IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28660 of 2003(J)
1. T.MOOSAKOYA, S/O. ALI HAJI,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. LAND REVENUE COMMISSIONER,
3. STATE OF KERALA,
For Petitioner :DR.K.P.SATHEESAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :26/08/2008
O R D E R
K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ
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W.P.(C)NO. 28660 OF 2003
============================
DATED THIS THE 26th DAY OF AUGUST 2008
JUDGMENT
Balakrishnan Nair,J.
This writ petition is referred to the Division Bench as per
the following reference order:
“The petitioner, who is involved in multiple offences and
got charge sheeted in several cases, got out of the cases
through acquittals, settlement, compounding, etc. He
was placed under suspension during the period of
pendency of the criminal cases and reinstated after he
was acquitted by Criminal Court. Learned Government
Pleader submitted that acquittal is only in one case and
in the remaining cases, the matter was compromised. It
is seen that petitioner was given all the benefits except
salary and allowances during the period of suspension.
The claim of the petitioner under Rule 18(iii)(b) of the
Kerala Civil Services (C.C.& A.) Rules, 1960 is for salary
and allowances during the period of suspension. In this
case, even though petitioner was suspended based on
the criminal case, no disciplinary proceeding was
continued against petitioner and the same was dropped
W.P.(C)NO. 28660/2003 -2-
after he was acquitted by the Criminal Court. The Rule
above referred provides for automatic grant of service
benefits to an employee whose conviction and sentence
are set aside in appeal. If this principle is applied in
petitioner’s case, he is entitled to full wages and
allowances during the period of suspension because
disciplinary proceedings were not continued after his
acquittal by Criminal Court. I am of the view that
disciplinary proceedings and conviction in criminal case
are entirely different. Convicted persons get acquittal
from Appellate Court on various grounds. However, in
the disciplinary proceedings, if there is clear evidence of
mis-conduct by the employee, punishment should be
imposed irrespective of out come of the proceedings of
the Criminal Court, where the employee probably would
have been charge sheeted. The above Rule provides for
automatic restoration of service benefits to the employee
after acquittal in a criminal case by any Court at any
stage. I feel, the Rule will not help maintenance of
discipline among Government servants. In many cases,
where the accused get acquittal, Civil Courts pass decree
upholding the claim of victims arising from same
transaction. Similarly, I am of the view that disciplinary
proceedings should be an independent proceeding and
it’s fate should not merely depend on the ultimate result
in a criminal case. In other words, if there is sufficient
evidence to prove indiscipline on an employee though
W.P.(C)NO. 28660/2003 -3-
initiated based on a criminal case, the result of such
disciplinary proceeding should not be neutralised by
judgment of Criminal Court. Having regard to the
importance of the issue, I refer this case for decision by
Division Bench, particularly to consider the validity of the
above Rule.”
2. Rule 18 of the Kerala Civil Services (C.C.& A)Rules, 1960
deals with the entitlement for salary and allowances of an
incumbent, who was dismissed or removed from service on
conviction by a criminal court and later the conviction is set aside
on appeal or revision. In this case based on his conviction by the
criminal court, he was never removed or dismissed from service.
Therefore, the above said Rule has no application to the facts of
this case. Therefore, it is unnecessary to consider the point
referred by the learned single Judge.
3. The brief facts of the case are the following: The
Kunnamanglam police registered a crime against the petitioner
as Crime No.184/1992 for the offence punishable under Sections
120B, 417, 420 and 465 read with Section 34 of the Indian Penal
Code. He was the first accused in that crime and his wife was the
second accused. The allegation was that the petitioner’s wife
W.P.(C)NO. 28660/2003 -4-
was running a furniture mart and the petitioner issued a cheque
to one of the parties, who was having dealings with the
furniture mart. The cheque leaf used was relating to the Bank
account of his wife. But the petitioner put his correct signature in
the cheque leaf . So the cheque was dishonoured and the party
filed a complaint before the Magistrate’s court which was
referred to the police under Section 156(3) Cr.P.C. Later, the
police filed final report in that case against him. There were
three other cases also concerning the issuance of three more
cheques in similar circumstances, it is submitted. Finally in all
those cases he was acquitted. His wife was acquitted by the trial
court itself. The acquittal of the petitioner in one case was by
the appellate court. In other cases the acquittal was based on
compounding.
4. With the registration of the aforementioned crime in
1992, he was placed under suspension by Ext.P1 order dated
29-12-1992. Finally, when in all the cases he was acquitted, he
moved the District Collector for reinstatement by filing a
representation, a copy of which is produced as Ext.P2. The
District Collector passed Ext.P3 order on his representation. It
W.P.(C)NO. 28660/2003 -5-
was ordered to treat the period he was out of service as eligible
leave and also to recover the subsistence allowance paid to him
during the above period. On appeal, the Land Revenue
Commissioner affirmed the order of the District Collector as per
Ext.P4 dated 5-2-2003. The petitioner moved the Government
by filing Ext.P5 petition. The said petition was allowed by the
Government by Ext.P6 order dated 4-7-2003. The Government
ordered to treat the period from14-12-1992 to 31-7-2002 during
which he was under suspension, as duty for all purposes except
for salary and allowances. It was also ordered that he is eligible
to get the subsistence allowance for that period. The petitioner
is aggrieved by the said direction. He claims entire salary for the
period he was suspended. Claiming that relief, this writ petition
is filed.
5. The third respondent has filed a counter affidavit stating
that the petitioner was not acquitted of blame. The benefit of
doubt was extended to him and he was acquitted. Some cases
were compromised or compounded and thereby he wriggled out
of liability. Therefore, he is not liable to get the full pay and
allowances, it is stated in the counter affidavit.
W.P.(C)NO. 28660/2003 -6-
6. We heard the learned counsel on both sides. We are of
the view that the case of the petitioner is covered by Rule 56(b)
and Rule 57 of Part I of the Kerala Service Rules. The petitioner
claimed full pay and allowances on acquittal of the criminal cases.
The competent authority has to decide, in the light of the
aforementioned Rules, whether the petitioner is entitled to get
the full salary and allowances or not. In this case, we find that
the Government have not considered the above aspect in the
light of the relevant Rules. Though the Government have
defended its order by filing a counter affidavit, we feel that the
reasons urged by the Government before this Court should have
found a place in the impugned order. Ext.P6 being a statutory
order affecting the rights of the parties, its validity has to be
tested with reference to the grounds mentioned therein and not
based on those supplied in the form of counter affidavit.
7. In view of the above position, we are of the view that the
Government should reconsider the matter after affording an
opportunity of being heard to the petitioner. Accordingly, Ext.P6
to the extent it says that the petitioner is eligible to get only the
subsistence allowance for the period he was kept out of service
W.P.(C)NO. 28660/2003 -7-
pursuant to Ext.P1 suspension order is set aside. The
Government shall afford an opportunity of being heard to the
petitioner and pass fresh orders on the claim of the petitioner
for full salary for the above period in the light of the above
mentioned Rules within four months from the date of receipt of a
copy of this judgment.
The writ petition is disposed of as above.
Sd/-
K. BALAKRISHNAN NAIR,
JUDGE
Sd/-
M.C. HARI RANI
JUDGE
ks.