IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 34256 of 2005(C) -------------------------- PETITIONER: ------------ BALACHANDRAN.P, P.C.4317, K.A.P.II BN., MUTTIKKULANGARA, PALAKKAD. BY ADV. SRI.K.G.ANIL BABU RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. THE DEPUTY INSPECTOR GENERAL OF POLICE, KERALA ARMED POLICE BATTALION, THIRUVANANTHAPURAM. 4. THE COMMANDANT, K.A.P.II BATTALION, MUTTIKKULANGARA, PALAKKAD. BY GOVERNMENT PLEADER, SRI.R.LAKSHMINARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34256 of 2005(C) A P P E N D I X PETITIONER'S EXTS: EXT.P1 THE TRUE COPY OF THE ORDER NO.H1/PR4/2000 KAP II DATED 03/03/2001 OF THE 4TH RESPONDENT. EXT.P2 THE TRUE COPY OF THE JUDGMENT OF THE J.F.C.M.COURT III, PALAKKAD IN C.C.NO.211/2000 DATED 31/05/2001. EXT.P3 THE TRUE COPY OF THE ORDER NO.A2/999/2000 APB DATED 12/03/2003. EXT.P4 THE TRUE COPY OF THE ORDER NO.A2/999/2000 APB DATED 18/04/2004 ISSUED BY THE 3RD RESPONDENT. EXT.P5 THE TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 14/05/2004 REJECTING THE REQUEST OF THE PETITIONER FOR A.R.TRANSFER. EXT.P6 THE TRUE COPY OF THE REQUEST DATED 08/06/2004 SUBMITTED TO THE 3RD RESPONDENT. EXT.P7 THE TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/11/2004. EXT.P8 THE TRUE COPY OF THE ORDER B.O.NO.30/2005/KAP 2 DATED 28/01/2005 ISSUED BY THE 4TH RESPONDENT. EXT.P9 THE TRUE COPY OF THE LETTER DATED 23/08/2005 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P10 THE TRUE COPY OF THE B.O. NO.327/05/KAP I, DATED 24/08/2005 ISSUED BY THE COMMANDANT K.A.P.BN. EXTS OF RESPONDENT NOS.3 AND 4:- EXT.R4(a) TRUE COPY OF THE ORDER OF DECLARING PROBATION. \\TRUE COPY// P.A.TO JUDGE T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C) No.34256/2005-C ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 21st day of July, 2008 J U D G M E N T The petitioner has approached this Court seeking to quash Ext.P4 passed by the third respondent. The short facts leading to the original petition are the following:- 2. The petitioner is a police constable in the Kerala Armed Police II Battalion. He was recruited in that cadre in 1998. It is reported that he is now under the orders of transfer to the District Armed Police. He was appointed on 30/11/1998 and was undergoing the period of probation. Whileso, he was suspended pending enquiry into an alleged misconduct and he was also an accused in a criminal case on the allegation that he harassed a lady in a private bus. Finally, he was dismissed from service on 03/03/2001 as per Ext.P1 order. He challenged the same in appeal under Rule 11 of Kerala Police Departmental Inquiries Punishment and Appeal Rules, 1958, and by Ext.P3, the appeal was partly allowed modifying the dismissal to barring of one increment without cumulative effect. Meanwhile, he was acquitted by the criminal court as per Ext.P2 judgment. Thereafter, the issue of regularisation of the period of suspension and grant of monetary W.P.(C).NO.34256/2005-C -:2:- benefits during the said period till the date of reinstatement was taken up by the authority and after issuing show cause notice to the petitioner, by Ext.P4 order it was directed that the period of dismissal from 27/01/2000 till the date of reinstatement, i.e., 28/04/2003 will be treated as duty for the purpose of pension and gratuity alone. This is under challenge in the writ petition. 3. Heard learned counsel, Sri.K.G.Anil Babu and learned Government Pleader, Sri.R.Lakshminarayanan. 4. Learned counsel for the petitioner submitted, by relying on Rule 8 of K.S.& S.S.R that the period of dismissal from service is liable to be counted as part of duty and service for all purposes and the order Ext.P4 to that extent is illegal. It is also pointed out that by Ext.P2, the criminal court found that he is innocent. 5. The learned Government Pleader by relying on the averments in the counter affidavit, submitted that the approach made by the authorities below is perfectly justified and this is not a case where the petitioner was fully exonerated of the charges. In the counter affidavit it has been explained that the punishment was reduced to barring of one year increment without cumulative effect and the petitioner was not fully exonerated. Therefore, W.P.(C).NO.34256/2005-C -:3:- there does not arise any necessity to treat the period concerned as duty for all purposes and to allow full pay and allowances as argued by the petitioner in the writ petition. 6. A reading of Rule 8 of K.S.& SSR shows that the plain terms of the rules do not apply to the facts of this case. Rules apply to different situations, and absence from duty on dismissal is not covered by the rule. Therefore, the question is whether while passing Ext.P4 the authority was bound to treat the period of dismissal as duty for all purposes. In this context, there is one more material aspect to be considered. While he was out of service during the period of dismissal, he got appointment as Male Warden in the Jail Department and he joined duty on 21/11/2001 in the Sub Jail, Thrissur. He was relieved from the Jail Department on 28/04/2003 for rejoining duty in the K.A.P.II Battalion after the order of reinstatement was passed. Now the petitioner is claiming the period between the date of dismissal and the date of reinstatement as duty for all purposes of course by excluding the period of service in the jail department. 7. Apart from Rule 8 of K.S.& S.S.R the other rule referred to by the learned counsel for the petitioner is Rule 56 of Part I W.P.(C).NO.34256/2005-C -:4:- K.S.R. Even going by Rule 56 of Part I K.S.R, it is plain and clear that only if the delinquent is fully exonerated he will be entitled to count the entire period during which he was under dismissal as duty for all purposes. It is not the case of the petitioner that Rule 56 has been violated by the authority concerned while passing Ext.P4. His case appears to be that in the criminal case he was acquitted and, hence, when he was reinstated, he would be deemed in service without any service break. I am afraid the said contention cannot be accepted in the light of the plain terms of Rule 56 of Part I K.S.R. 8. Under Rule 56 of Part I K.S.R, the competent authority has to pass an order while reinstating the person in service, in a case where the punishment like dismissal is modified in appeal or review concerning his pay and allowances for his period of absence, and the period concerned. In this case the said exercise has been done by Ext.P4, of course, after issuing a show cause notice to the petitioner also. The authority has considered mainly two aspects, i.e., the petitioner was not fully exonerated and that during the period of dismissal, he had got appointment in another service. After considering both these aspects, it was ordered that W.P.(C).NO.34256/2005-C -:5:- the period from 27/01/2000 to 28/04/2003, will be treated as duty only for pension and gratuity. It cannot be said that the authority has exercised discretion in an arbitrary manner. It is evident that the fact that he was not fully exonerated and that he obtained another appointment to cover a portion of the period of dismissal were taken into consideration by the authority while rejecting his request to consider the entire period as duty for the purpose of getting service benefits. 9. The other aspect pointed out by the petitioner is that he has again been ordered to undergo the period of probation afresh and that is not required. It is explained in the counter affidavit that the petitioner has undergone training from 01/12/1998 to 17/09/1999 and he underwent probation from 18/09/1999 till the date of suspension 27/01/2000. Going by Ext.P4, even this period is not reckoned as service for all other benefits except pension and gratuity. It is in these circumstances he had been placed under probation afresh. Therefore, it cannot be said that the authority was not right in directing the petitioner to undergo probation afresh. Ext.R4(a) is the said order. In fact, the said order is not directly challenged in this writ petition also. W.P.(C).NO.34256/2005-C -:6:- When a person who has been dismissed from service is reinstated consequent on the orders passed in appeal/review, wherein he has not been fully exonerated, it cannot be said that as a matter of right he is entitled to count the entire period of dismissal till reinstatement as duty for all service benefits. If that be so, the order Ext.P4 does not suffer from any legal infirmity. Therefore, the writ petition is dismissed. No costs. T.R.RAMACHANDRAN NAIR, Judge ms