STATE OF KERALA Vs. N.G.JOSEPH

JUDGEMENT

(1.) This writ appeal is filed by the State, aggrieved by the judgment of the learned Single Judge in W.P.(C).No.22648/2009, whereby an employee of the Agricultural Department of the State was held entitled to treat his suspension period, prior to dismissal from service, as service consequent to the setting aside of the order of dismissal and his reinstatement in service and entitled to all consequential service benefits for the said period. The Division Bench that heard the appeal was of the view that, insofar as the dismissal of the employee was in terms of Rule 18(iii)(a) of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, hereinafter referred to as the "KCS (CC&A) Rules" and based on a conviction and sentence imposed on him by the Court of Enquiry Commissioner and Special Judge, Thrissur for offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, hereinafter referred to as the "PC Act", on the said conviction being set aside by the appellate court, he would have to be reinstated in service with all consequential benefits as contemplated under Rule 18(iii)(b) of the KCS (CC&A) Rules. While taking this view, the attention of the Division Bench was drawn up to the decision of another Division Bench dated 22.7.2010 in Principal Secretary (Finance) and Others v. V.C.Jose [W.A.No.437/2010] where the Bench took the view that in cases where a suspension was ordered prior to dismissal based on conviction by a court, although on the conviction being set aside, the employee would be reinstated, the period of absence from duty did not have to be treated as service and he would not be eligible for full wages in terms of Rule 18(iii) (b) of KCS (CCA) Rules. It was under these circumstances that the Division Bench that heard the present writ appeal felt that the matter should be examined by a Full Bench and the matter has been placed before us for our consideration.

(2.) We have heard the learned Government Pleader Sri.P.I. Davis for the appellant and Sri.S.P.Aravindaksha Pillai, learned counsel for the respondent.

(3.) Before examining the relevant statutory provisions, the brief facts in V.C.Jose's case , as also the facts in the present writ appeal, may be separately noticed. In V.C.Jose's case , the employee in question was working as a Junior Accountant in the Sub Treasury Office, Kasargod. He was caught by the Vigilance and Anti-Corruption Bureau, accepting bribe from the Principal of a Parallel College for numbering a bunch of chalan forms presented before the Treasury for remittance of examination fees of the students. By an order dated 10.12.1997, he was suspended by the District Treasury Officer, Kasargod pending enquiry. Thereafter, the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kasargod filed a charge sheet before the Enquiry Commissioner and Special Judge, Kasargod alleging offences under Sections 7 and 13(1) (d) read with Section 13(2) of the PC Act. The Special Judge, after trial, convicted the employee and sentenced him to imprisonment and fine for the offences aforementioned. Thereafter, the District Treasury Officer terminated the services of the employee with effect from 17.12.2001. The employee was subsequently acquitted by the appellate court giving him the benefit of doubt, by a judgment dated 15.7.2005. Thereafter, pursuant to a representation made by the employee, he was reinstated in service on 5.12.2005 and he rejoined the service with effect from 14.12.2005. The Principal Secretary, Finance, thereafter regularised the period of absence of the employee from 8.12.1997 to 14.12.2005 as duty for all purposes except pay and allowances and the accrual of earned leave for the period was reduced to subsistence allowance admissible under Rule 55 of Part I of the Kerala Service Rules, hereinafter referred to as the 'KSR'. The employee therefore filed a further representation before the Government contending that he was to be disbursed the full salary and allowances as per Rule 56A(3) of Part I KSR. This representation was rejected by the Government. The employee therefore preferred a writ petition [W.P.(C).No.26754/2006] before this Court. A learned Single Judge who heard the matter, by judgment dated 12.1.2009, allowed the writ petition by holding that it was a case coming under Rule 18 of the KCS (CC&A) Rules and directed the State Government to disburse full salary and other benefits to the employee during the period of his absence. In the appeal preferred by the State against the said judgment, the Division Bench allowed the appeal by finding that the employee was not entitled to claim full back wages during the period of absence from duty, by treating the same as period spent on duty. According to the Division Bench, when there was a suspension pending criminal charges, the power of suspension was traceable to Rule 58 of Part I KSR and the other Rules under Chapter VII thereof, and not to Rule 18 of the KCS (CC&A) Rules. It was held that the second proviso to Rule 18 of the KCS (CCA) Rules applied only to a case where there was no suspension pending enquiry or criminal charges but a termination on conviction by a trial court. Insofar as the case of the employee before it was that, his was a matter coming under Rule 56A(3) of Part I of KSR, he had no case that Rule 18 of the KCS (CC&A) Rules applied. It was found that Rule 18 of the KCS (CC&A) Rules did not contemplate suspension pending disciplinary proceedings and in cases where there was a suspension pending criminal charges, Rule 58 read with Rule 56B(5) of Part I KSR would apply. The Division Bench then proceeded to analyse Rules 54 to 57 of Chapter VII of Part I KSR and found that in the case before it, it was Rule 56B(5) of Part I KSR that would be applicable to determine the payment to which the employee would be entitled for the period he was absent from duty. It was further held that the nature of the acquittal in the criminal proceedings had to be looked into and the benefit accruing to the employee on reinstatement had to be determined in accordance with the Rules 56B(5), 56(B)(7), 546(B)(8) and 56(B)(9), as the case may be. The findings of the Division Bench are to be found in paragraph 8 of the judgment which reads as follows: