Kerala High Court · 2007

WP(C)16534/2006-: 3 :-that the impugned Ext.P9 order was passed by the secondrespondent, after hearing the petitioner.4.In support of the writ petition, the learned counselfor the petitioner argued that Ext.P5 judgment is oneacquitting the petitioner of blame and therefore, the period ofsuspension is only to be treated as period which can becounted for pension and other benefits, in terms of Rule 56Bin Part I Kerala Service Rules. It was further argued thatadjustment of his pay and allowances during the period undersuspension should have been made by giving him the fullamount since he has been acquitted of blame.5.The learned counsel for the respondents arguedthat Ext.P5, though has resulted in acquittal of the accused, isnot an order of acquittal of blame and is not one on the basisof which the petitioner could seek the reliefs sought for. Hefurther argued that all relevant facts and factors have beentaken into consideration by the competent authority in issuing WP(C)16534/2006-: 4 :-the impugned Ext.P9. 6.Rule 57 Part I KSR provides, among other things,that an officer who is detained in custody, whether on acriminal charge or otherwise, for a period exceeding forty-eight hours, shall be deemed to be under suspension witheffect from the date of commencement of the detention andshall not be allowed to draw any pay and allowances duringsuch period of suspension other than any subsistenceallowance or allowances that may be granted under Rule 55.It also enjoins that an adjustment of his pay and allowancesfor the period of suspension should thereafter be madeaccording to the circumstances of the case, the full amountbeing given only in the event of the officer being acquitted ofblame. Rule 56B in Part I KSR provides, among other things,that when an officer who has been suspended has beenreinstated or would have been reinstated but for hisretirement on superannuation while under suspension, theauthority competent to order reinstatement shall consider and WP(C)16534/2006-: 5 :-make a specific order regarding the pay and allowances to bepaid to the officer for the period of suspension and whether ornot the said period shall be treated as period spent on duty.7.In Sulekh Chand and Salek Chand (supra), theApex Court was dealing with a case where the acquittal led toreinstatement as if there is no blot on the delinquent's serviceand the need for the departmental enquiry is obviated. It wasnoticed on the facts of that case that the acquittal was onmerits and was not merely one where the delinquent officer'sacquittal was on technical grounds. I may immediately noticethat the nature of findings of the criminal court in that case isnot discernible from the report of the judgment.8.In Krishnakant Raghunath Bibhavnekar v.State of Maharashtra (AIR 1997 SC 1434), the Apex Courtwas dealing with a case of a Government servant prosecutedfor commission of defalcation of public funds and fabricationof records and the prosecution culminated in acquittal. It was WP(C)16534/2006-: 6 :-noticed that the disciplinary authority could have enquiredinto the self-same conduct unless the trial and acquittal by thecriminal court ended up in an acquittal recording a positivefinding that the accused did not commit the offence at all.Even otherwise, on reinstatement, the appropriate authoritymay, following the principle of natural justice, passappropriate orders, including the manner in which the periodof suspension has to be treated, whether the period is to betreated as duty or otherwise. It was held that when thesuspension period of the employee charged for committingcriminal breach of trust was treated to be a suspensionpending trial, he was not entitled to consequential benefits, onreinstatement into service even after acquittal, if that order ofacquittal is not one which results in a positive finding that theaccused did not commit the offence at all. It was insufficientthat he gets a technical acquittal or an acquittal on benefit ofdoubt.9.Dealing with Rules 56 and 57 in Part I KSR, the WP(C)16534/2006-: 7 :-Apex Court in K.Ponnamma v. State of Kerala [(1997) 9SCC 36] held that the nature of the order to be issued by thecompetent authority is one which is discretionary dependingupon the facts of the case.10.In Ext.P5 case, the petitioner was charge-sheetedon the accusation of an offence punishable under Sections 7and 13(1)(d) read with 13(2) of the Prevention of Corruptionof Act, 1988. The proceedings were initiated on the basisof a complaint made by Sri.R.Udayamoorthy, P.W.2 in thatcase who, after the laborious exercise of the Vigilance andAnti-Corruption Bureau, turned hostile before the criminalCourt. The laying of the trap and the making of thecomplaint by P.W.2, Udayamoorthy are matters proved in thecriminal Court. He owned his signature in Ext.P4 firstinformation statement but disputed its contents. P.W.3,Agricultural Officer attached to the Krishi Bhavan, was awitness to that trap laid. He deposed in support of theprosecution. I called for and perused the file of C.C.No.8 of WP(C)16534/2006-: 8 :-2002 of the Court of the Enquiry Commissioner and SpecialJudge, Thrissur in which Ext.P5 judgment was delivered. Thesaid case tilted in favour of the petitioner only because P.W.2,the defacto complainant Udayamoorthy, an engineeringgraduate and planter and the son of a former member of thePanchayat Committee, turned hostile and took the stand thatdecoy currency notes smeared with phenolphthalein powderwere not actually taken by the petitioner but were placedbetween the files by Udayamoorthy without the knowledgeand consent of the petitioner. A reading of Ext.P5 judgmentwould pivotally show that but for P.W.2 Udayamoorthy turninghostile, there was clear material to conclude against thepetitioner. Ext.P5 is not an order of acquittal of blame. It isthe result of a witness, that too, a defacto complainant in avigilance case charge-sheeted for an offence under the PCAct, turning hostile. Under such circumstances, the impugnedExt.P9 cannot be found fault with.In the result, the writ petition fails. The same is WP(C)16534/2006-: 9 :-accordingly dismissed with costs. Advocate's fee fixed atRs.5,000/-. THOTTATHIL B. RADHAKRISHNAN, JUDGE.Sha/-