Kerala High Court
P.A. Mohandas Son Of Gopalan Nair vs State Of Kerala, The Additional ... on 6 May, 2008
Author: V. Giri
Bench: V. Giri
JUDGMENT V. Giri, J.
1. The scope of Rule 56B(i)(a) of Part I of the KSR vis-a- vis the operation of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 {for short "the Rules"} comes up for consideration in this case. While this Court has, on several occasions, spoken on the nature of the power to be exercised under Rules 56 and 56B of Part I of the Kerala Service Rules {for short "KSR"} dealing with the question as to the pay and allowances that a Government servant is entitled to, on reinstatement after revocation of a suspension, in relation to the period during which he was kept under suspension, the question as to whether Rule 18(b) of the Rules has overriding effect in these matters does not seem to have been specifically raised for consideration in such cases. Counsel on both sides made elaborate submissions on this aspect.
2. The petitioner, while serving as an Upper Division Clerk in the Regional Transport Office, Thrissur, was prosecuted for an offence under the Prevention of Corruption Act in C.C. No. 13/93 before the Enquiry Commissioner and Special Judge, Thrissur. In the meanwhile, taking note of the fact that he was implicated in a criminal case, he was placed under suspension by the Transport Commissioner by order dated 23.11.1991. The commissioner had taken note of the fact that the petitioner was arrested on 19.11.1991 by the Vigilance Department in connection with the corruption (trap) case. The petitioner was convicted by the Court of the Enquiry Commissioner and Special Judge for the offence under the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year. Taking note of the conviction of the petitioner as per judgment dated 25.2.1995, the Transport Commissioner vide order dated 25.10.1995 dismissed the petitioner from service. The petitioner's conviction was confirmed by this Court by judgment dated 25.6.2001 in Crl.A. No. 190/95.
3. The petitioner preferred a Criminal Appeal before the Supreme Court and by Ext.P1 judgment dated 11.2.2002 the Supreme Court held that the authority, which had apparently given sanction for prosecuting the petitioner under Section 19 of the Prevention of Corruption Act had no jurisdiction to do so. Therefore, there was an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Prevention of Corruption Act. Accordingly, the proceedings in the criminal case were quashed. The State sought for a review of Ext.P1 judgment, referring to Section 19 (3) of the Prevention of Corruption Act, contending that no finding or sentence passed under the Prevention of Corruption Act shall be reversed on the ground of absence or any omission or irregularities in the sanction required under Section 19(1) of the Act, unless, in the opinion of the court, there was a failure of justice. The Supreme Court, by Ext.P2 order, held as follows:
Earlier refusal to grant sanction brings about entirely a different situation. Looking to all facts and circumstances indicated above we do not find any reason to recall or review our order as ultimately it would not result in any change in the decision of the case. For the above reasons, we decline to interfere in the Review Petitions, which are accordingly dismissed.
4. Subsequent to Ext.P2, the petitioner preferred a representation on 1.2.2004, seeking reinstatement with consequential benefits. By G.O.(Rt)No. 197/04/Transport dated 5.6.2004, Ext.P3 order, the petitioner's request, as such, was not accepted and the Government held that it is necessary to conduct a departmental enquiry on the allegations on which the penalty was imposed on the petitioner. The Transport Commissioner was directed to conduct the enquiry and furnish the enquiry report with his findings within a time frame. It was further directed that the petitioner will continue under suspension from the date on which he was dismissed as per Government Order dated 29.11.1996 viz., from the date of effect of his original suspension i.e. 23.11.1991.
5. Pursuant to Ext.P3 order, a fresh departmental enquiry was conducted by the Senior Deputy Transport Commissioner. By Ext.P7 order dated 10.1.2005, the Government took note of the fact that the Enquiry Officer has reported that the charge against the petitioner, that he has accepted an amount of Rs. 100/- on 19.11.1991 from the Registered owner of a vehicle for the issue of an Engine clearance certificate, could not be proved clearly. Apparently, the principal witness involved in the said transaction had expired by the time. The Government ordered that the petitioner be reinstated in service and allowed to retire on 31.1.2005. The question of regularisation of the period of suspension was to be finalised later.
6. By Ext.P4 order dated 11.1.2005, the Transport Commissioner, taking note of Ext.P7, reinstated the petitioner in service with immediate effect and posted him as an Upper Division Clerk in the office of the Regional Transport Commissioner, Ernakulam. The petitioner rejoined duty on 14.1.2005 and retired from service on 31.1.2005.
7. The petitioner then filed another representation before the Government seeking regularisation of the period of suspension from 23.11.1991 to 13.1.2005 and to treat the said period in its entirety as duty with all consequential benefits. By Ext.P5 order dated 17.11.2005, the Government held as follows:
Government have examined the case based on the report of the Transport Commissioner, Thiruvananthapuram and connected records and found that Sri.Mohan Das was reinstated in service based on the report of the Enquiry Officer. The enquiry officer could not clearly prove the base of official position and lack of integrity and devotion to duty in respect of Sri.Mohan Das. It is also found that the delinquent officer was not fully exonerated from the charges levelled against him. In the circumstances Government order that the period spent by Sri.Mohan Das, Retired U.D.Clerk, Motor Vehicles Department under suspension with effect from 23-11-1991 to 13-1-2005 will be treated as duty for the purpose of pension only, limiting his pay and allowance during the suspension period to subsistence allowance already drawn as a special case.
8. The petitioner has challenged Ext.P5 to the extent to which his pay and allowances from 23.11.1991 to 13.1.2005, the period during which he was kept under suspension was limited to the subsistence allowance already drawn. The petitioner contends that he was originally suspended, taking note of his implication in a criminal case and he was actually dismissed from service taking note of his conviction by the criminal court. On the conviction being set aside or rather the criminal proceedings themselves being quashed by the Supreme Court under Ext.P1, he was entitled to be reinstated with all back wages and consequential benefits. Though a further departmental enquiry was also conducted, the charges levelled against the petitioner were not proved and therefore, the Government was constrained to order reinstatement of the petitioner. This was done and in such circumstances, the petitioner is entitled to pay and allowances for the entire period commencing from 23.11.1991 to 13.1.2005. Reference in this regard is, inter alia, made to Rule 18(b) of the Rules.
9. The Government has filed a counter affidavit. It is pointed out that the petitioner was convicted by the trial court and the conviction was confirmed by the appellate court and it is not a case where he was 'acquitted of all blame' by the Apex Court. The Supreme Court had interfered with the conviction only on a technical ground dealing with the irregularity in the order of sanction. In fact, Ext.P2 order passed by the Supreme Court, on the review petition filed by the State, makes it clear that the question raised under Section 19(3) of the Prevention of Corruption Act, is actually left open. By Ext.P3 order, the Government had ordered that a fresh departmental enquiry should be conducted and had further ordered that the petitioner be kept under suspension with effect from the date of original dismissal and such suspension was revoked only on 10.1.2005 when, under Ext.P7 order, the Government had directed reinstatement of the petitioner. It is true that the Government had directed the departmental enquiry to be closed. But even in the said order, it was made clear that separate orders will be passed as regards the pay and allowances to be paid to the petitioner in terms of Rule 56 of Part I of the KSR. The Government had taken into account all relevant facts while passing Ext.P5 order. The entire period of suspension is treated as duty for pensionary benefits. It was limited to the subsistence allowance already drawn insofar as the pay and allowances are concerned. The said order is with jurisdiction and the Government is entitled to pass such an order under Rule 56 of Part I of the KSR. The order is with jurisdiction and is even otherwise justified in law.
10. A reply affidavit has been filed by the petitioner.
11. I heard learned Counsel for the petitioner Mr. Roy Chacko and learned Senior Government Pleader Sri.Nandakumar.
12. I consider it advantageous to formulate the following two issues, as broadly arising for consideration from the pleadings of the parties and the submissions made by the counsel.
(a) Does Rule 18(b) of the Rules have overriding effect in all cases where the original suspension of the Government servant was purely as a consequence of his implication in a criminal case? Assuming that there is any incongruity in the operation of the Rules; what is the area of harmonious reconciliation between the provisions of the Rules and the KSR, in the matter of pay and allowances which the Government servant is entitled, for the period during which he was kept out of service?
(b) What is the nature of the order that the Government or the competent authority is required to pass, under Rule 56B(1)(a) of Part I of the KSR, in the matter of pay and allowances that a Government Servant is entitled to for the period when he was kept out of duty? Regarding issue No. (a):
13. Chapter VII of KSR is titled "dismissal, removal and suspension". The provisions thereof deals with the pay and allowances of an officer, who is dismissed or removed from service. Rule 54 declares that the and pay and allowances of an officer, who is dismissed or removed from service, ceases from the date of such dismissal or removal. Under Rule 55, an officer, under suspension or deemed to have been placed under suspension by an order of the appointing authority, is entitled to the payments as mentioned therein. Under Rule 56, when an officer, who has been dismissed, removed or compulsorily retired is reinstated, as a result of an appeal or review, 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 'period spent on duty'.
14. Under Rule 56(2) where the authority, competent to order reinstatement, is of the opinion that the officer concerned 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 to, had he not been dismissed or removed from service or suspended prior thereto. Rule 56B is relevant in the context and is extracted hereunder.
When an officer who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, or has retired from service on superannuation before the conclusion of the disciplinary proceedings against him 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 suspension ending with re-instatement or the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty
15. Sri.Roy Chacko, learned Counsel for the petitioner submits that in the present case, the petitioner was originally suspended, taking note of his implication in a criminal case and was dismissed from service taking note of his conviction in a criminal court. The conviction was set aside by the Apex Court and in fact, according to him, the present case must be placed on a higher pedestal a reversal of the conviction as such. He contends that the proceedings against the petitioner were quashed by the Supreme Court and it should, therefore, be treated as a case where the petitioner had never been prosecuted in a criminal case as it were. He refers to the judgment of the Supreme Court in State through CBI v. B.L. Verma followed by this Court in State of Kerala v. Krishnan P.V. And Ors. 2007(2) ILR Kerala 389. He further submits that where the petitioner had been kept out of service either by way of suspension or pursuant to an order of dismissal which itself was only in consequence of the petitioner's conviction in a criminal case and the criminal proceedings ultimately are quashed by the court, then the reinstatement must have followed as a consequence thereof. Further, in such cases, there would be no discretion available to the government, in the matter of pay and allowances, that the petitioner is entitled to, as it is a case where he has been illegally kept out of service. He is entitled to pay and allowances as if he had been on duty for the entirety of the period.
16. Sri.Nandakumar, learned Senior Government Pleader, submits that the pay and allowances that a Government servant is entitled to, in relation to the period of suspension or when he was kept out of service consequent upon dismissal, on such dismissal being reviewed at a later point of time, is a matter governed by the statutory provisions. Sri.Nandakumar submits that Rules 56A, 56B, 57 and 58 cover the situations dealing with the of entitlement of a government servant to pay and allowances in relation to the period when he was kept out of service or kept away from duty, as the case may be, either by way of suspension or consequent upon dismissal which itself was either in consequence of a conviction in a criminal case or consequent upon an order passed in a disciplinary proceedings, as it were. The present case, according to him, would be covered by Rule 56B and the Government is entitled to exercise a discretion to make a specific order regarding the pay and allowances to be paid to the petitioner for the period of suspension ending with reinstatement. This is precisely what has been done under Ext.P5.
17. What is the nature of the period from 23.11.1991 when the petitioner was originally suspended from service till 14.1.2005 when he rejoined duty after reinstatement. The petitioner was originally suspended on 23.11.1991. He was dismissed from service with effect from the said date as per Government Order G.O.(Rt)No. 1555/96 dated 29.11.1996 applying Rule 31(2)(c)(i) of the Rules. But this was purely taking note of his conviction by a criminal court. In effect, therefore, the petitioner was kept out of service consequent upon an order of dismissal passed by the Government which itself was consequent upon his conviction by a criminal court with effect from 23.11.1991. The Supreme Court had quashed the proceedings against the petitioner by Ext.P1 dated 11.2.2002 which was refused to be reviewed under Ext.P2 dated 9.12.2003. If the Government had let the matters end there, then it might have been possible for the petitioner to contend that he was entitled to be reinstated in service with full pay and allowances, inasmuch as his dismissal was consequential upon his conviction in a criminal case and since the proceedings in the criminal court were quashed by the Supreme Court, he should be treated as entitled to the benefit akin to what is provided in Rue 18(b) of the Rules. I take note of the submission made by Sri.Nandakumar that the present case may not attract Rule 18(b) of the Rules. inasmuch as that the petitioner's dismissal from service was with effect from 23.11.1991, which is prior to the introduction of Rule 18(b) of the Rules in the statute book viz., 27.8.1998. But, I refrain from expressing any opinion as to whether Rule 18(b) of the Rules will apply even to cases where dismissal from service was consequential upon a conviction in the criminal case, prior to the introduction of Rule 18(b) of the Rules in the statute book. This is so because, on facts, it seems to be clear that the petitioner, being kept out of service with effect from 23.11.1991 cannot be treated as one purely consequential upon either his implication in a criminal case or his conviction by a criminal court as such. No doubt, the petitioner was originally suspended on 23.11.1991 pursuant to his arrest by the Vigilance Police and his implication in the criminal case. In fact, he was dismissed consequential upon the conviction by the criminal court. But apparently under Ext.P3 order, the Government had specifically ordered that it was necessary to conduct a fresh disciplinary enquiry against the petitioner on the allegations on which the penalty of dismissal was originally imposed on him. Government further ordered that the petitioner will continue under suspension from 23.11.1991. In effect, therefore, the petitioner's suspension must be treated as regulated by Ext.P3 order and the fact is that the petitioner was kept out of service from 23.11.1991. Ext.P3 order was not challenged by the petitioner as such. The petitioner has only challenged Ext.P5 order, by which the Government directed that the pay and allowances of the petitioner for the period of his suspension from 23.11.1991 to 13.1.2005 be limited to the subsistence allowance already drawn by him.
18. Once it is, therefore, found that the petitioner's suspension should be treated as one relatable to the disciplinary enquiry which was ultimately held against the petitioner, then obviously Rules 56 and 56B of Part I of the KSR enable the Government to pass orders regarding the manner in which the period spent by the petitioner out of service should be treated for the purpose of pay and allowances. Rule 18(b) of the Rules would be confined in its application only to cases where the Government servant is kept out of service purely as a consequence of a conviction by a criminal court. Where a Government servant is compelled to remain out of service by reason of a suspension pending disciplinary enquiry either initiated and proceeded with parallel to the proceedings before the criminal court or initiated and completed subsequent to the completion of the proceedings before the criminal court, Rule 18(b) of the Rules would not come to the aid of a Government servant to contend for the position that he is entitled to the entire pay and allowances for the period when he was kept out of service even if the conviction in the criminal court is reversed or set aside. The mode of treatment of the period of suspension would still be governed by Rules 56 and 56B of Part I of the KSR.
19. I am of the view that Rule 18(b) of the Rules would, therefore, be confined to cases where the Government servant is dismissed or removed from service in terms of Rule 18(a) viz., by invoking the provisions contained in item (a) of the second proviso to Clause (ii) of Article 311 of the Constitution. But in cases where the dismissal or removal from service is based on the conviction by a criminal court and such conviction is ultimately set aside in appeal, the consequences provided under Rule 18(b) would come about only where the Government decides not to conduct any separate disciplinary proceedings against the Government servant. Where the Government, as in the present case, decides to conduct a departmental enquiry and as ancillary thereto, passes an order directing the Government servant be kept under suspension till the enquiry is over, then the mode of treatment of the period when the Government servant is kept away from duty, by reason of such suspension, would still be as provided under Rule 56B of Part I of the KSR. This is precisely what has happened in the present case where under Ext.P3 order the Government, decided that the departmental enquiry should be conducted into the very same allegations and further directed that the petitioner be treated as placed under suspension with effect from 23.11.1991. In such circumstances, the competent authority will be required to pass an order under Rule 56B of the KSR as to the manner in which the period when the Government servant is kept out of duty is to be treated and the quantum of the pay and allowances that he would be entitled to in relation to the said period. Issue (b):
20. Rule 56A and 57 have been considered by the Apex Court and this Court in several decisions. In the circumstances, it is only necessary to refer to the judgments cited by Sri.Nandakumar in this regard.
(1) Ponnamma v. State of Kerala 1997 (1) KLT 720 (SC) (2) Ramachandran v. Director of Health Services 2002 (2) KLT SN 121 Case No. 148.
(3) Mohammed Easa Sahib v. DIG of Police 1990(2) KLT 462 (4) Appukuttan Pillai v. State of Kerala 2001(2) KLT SN page 40, Case No. 45 (5) Kerala State Bandloom Development Corporation Ltd. v. Nanu 2002(3) ILR Kerala 270.
(6) Management of RBI v. Bhopal Singh Panchal .
(7) Vikraman Pillai v. State of Kerala (8) Travancore Devaswom Board v. Rajasekharan Nair .
21. The consistent view that has been taken by the Apex Court and this Court as to the scope of the right available to a Government servant, construing the provisions of Part I of the KSR, is that an order will have to be passed by the Government or the competent authority as regards the pay and allowances of the Government servant in relation to the period when he was absent from duty and the manner in which the period when he was kept out of service is to be treated. Except in cases where the acquittal by the criminal court is an 'honourable acquittal or cases where the Government servant is acquitted of blame', in all other cases, the competent authority is entitled to exercise its discretion and decide the manner in which the period during which the Government servant was kept out of duty should be treated and the quantum of the pay and allowances given to him subject, of course, to the condition that it shall not be lower than the subsistence allowance which he has already drawn.
22. Learned Counsel for the petitioner Sri.Roy Chacko contended that the aforementioned decisions would not be applicable to the present case for two reasons. He submits that firstly the present case is one where the petitioner was not merely acquitted of the charges levelled against him, but it is a case where the proceedings against him in the criminal court were quashed by the Supreme Court. He referred to the judgment of the Supreme Court in State through CBI v. B.L.Verma and followed by a learned Judge of this Court in State of Kerala v. Krishnan P.V and Ors. 2007(2) ILR Kerala 389 in support of his submissions.
23. The second aspect of his submission in this regard was that none of the aforementioned judgments referred to Rule 18(b) of the Rules, introduced in the statute book as per S.R.O. No. 895/03 dated 24.9.2003 with effect from 27.8.1998 and if therefore, a Government servant was dismissed or removed from service purely consequential upon his conviction by a criminal court with a sentence of imprisonment and/or fine and the conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, he is entitled to reinstatement with all benefits, which he would otherwise be entitled to, had he been in service. Mr. Roy Chacko submits that the petitioner's case must be treated and placed on a pedestal higher than what is comprehended by Rule 18(b) of the Rules. The present case is not one where the petitioner is acquitted of all charges. It is a case where the Supreme Court had found that the proceedings initiated against him were illegal and the Supreme Court had, consequently quashed the same. At any rate, he is entitled to contend that the conviction by the criminal court was effaced in its entirety and consequently he must be brought, at least, within the purview of Rule 18(b) of the Rules.
24. I do not think it is necessary to consider the issue as to whether Rule 18(b) of the Rules would comprehend cases where the criminal proceedings are quashed, as in the present case, by the appellate court and whether it would be confined to cases where the conviction is set aside or reversed as such by the appellate court. Assuming that the contentions raised in this regard by the learned Counsel for the petitioner are accepted, for arguments sake, it still would not make any difference insofar as the present case is concerned. As held under issue No. (a) in the present case, a departmental enquiry was conducted against the petitioner pursuant to Ext.P3 order and the same order directed that the petitioner be treated as suspended with effect from 23.11.1991 and such suspension actually continued till Ext.P5 order was passed. The argument that Rule 18(b) of the Rules, therefore, would comprehend cases like the present one also where the proceedings are quashed, even if accepted, would, therefore, not improve the case of the petitioner. As I have already held above, it does not straight away entitle the petitioner to contend that the entire period when he was kept under suspension or out of service is eligible to be treated as 'duty'. Such an interpretation does not follow as a logical consequence.
25. In the circumstances, even if it is assumed that Ext.P1 judgment of the Supreme Court would entitle the petitioner's case to be treated as an 'acquittal of all charges' for the limited purpose of Rule 18(b) of the Rules or in other words, the petitioner's case is eligible to be treated on a par with the case of 'acquittal of all charges' for the purpose of Rule 18(b) of the Rules; it does not entitle the petitioner to all consequential benefits, inasmuch as that the petitioner came to be reinstated in service after completion of a departmental enquiry as evidenced by Ext.P7 order, and by Ext.P3 order, the Government, which it was competent to, specifically directed that the petitioner should be treated as having been suspended from service with effect from 23.11.1991. Apart from the fact that the Government was competent to pass Ext.P3 order, I also take note of the fact that the petitioner had accepted Ext.P3 and the same is not the subject matter of challenge in this writ petition.
26. Once it is concluded that the petitioner's absence from duty from 23.11.1991 till 13.1.2005 is resultant upon his suspension, made as per Ext.P3 order, which is pending enquiry and it came to an end only when the Government ordered reinstatement under Ext.P7 order, then it follows that the further order to be passed by the Government or the competent authority in the matter of treating the period of absence from duty and the quantification of the pay and allowances due to the Government service is one which is comprehended by Rule 56B of Part I of the KSR. It is this power which the Government has exercised while passing Ext.P5 order. Ext.P5 will have, therefore, to be treated as one passed with jurisdiction.
27. The further question is whether all the relevant facts have been taken note of by the Government while passing Ext.P5 order. I am afraid, the Government has not kept in mind the requirements under Rule 56B(v) of the Rules which makes it clear that the Government in a case, other than those mentioned in Sub-Rules (2) and (3) of Rule 56B of the KSR, which are obviously not applicable to the present case, the officer concerned shall be paid such other pay and allowances, which he would have been entitled to (not being the whole), had he not been suspended, and the quantification will have to be made by the competent authority and this significantly will have to be done with notice to the concerned person. Sub Rule (v) of the Rule 56B is worded similar to Rule 56(iv) and 56(a)(2). Consequently the law laid down by the Supreme Court and by this Court referred to in para 20 above as regards the scope of the power exercised by the competent authority in the matter of determining the pay and allowances of a Government servant who is entitled to reinstatement in service would apply to cases covered by Rule 56B also. The power is discretionary, but obviously will have to be exercised with due regard to the facts and circumstances of each case. The concerned Government servant is entitled to notice of the proposal on the part of the Government and all aspects, which are pointed out by him are eligible and worthy of consideration by the competent authority. No such exercise is seen to have preceded Ext.P5. To that extent, Ext.P5 will have to be treated as unsustainable.
In the result, the writ petition 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.