IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WA.No. 1091 of 2008() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.2080/2006 Dated 06/05/2008 .................... APPELLANT: PETITIONER ----------------------------------- P.A.MOHANDAS, S/O.GOPALAN NAIR, FORMERLY UPPER DIVISION CLERK, REGIONAL TRANSPORT OFFICE, NOW RESIDING AT 49/2103B, EDAKKATT ROAD, EDAPPALLY, KOCHI-24. BY ADV. SRI.ROY CHACKO RESPONDENTS: RESPONDENTS ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO PUBLIC WORKS & TRANSPORT (N) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL SECRETARY, GOVERNMENT OF KERALA, TRANSPORT (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SHRI BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = W.A. No.1091 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of August, 2008 J U D G M E N T ---------------------- Koshy, J. Appellant-petitioner, while working as an Upper Division Clerk in the Regional Transport Office, Thrissur was implicated as an accused in Crime No.8 of 1991 of the Prevention of Corruption Act, 1988 (for short, “the Act”). He was convicted for the offence charged against him. The conviction was upheld by the High Court. But in SLP Nos.214 and 215 of 2002, the Apex Court quashed the entire proceedings as the sanction was irregular and there was no compliance of the provisions in Section 19 of the Act. It is contended that Section 19(3) of the Act was not brought to the notice of the Apex Court by the Government Pleader and once there is conviction on merits, validity of sanction order need not be looked into. But review petition was also dismissed as per Exhibit P2. After making a series of representations, appellant was reinstated in service and departmental enquiry was initiated. During the course of enquiry, complainant died and therefore complainant was not able to be examined as a witness. Another witness W.A. No.1091 of 2008 -: 2 :- examined failed to attend the enquiry for cross-examination. Therefore, the enquiry officer came to the conclusion that the allegations made against the appellant were not proved clearly. On that basis Government have passed Exhibit P7 order and subsequently Exhibit P5 order and reinstated and posted the appellant as UDC in the office of the Regional Transport Officer. 2. Before the learned Single Judge it was contended that since the entire criminal proceedings were quashed, he should have been reinstated as if he was not dismissed at all with full back wages and the second enquiry conducted itself was wrong. 3. Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules (for short, “the 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 W.A. No.1091 of 2008 -: 3 :- (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 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 W.A. No.1091 of 2008 -: 4 :- service or retention in service as the case may be”. 4. According to the appellant in view of the provisions contained in Rule 18 of the Rules, the second departmental enquiry and the consequent proceedings are illegal and he is entitled to all the benefits. 5. The learned Single Judge considered Rule 56(2) as well as sub-rule (6) and Rule 56B of the Rules and held that even though the petitioner can be reinstated, it is subject to the above Rules and also found that Rule 18(b) of the Rules has got application only if Government issued permission in terms of Rule 18 2nd proviso (a) and that order is set aside in appeal or otherwise and the Government servant is acquitted of the charges. After referring to various decisions of the Supreme Court and this Court it was also held that entitlement of back wages, etc., have to be decided by the Government taking note of the contentions of the parties. 6. It is submitted by the learned Government Pleader that Exhibit P3 order ordering enquiry was not questioned by the appellant before any authorities and in fact by ordering reinstatement, the Government have taken a lenient view and considering these W.A. No.1091 of 2008 -: 5 :- circumstances, Government was directed to consider the matter again regarding the period of suspension, pay and allowance, etc. 7. The operative portion of the impugned judgment reads as follows: “In the result, the writ petitioner is allowed in part. While upholding the power of the Government to pass an order with regard to the manner in which the period of suspension of the petitioner from 23.11.1991 to 13.1.2005 is to be treated, the Government is directed to pass a fresh order as regards the quantum of the pay and allowances payable to the petitioner for the aforementioned period in terms of Rule 56B(v) of Part I of the KSR. The petitioner may treat Ext.P5 as a notice of show cause issued by the Government proposing to limit the pay and allowances during the period from 23.11.1991 to 13.1.2005 to the subsistence allowance already drawn. He may file his objections to the same within a period of one month from the date of receipt of a copy of this judgment. The Government shall pass fresh orders in that regard, within a period of three months thereafter. The petitioner shall be heard in person before final orders are passed by the Government”. 8. The only point urged before us was that Rule 18(b) of the Rules is very clear to the effect that once the appellant is acquitted of the charges he is entitled to be reinstated and no other proceedings can be taken as to whether dismissal was under Rule 18(a) or under W.A. No.1091 of 2008 -: 6 :- any other provisions. Assuming that the arguments of the appellant are acceptable, even then we are of the view that Rule 18(b) of the Rules is attracted only if he is acquitted. The appellant is not acquitted of the charges at all. He was charge sheeted and found guilty of the offence. That was upheld by this Court. The Apex Court noticing the illegality in the sanction order to prosecute, quashed the entire proceedings. That cannot be treated as a clean acquittal of the charges and Rule 18 of the Rules has no application in this case and it will be applicable only in the case of acquittal of the charges. At the maximum it can be said that he was not charge sheeted at all as the entire proceedings were quashed for want of sanction to prosecute. If he is not charge sheeted the departmental enquiry can be conducted and there is no bar for the same. Hence we find no reason to interfere with the the impugned judgment. Maximum benefit that can be given to the appellant has been granted to the appellant. The learned Judge also directed the Government to pass fresh orders after hearing the petitioner. In the result, the Writ Appeal fails and it is accordingly dismissed. However, appellant is allowed to file a representation before the Government within one month from today raising all his W.A. No.1091 of 2008 -: 7 :- points, since the Writ Appeal was pending in this Court. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv