Kerala High Court
V.P.Kunhisoopi vs State Of Kerala on 9 March, 2020
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
WA.No.1414 OF 2019
AGAINST THE JUDGMENT IN WP(C) 22676/2010(H) OF HIGH COURT
OF KERALA DATED 15/2/2019
APPELLANT/PETITIONER:
V.P.KUNHISOOPI
AGED 62 YEARS
(RETIRED), H.S.A., AYANCHERI RAHMANIYA HIGH
SCHOOL, P.O. THAROPPOYIL, VIA PONMERI, VATAKARA,
KOZHIKODE, RESIDING AT VENGOLIPOYIL HOUSE,
NETTOOR, NETTOOR P.O., KOZHIKODE DISTRICT,
PIN-673 507.
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 001.
3 DEPUTY DIRECTOR OF EDUCATION
KOZHIKODE-673 001.
WA No.1414/2019
-:2:-
4 DISTRICT EDUCATIONAL OFFICER
VATAKARA, KOZHIKODE-673 101.
5 HEADMASTER
AYANCHERI RAHMANIYA HIGH SCHOOL, P.O.
THAROPPOYIL, VIA PONMERI, VATAKARA,
KOZHIKODE-673 541.
6 MANAGER
AYANCHERI RAHMANIYA HIGH SCHOOL, P.O.
THAROPPOYIL, VIA ONMERI, VATAKARA,
KOZHIKODE-673 541.
SMT. RAJI. T. BHASKAR-G.P.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-01-
2020, THE COURT ON 09-03-2020 DELIVERED THE FOLLOWING:
WA No.1414/2019
-:3:-
JUDGMENT
Dated this the 9th day of March, 2020 Shaffique, J.
Petitioner in WP(C) No. 22676/2010 is the appellant. He challenges judgment dated 15/2/2019 by which a learned Single Judge had dismissed the writ petition filed by him. Petitioner was suspended from service on 28/7/2001, while working as High School Assistant (Natural Science) in an aided school as he was involved in a criminal case alleging offence under Sections 143, 147, 148, 506(ii), 302 and 427 of I.P.C. r/w S.109 and 149 I.P.C. and under Sections 3 and 5 of the Explosive Substances Act and S.27(2) and (3) of the Arms Act. He was acquitted by the trial Court as per judgment dated 29/8/2006 in SC No.705/2003. The State filed appeal against the judgment of the Sessions Court against the order of acquittal. Those accused who were convicted also preferred separate appeal. The State appeal was dismissed confirming the acquittal of the petitioner and others and the appeal filed by the convicted accused was also allowed setting WA No.1414/2019 -:4:- aside their conviction. The Division Bench rendered the judgment on 18/12/2007. Though Special Leave Petitions were filed before the Apex Court against the aforesaid judgment, the same came to be dismissed by order dated 2/2/2009. Petitioner was reinstated in service on 4/4/2009. After joining service, he sought for regularisation of service. Since no action was taken, he filed WP(C) No.1470/2010 before this Court. By judgment dated 27/1/2010, the State was directed to consider his representation based on which he was heard and Ext.P10 order dated 7/6/2010 was passed denying benefits during the period of suspension from 28/7/2001 to 03/04/2009 and it was treated as non duty for all purpose without forfeiture of past service. While impugning the aforesaid order, petitioner sought for a direction to regularise his services during the aforesaid period and to grant him all service benefits thereof and to consider the said period of duty for all purposes. Learned Single Judge by the impugned judgment dismissed the said claim on a finding that since the Government has considered the case of the petitioner in a proper perspective and the reasoning of the order cannot be stated to be perverse, WA No.1414/2019 -:5:- no interference is required in the matter. While impugning the aforesaid judgment, learned counsel for the appellant submitted that in so far as the petitioner had been honourably acquitted from the charges levelled against him, which has been found by the trial Court and confirmed in appeal, he is entitled for all service benefits during the period while he was kept out of employment. It is pointed out that the finding in Ext.P10 that since all witnesses turned hostile, the acquittal is not honourable is not sustainable. This is a case in which the prosecution had not been successful in proving the case against the petitioner beyond reasonable doubt. In fact, none of the witnesses had spoken anything against the petitioner and therefore the acquittal was without any blemish and it is not an acquittal by giving benefit of doubt. It is argued that there was no evidence at all against him and therefore, he is entitled to all the service benefits as if it is an honourable acquittal.
2. Learned counsel also placed reliance on various judgments, which are as under:-
(i) Gurpal Singh v. High Court of Judicature for WA No.1414/2019 -:6:- Rajasthan [(2012) 13 SCC 94], wherein reference is made to the judgment in Union of India and Others v K. V. Jankiraman and Others [1991 (4) SCC 109], and it is held as under: -
"44. In view of the authoritative judgment rendered by this Court in the case of Jankiraman (supra), the submissions made by Mr. Calla would have to be accepted. In the aforesaid judgment it was held that :- "26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings"
(ii) Thrivikraman Namboodiri v. State of Kerala and Another (1976 KLT 303). This is a case in which a learned Single Judge of this Court held that in the face of mandatory provision contained in Rule 56 of Part I Service Rules (Kerala), the officer who has been reinstated in service after him having been fully exonerated should be given the full pay which he would have been entitled had he not been dismissed or removed together with any allowances of which he was in receipt prior to his dismissal or removal.
WA No.1414/2019-:7:-
(iii) Susamma v. State of Kerala (2002) 1 KLT S.N. 45 (Case No.54)]. This was a case in which the learned Single Judge held that when the suspension is wholly unjustified, the officer shall, subject to the provisions of Sub rule (8), be paid the full pay and allowances to which he would have been entitled had he not been suspended. That was a case in which the suspension was wholly unjustified as there was no ground for suspension. This judgment may not apply to the facts of the present case.
(iv) Baby S. v. Managing Director, KSRTC and another (ILR 2015 (3) Ker. 566). In this judgment, by placing reliance on Rule 56B of Part I of KSR, it was held that once the petitioner had been exonerated from the charge levelled against him based on the acquittal by the Magistrate Court, petitioner cannot be denied regularisaton of the period of suspension as duty with pay and allowances.
(v) Radhakrishnan C.R. v. State of Kerala and Others [(2017) 13 SCC 365]. In this case, the Apex Court held that in the case where the incumbent was not fully exonerated or given an honourable acquittal, claim for full service benefits cannot be WA No.1414/2019 -:8:- allowed.
3. On the other hand, learned Government Pleader Smt.Raji T.Bhaskar, while supporting the judgment of the learned Single Judge, submitted that the acquittal of the petitioner was not an honourable acquittal. He was acquitted only on account of the fact that the witnesses have turned hostile and that apart, this is a case in which sufficient evidence was adduced by the prosecution.
4. Having regard to the respective contentions of the parties, what is required to be considered is the interpretation given to Rule 56(B) of Part I KSR. Sub rule (3) reads as under:-
"(3) Where the Authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the officer shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended."
The entitlement of a delinquent officer for full pay and allowances under the aforesaid clause may arise only if the competent authority is of the opinion that the suspension was wholly unjustified. Sub rule (4) further indicates that in a case falling under sub-rule (3), the period of suspension shall be treated as WA No.1414/2019 -:9:- duty for all purposes. Sub-rules (3) and (4) are instances where the suspension becomes wholly unjustified. But as far as an aided school teacher is concerned, the Manager has to place a teacher under suspension when a case against him in respect of any criminal offence is under investigation or trial as provided under Rule 67(1)(b) of Chapter XIVA of KER. In such circumstances, when a person is involved in a criminal case, one cannot proceed on the basis that the suspension was wholly unjustified. Sub rule (5) carves out an exception to cases coming under sub rules (2) and (3). Sub rule (5) reads as under:-
"(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."
Those officers whose suspension is not wholly unjustified, sub rule (5) applies in which event, it is for the competent authority to determine the amount to be paid to him and the Rule clearly WA No.1414/2019 -:10:- indicates that the said amount shall not be the whole of the pay and allowances. Sub rule (7) further indicates that 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. Sub-rules (7), (8) and (9) reads as under:-
"(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. 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 commuted leave also. (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.
WA No.1414/2019-:11:- (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. xxxx"
Therefore, even in a case where the acquittal is honourable, there is an obligation cast on the competent authority to determine the amount payable which is not being the whole, again subject to the provisions of sub-rules (8) and (9).
5. The first question to be considered is whether the acquittal was honourable or not. In fact, such a question may arise for consideration in the light of the settled legal position. The rules do not indicate that the acquittal should be honourable or not. Whether it is honourable acquittal or not is to be considered by the competent authority while evaluating the claim in terms of Sub rule (5) of Rule 56B of Part 1 KSR. The legal position in this regard is very clear. Merely for the reason that there was an acquittal does not indicate that the delinquent officer is entitled for entire pay and allowances. A case coming under sub-rule (3) stands on a different footing. That is a case in which the suspension becomes wholly unjustified. WA No.1414/2019 -:12:-
6. An acquittal by a Criminal Court does not make the suspension wholly unjustified on account of the statutory provisions. As already stated, Rule 67 of Chapter XIV A KER mandates suspension of a teacher involved in a criminal case. Therefore, acquittal by a criminal Court does not mean that the suspension was wholly unjustified.
7. This is a case in which the petitioner was reinstated in service after revoking the suspension when he was acquitted by the criminal Court. The acquittal apparently was on account of the fact that there was no evidence against the petitioner. Therefore, in the absence of any evidence, it can only be held that the prosecution had failed to substantiate the case against him. In Deputy Inspector General of Police v S.Samuthiram [(2013) 1 SCC 598], the Apex Court had occasion to consider as to what would be honourable acquittal. It was held at paragraphs 24 to 27 as under:-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that case, this Court has considered the impact of Regulation 46(4) WA No.1414/2019 -:13:- dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari [1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows: (Raghava case [1972 SLR 44 (SC)] , SLR p. 47, para 8) "8. ... 'The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we WA No.1414/2019 -:14:- decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted".'"
(Robert Stuart case [ILR (1934) 61 Cal 168] , ILR pp. 188-
89)
26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the WA No.1414/2019 -:15:- instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules."
The finding in Ext.P10 that the acquittal was not honourable cannot be sustained. When the prosecution had failed to adduce any evidence against the petitioner, it could only be termed as an acquittal without any blemish. Even as per the order passed by the Government, 3 witnesses (PW14, PW18 and PW19) were cited to prove that the delinquent officer entertained a common object to commit murder. In fact, there was no charge of conspiracy whereas the Government proceeded on the basis that conspiracy was not proved. PW14 turned hostile to the prosecution and WA No.1414/2019 -:16:- evidence of PW18 and PW19 were not sufficient to prove conspiracy. Therefore, this is a case of 'nil evidence' and is not a case in which benefit of doubt has been given to the accused. Each case will have to be decided based on its own facts. But, still, it does not mean that a person is entitled for the entire pay and allowances if the acquittal is honourable. In view of the statutory provision under sub-rule (5) of Rule 56B of Part I KSR, he is only entitled for the pay and allowances subject to sub-rules (8) and (9). This aspect of the matter has not been considered by the Government while issuing Ext.P10. The fact that one of the witnesses had turned hostile to the prosecution only indicates that the prosecution was unable to prove the case against the accused.
8. In Baby's case (supra), the learned Single Judge has directed regularisation of service during the period of suspension with pay and allowances only on account of the fact that, during disciplinary proceedings, the appellate authority exonerated the petitioner from the charge levelled against him based on the acquittal of the Magistrate Court. The learned Single Judge WA No.1414/2019 -:17:- however did not consider the scope and effect of sub-rule (5) which prescribes a limit to the payment to be made during the period of suspension.
In the light of the aforesaid observation, we allow this appeal as under:-
(i) The judgment of the learned Single Judge is set aside and Ext.P10 order is quashed.
(ii) The petitioner shall file a fresh representation based on the aforesaid judgment to the Government, which shall be considered by the Government in accordance with law and in terms of sub-rule (5) of Rule 56B of Part I of KSR and take an appropriate decision within a period of 6 months, after hearing the petitioner.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH
Rp True Copy JUDGE
PS to Judge