retired and which is set aside by a Court of Law and reinstated. Rule 56B(1) deals with the suspension and reinstatement of an officer before culmination of disciplinary proceedings. Rule 56B(2) deals with the case of an officer under suspension who dies before the culmination of disciplinary or Court proceedings. Rule 56B(3) deals with the pay and allowances of an officer who is reinstated WA.No.437/2010. -: 12 :- on finding that the suspension was wholly unjustified. The case on hand would not come within the above three sub clauses under Rule 56B. Sub rule (4) stipulates that in cases coming under sub clauses 1 to 3, the period of suspension shall be treated as period spent on duty for all purposes. Sub rule (5) of Rule 56B is the provision relating to the cases other than what is mentioned above. We find that it would be appropriate to refer to sub-rule (5), (7), (8) and (9) of Rule 56B. Rule 56B (sub rule 1 to 4 omitted as not relevant) "(5) In cases other than those falling under sub-rules (2) and (3), the officer shall subject to the provisions of sub- rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, 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. (6) (Omitted as not relevant) WA.No.437/2010. -: 13 :- (7) In a case falling under sub-rule (5), the period of suspension 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 order that the period of suspension shall be converted into leave of any kind due and admissible to the officer. (8) The payment of allowances under sub- rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount (not being the whole) of such pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 55." 12. Going by the provisions quoted above, we find that it is for the competent authority to determine as to how the period of absence of duty has to be treated. Rule 56B (5) provides for a notice to the officer concerned and also consideration of the representation, if any, made by him. In this case, it is not disputed that the respondent had made representation. It is in pursuance of that representation WA.No.437/2010. -: 14 :- Ext.P5 order was issued. Thereafter, Ext.P6 representation was also made by the respondent. What is stated in Ext.P6 is that the respondent was acquitted of the charges levelled against him and the absence of duty is to be regularized as duty for all purposes. Going by Ext.P3 judgment, we find that in fact, as mentioned earlier, the respondent was caught red handed while he accepting money from the defacto complainant. The respondent was acquitted with a reason that the evidence available is not sufficient to conclude that the money seized from the respondent was accepted by him as bribe. What is stated in para.12 of Ext.P3 is that the prosecution case appears to be doubtful and benefit of that doubt was given to the appellant. Such being the reason for acquitting the respondent, we find that the respondent was in fact, not acquitted of blame. 13. The learned Government Pleader canvassed our attention to the decision of a Division Bench of this Court in Mohandas v. State of Kerala (WA.No.1091/2008), wherein WA.No.437/2010. -: 15 :- an Upper Division Clerk in Regional Transport Office was prosecuted under the Prevention of Corruption Act, convicted and sentenced. The conviction and sentence were confirmed in appeal. The Apex Court quashed the entire proceedings for noncompliance of section 19(3) of the Prevention of Corruption Act. Thereafter, the Department conducted an enquiry. In the meanwhile, the complainant therein died and no evidence could not be collected. The charges were not clearly established. The officer was reinstated without paying back wages. The Division Bench held that Rule 18 has no application. It declined to interfere with. 14. In contra, the learned counsel for the respondent canvassed our attention to the decisions in Ramsinhji Viraji v. State of Gujarat (1971 S.L.R. 743), Balappachar v. State of Mysore (1975(1)S.L.R. 809, Union of India v. Jayaram Damodhar Timiri (AIR 1960 (Madras) 325) and Pathrose v. Kerala Water Authority and another (2008(3) ILR 429). In WA.No.437/2010. -: 16 :- the earlier three decisions, it was held that there was no concept of 'Honourable acquittal'. Kerala Service Rules do not envisage honourable acquittal. Intention of rule making authority expressed in Rule 57, which deals with cases of arrest and detention exceeding 48 hours is 'acquittal of blame'. In our opinion, 'acquittal of blame' means there is no merit in blaming. It would not cover a case where the acquittal is on benefit of doubt. In the above cases, referring to the service rules therein and the facts and circumstances of the case it was ordered to pay full back wages. It is a precedent on facts. In Pathrose's case (supra), the learned single Judge of this Court after going through the judgment of acquittal found that the acquittal was for the reason that no trustworthy evidence had been produced. In that circumstance, it was ordered to pay full back wages. Whether an officer kept under suspension or removal following acquittal in criminal cases depends upon the facts and circumstances available in each case. It is a WA.No.437/2010. -: 17 :- matter to be decided case to case basis. 15. Going by the ruling cited from either side and Ext.P3 judgment, which we mentioned earlier, we find that the case on hand is identical to Mohandas's case (supra) and that the ruling in other cases has no application, especially going through sub rule 7 and 8 of Rule 56B of Kerala Service Rules. The respondent is not entitled to claim full back wages during the period of absence of duty as the period spent on duty. Whereas, it is for the competent authority to decide the same after taking into account of the entire facts and circumstances. 16. The learned counsel for the respondent also submitted that sub rule 5 of Rule 56B stipulates a notice to the officer before the competent authority taking a decision and the authority competent shall consider the representation, if any, submitted by the officer concerned. In this case, Ext.P5 order was issued after considering the representation given by the respondent and referred WA.No.437/2010. -: 18 :- therein. Thereafter, Ext.P6 representation given by the respondent was also considered before issuing Ext.P7. The rule does not mandate that the officer shall be heard in person though a notice is required. Since the respondent had given Ext.P6 representation even if there is no separate notice is given, the respondent is no way prejudiced. We have gone through Ext.P6 representation. The very case set up by the respondent is total innocence. As we mentioned earlier, having gone through Ext.P3, we are unable to accept the argument advanced by the learned counsel for the respondent. Total innocence doesn't appeal to us. The respondent has no whisper in Ext.P6 that the defacto complainant had any bad motive to falsely implicate or that the investigating officer had victimised him with any ulterior motive. In Ext.P3, there is no finding that the respondent had not accepted money from the defacto complainant. But benefit of doubt was given for the reason that there is no convincing proof that the money was taken WA.No.437/2010. -: 19 :- a bribe. With these facts we are unable to conclude that the respondent was acquitted of blame so as to entitle him reinstatement with all back wages. In the above circumstance, we find that the learned single Judge was not justified in interfering with Exts.P5 and 7 and directing the appellants to regularize the period of absence as period spent on duty for salary and other benefits. The writ petition is only to be dismissed. The appellants are entitled to succeed in the appeal. In the result, the appeal is allowed. While setting aside the impugned judgment, the writ petition would stand dismissed. There will be no order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) kvs/-