IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34256 of 2005(C)
1. BALACHANDRAN.P,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DIRECTOR GENERAL OF POLICE,
3. THE DEPUTY INSPECTOR GENERAL OF POLICE,
4. THE COMMANDANT,
For Petitioner :SRI.K.G.ANIL BABU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :21/07/2008
O R D E R
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C) No.34256/2005-C
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Dated this the 21stday 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
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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
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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
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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
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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
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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