P.M.BHARGAVAN v. STATE OF KERALA

GOVERNMENT PLEADER SMT.ANU SIVARAMAN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 18563/2007-I PETITIONER'S EXHIBITS: APPENDIX EXT.P1: COPY OF THE ORDER OF SUSPENSION ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE MEMO OF CHARGES AND THE STATEMENT OF ALLEGATIONS DATED 03/12/2003. EXT.P3: COPY OF THE REPLY DATED 18/12/2003 SUBMITTED BY THE PETITIONER BVEFORE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 11/02/2004 REINSTATING THE PETITIONER IN SERVICE. EXT.P5: COPY OF THE JUDGMENT DATED 25/06/2003 IN C.C.NO.703/2003. EXT.P6: COPY OF THE REPRESENTATION DATED 27/11/2006 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER DATED 16/04/2007 ISSUED BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE LETTER DATED 07/06/2007 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P9: COPY OF THE ORDER DATED 25/07/2006 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ P.N.RAVINDRAN, J. ====================================== W.P.(C)No. 18563 of 2007 ====================================== Dated this the 13th day of November 2008 JUDGMENT Heard Sri.K.T.Shyam Kumar, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Government Pleader appearing for the respondents.

2. The petitioner is working as Srank in the Water Transport Department. The passenger boat in which the petitioner was working as Srank, collided with a fisherman's boat on 25.6.2003 as a result of which one fisherman died and another was injured. The petitioner was thereupon placed under suspension by Ext.P1 order dated 3.7.2003. He was also prosecuted for the offence punishable under Sections 280 read with Section 304(A) of the Indian Penal Code. The petitioner was later reinstated in service on 14.4.2004. By Ext.P5 judgment delivered on 25.6.2003, the Court of the Judicial First Class Magistrate II, Cherthala found the petitioner not guilty and acquitted him of the charges. Ext.P5 judgment has become final. Thereafter the disciplinary authority, viz. the Director of Water Transport passed Ext.P7 order dated

16.4.2007, dropping the disciplinary proceedings initiated against the petitioner. By Ext.P7 the Director also ordered that the period of suspension (3.7.2003 to 14.2.2004) shall be treated as duty for all purposes, limiting the pay and allowances to 80% of the emoluments that he was entitled to. It was also ordered that W.P.(C)No.18563/2007 2 though the petitioner will be entitled to annual increments and time bound higher grade promotions, the monetary benefits and the surrender value of the earned leave shall be disbursed to him only after the suits filed by the victims of the accident in the Court of the Munsiff of Ernakulam are disposed of, subject to the decision therein. In this writ petition the petitioner challenges Ext.P7 to the extent it denies him the monetary benefits, arising out of grant of increments, denial of time bound higher grade promotions and also the surrender value of earned leave. The petitioner contends that as he has been acquitted of the criminal charge and as disciplinary proceedings have been finalised, the respondents have no right or authority to deny him the grant of increments or time bound higher grade promotion and withhold payment of monetary benefits that he is entitled to by way of increments and time bound higher grade promotions. The petitioner also contends that the surrender value of earned leave also cannot be withheld for the reason stated in Ext.P7.

3. The respondents have filed a counter affidavit in which they contend that though the disciplinary action against the petitioner was dropped and he was acquitted of the criminal charge, as the petitioner is not fully innocent, the department is entitled to await the outcome of the civil cases before granting the petitioner W.P.(C)No.18563/2007 3 increments, time bound higher grade promotions and surrender value of the earned leave.

4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that the petitioner was acquitted of the criminal charge. It is also not in dispute that the disciplinary proceedings have been finalised and that no punishment was imposed on the petitioner. The trial court has in Ext.P3 judgment found that the petitioner was not guilty of negligence. The disciplinary authority has also taken the same view. Therefore the pendency of the criminal case or the disciplinary action cannot now be held out to deny service benefits to the petitioner. Further by Ext.P7, the period of suspension was treated as duty for all purposes, though salary and allowances were limited to 80% of the admissible emoluments. However, the annual increments that he was entitled to after 3.7.2003, the time bound higher grade promotions and surrender value of earned leave have been withheld on the ground that civil suits arising out of the accident that took place on

25.6.2003 are pending in the Court of the Munsiff, Ernakulam. While the learned counsel for the petitioner contends that mere pendency of a civil suit is not a ground to deny him service benefits, the respondents contend that he can be given service W.P.(C)No.18563/2007 4 benefits only subject to the outcome of the civil suits. In my considered opinion, there is no merit in the stand taken by the respondents. No provision in the KSR or in the Government orders governing grant of time bound higher grade promotion to government employees which disentitles the employee from being given increments or time bound higher grade promotions, in the event of his being involved in a civil suit was brought to my notice. Further Ext.P9 discloses that in the very same department, though hundreds of civil suits were pending, in respect of the Kumarakom boat tragedy, Boat Master, Srank, Driver and the Lasker involved have been paid terminal benefits. In these circumstances, the stand taken by the respondents in Ext.P7 cannot be sustained. In the result, the writ petition is allowed and the respondents are directed to grant the petitioner the increments that he is entitled to on the normal dates on which they accrued and also to grant him the time bound higher grade promotions in accordance with the relevant government orders. If options have to be exercised, the petitioner shall also be given an opportunity to exercise option. The petitioner shall also be entitled to surrender value of earned leave. While granting increments and time bound higher grade promotions, the respondents shall take note of the W.P.(C)No.18563/2007 5 pay revision orders issued from time to time. Final orders in the matter shall be passed within three months from the date on which the petitioner moves the respondents seeking the reliefs in that regard. Monetary benefits shall also be disbursed within a period of two months thereafter. P.N.RAVINDRAN, JUDGE css/