M.A. GEORGE v. EXECUTIVE ENGINEER & Ors.

A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.19637 of 2006 ----------------------------------------Dated this the 3rd day of December 2012 J U D G M E N T Petitioner retired from service on superannuation whileworking as Sub Engineer in the Kerala State Electricity Board on31/5/2003. The writ petition is filed challenging thedepartmental proceedings taken against the petitioner afterretirement. He was suspended from service on 22/7/1999 andreinstated on 14/12/2001 and according to him, the said periodof suspension ought to have been considered for the purpose ofgiving retirement benefits since the petitioner being exoneratedby the disciplinary authority as well as the Vigilance Court.2.According to him, he was entitled for regularpromotion in the grade of Assistant Engineer in the year 2000;but no action was taken to give him the necessary promotiondespite the fact that he was exonerated from the charges as perExt.P4 proceedings. Further contention raised is that he wasentitled for getting time bound higher grade on completion of 24years. If he had been promoted as Assistant Engineer, he wouldhave got a grade promotion at the time of his acquiring 25 years W.P.C.No.19637/20062period. He has also a case that his entire gratuity has beenwithheld in violation of Rule 3 of Part III of Kerala State ServiceRules (KS & SR) without fixing his liability within the three yearperiod.3.The writ petition was amended as during thependency of the same the Chief Engineer issued Ext.P10 ordertreating the suspension period as eligible leave and calling uponthe petitioner was asked to submit leave application for the saidperiod. This was objected by the petitioner by issuing P11; but itis stated that By P12 order the said period of suspension istreated as leave without allowance and treating the subsistenceallowance already received amounting to Rs.3,08,642/- to beadjusted towards the DCRG benefits. After making such anadjustment the KSEB had issued Ext.P13 order stating that aftermaking such adjustments the balance amount of Rs.68,857/- is tobe recovered from the petitioner. Though an appeal was filed,the same was rejected as per Ext.P14 order. Petitioner,therefore, in addition to the relief sought for for calculating thepensionery benefits treating the suspension period also asservice and also claims the promotion which was due to him W.P.C.No.19637/20063during the relevant period treating the period of suspension asqualifying service and further challenging the recovery ofamounts of subsistence allowance which was received by himduring the period of suspension. 4. Counter affidavit is filed by the 3rd respondent interalia contending that the petitioner was suspended from servicewhile working as Sub Engineer with effect from 22/7/1999 basedon a report of the Vigilance and Anti Corruption Bureauregarding a case initiated against him in connection with a trap.Departmental action was also initiated against the petitioner.Thereafter, he was acquitted in the said case. Departmentalaction against the petitioner was finalised by the ExecutiveEngineer by dropping further action and by treating hissuspension period as eligible leave. Though appeals were filedbefore the Chief Engineer and also the Chairman, the same wererejected. It is the contention of the 3rd respondent that thoughthe petitioner was asked to submit a application for eligibleleave, he did not give any such application and therefore to avoidfurther delay in giving pensionary benefits the suspension periodfrom 22/7/1999 to 14/12/2001 was treated as leave without W.P.C.No.19637/20064allowance. 5.It is the further contention that as per Government .Circular No.65/94/Fin dated 1994 once a period of suspension isconverted into leave with or without allowance, recovery of thesubsistence allowance has to be made and it is in pursuance ofthe same that the subsistence allowance of 3,08,642/- was soughtto be recovered, out of which 2,39,785/- was adjusted against theadmissible DCRG and the balance amount was to be recoveredby filing civil suit. It is also stated that his monthly pension hadbeen granted on 22/01/2004. It is further submitted that theallegation was that the petitioner was arrested on charges ofaccepting bribe from a consumer for providing service serviceconnection. The counter affidavit also refers to the judgment ofthe Supreme Court in Krishnakanth Reghunath Nhavnekarv. State of Maharashtra [AIR 1997 SC 1434] and Ponnammav. State of Kerala [(1997) 9 SCC 36] to contend that even if aperson is acquitted in the criminal case or in departmentalprocedures the period of suspension cannot be treated as onduty. They also referred to the judgment in Muhammed EasaSahib v. DIG of Police [1990 (2) KLT 462] to contend that W.P.C.No.19637/20065even if a person is acquitted giving the benefit of doubt, hewould not be entitled to full amount of pay and allowancesduring the period of suspension. 6.In regard to the claim for giving promotions. it iscontended that since the petitioner had already retired fromservice, he was not entitled for any promotion.7.The question of consideration is two fold. One iswhether the petitioner is entitled to claim the suspension periodas on duty for the purpose of pensionary benefits and secondlywhether the department was entitled to recover the subsistenceallowance already paid to him from the DCRG.8.In regard to the period of suspension, it is not indispute that the departmental authorities have not accepted theplea of the petitioner to treat the same as qualifying service forthe purpose of pension. There is no dispute about the fact thatthe law on the point is very clear even if a person is acquitted bythe criminal court, it is for the disciplinary authority to considerwhether he should be exonerated from all the charges levelledagainst him. On a perusal of Ext.P5, it could be seen that afterconducting the disciplinary proceedings on the charges levelled W.P.C.No.19637/20066against him, the authority found that the petitioner is exoneratedfrom all the charges levelled against him. In regard to thesuspension period, there was a direction to regularise the saidperiod. But, on account of the facts that the petitioner did notapply for eligible leave and when a claim was made by thepetitioner to treat the said period as duty, Ext.P6 was issuedclearly indicating that the said period cannot be treated as dutyfor all purposes and to pay full allowances during thesuspension period. 9.It is clear from the materials on record that there wasa clear finding in Ext.P4 that the petitioner was exonerated fromall the charges levelled against him and the period of suspensionis treated as eligible leave. Therefore, it cannot be disputed thatthe said period can also be considered for the purpose ofcomputing qualifying service for granting pension.10.The next question is whether the subsistenceallowance paid can be recovered. This matter is covered by thejudgment of a Division Bench of this Court in Kerala StateWarehousing Corporation & Others v. Pauly John.T [2006(2) ILR Kerala 653] wherein a Division Bench of this Court, after W.P.C.No.19637/20067referring to Rule 56B of Part I of KS & SR came to a finding thatthe very principle of subsistence allowance is to ensure that theperson is not kept high and dry, all of a sudden, without job andwithout earnings. What is paid is not salary; but only anallowance sufficient enough for the employee to tide over thedifficult period. The Division Bench was considering an appealfiled against the judgment of the learned Single Judge settingaside an order passed by the Government to recover thesubsistence allowance from an employee after reinstating him inservice. In the appeal, the judgment of the learned Single Judgewas confirmed. 11.Another Single Judge of this Court in Thomas v.Deputy Director of Education [2005(3) KLT 872] also opinedthat the recovery of subsistence allowance already paid to theemployee in suspension is illegal. 12.Viewed in the light of the above judgments of thisCourt, I am of the view that Exts.P12 and P13 to the extent itdirects recovery of the subsistence allowance from the DCRG ofthe petitioner and to recover the balance amount is bad in lawand is liable to be set aside. W.P.C.No.19637/2006813.In the result, the writ petition is allowed as follows:i)Exts.P12 and P13 are quashed.ii)The period of suspension of the petitioner shall betreated as qualifying service for the purpose of computingpension.iii)The claim for notional promotion is rejected iv)The amount recovered from the petitioner from DCRGas refund of the subsistence allowance has to be refunded to thepetitioner within a period of two months from the date of receiptof this judgment failing which the said amount will carry interest@ 10% per annum.(sd/-)(A.M.SHAFFIQUE, JUDGE)jsr//True Copy//PA to Judge W.P.C.No.19637/20069 W.P.C.No.19637/200610