Y.GOPAKUMAR v. KERALA STATE ELECTRICITY BOARD

W.P.(C). NO.17375/2010-V:APPENDIXPETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS NO.EBVS8/24/2003, DTD. 22/08/2003 OF THE R.3.EXT.P.2: COPY OF THE ENQUIRY REPORT NO.EE/ENQUIRY/2004-05/271 DTD. 22/12/2004 SUBMITTED BY THE ENQUIRY OFFICER BEFORE THE R.3.EXT.P.3: COPY OF THE ORDER NO. EBVS.8/24/2003/64 DTD. 23/01/2006 ISSUED BY THE R.3.EXT.P.4: COPY OF THE ORDER NO.VIG. AIV/2248/03, DTD. 12/07/2006 ISSUED BY THE R.2.EXT.P.5: COPY OF THE BO(FB).NO.1627/2007 (VIG./AIV/2248/03), DTD. 13/07/2007 ISSUED BY THE R.1.EXT.P.5.A: COPY OF THE ORDER DTD. 28/02/2006 OF THE HON'BLE LOK AYUKTA IN COMPLAINT NO.1692/2005.EXT.P.5.B: COPY OF THE B.O.(FB).NO.2225/2006 (VIG/AIV/2248/03), DTD. 23/08/2006 WHEREBY PERIOD OF SUSPENSION SPENT BY SRI. G.MOHANACHANDRAN WAS DECIDED TO REGULARIZE AS DUTY INSTEAD OF ELIGIBLE LEAVE.EXT.P.5.C: COPY OF THE REVIEW PETITION DTD. 10/01/2008 SUBMITTED BY THE PETITIONER.EXT.P.6: COPY OF THE B.O.(FB).NO.385/2010(VIG/AIV/2248/03)/321, DTD. 06/02/2010 OF THE R.1.RESPONDENTS' EXHIBITS: NIL.//TRUE COPY//P.A. TO JUDGEPrv.

C.K. ABDUL REHIM, J.------------------------------------W.P.(C). Nos. 17375, 17412 & 17413 of 2010 ------------------------------------------Dated this the 6th day of December, 2012JUDGMENTPetitioners in all the 3 writ petitions are employees ofthe Kerala State Electricity Board (K.S.E.B.). Petitioner inWP(C) No. 17412/2010 had now retired from service onattaining superannuation. The petitioners in WP(C) Nos.17412/2010 & 17413/2010 were working as AssistantEngineers and petitioner in WP(C) No. 17375/2012 wasworking as Overseer. They were suspended from service on22.08.2003, on the allegation that they have instigatedviolence in the Office of the Assistant Executive Engineer, Electrical Sub Division, Sasthamcotta, by arranging activistsfor a harthal, on 18th March 2003, and instigated to causeassault on the incumbent in the Office of the AssistantExecutive Engineer, and also damaged the Board'sproperties.

It was also alleged that by the said act theyhave tarnished image of the Board and acted in prejudicialto interest of the Board. They were alleged to have W.P.(C). Nos. 17375, 17412 & 17413 of 2010-2-committed misconduct subversive of discipline andderogatory to Board's interest. There was also an allegationof unauthorised absence on 18th March, 2003. Petitionerswere suspended along with one Sri.G.Mohanachandran, whowas working as a Junior Engineer at that time. In a commonenquiry conducted, the petitioners as well as Sri.G.Mohanachandran were exonerated finding that thedelinquent officers were present for duty on the relevantdate and there was no evidence to prove that they haveinstigated the activists who conducted the hartal. However, the 3rd respondent disciplinary authority has not acceptedthe enquiry report and imposed punishment of censure onall the petitioners, finding that the petitioners have got someindirect involvement in the incident.

Punishment wasimposed after issuing show cause notice and afterconsidering objections submitted by the petitioners. Aggrieved by the punishment imposed, the petitioners havefiled appeal before the 2nd respondent the Chairman, K.S.E.B. W.P.(C). Nos. 17375, 17412 & 17413 of 2010-3-But in Exhibit P4 order the appeals were dismissedconfirming the punishment. Subsequently, the petitionersfiled Review Petition before the full Board. In Exhibit P5proceedings, the findings were reversed and the punishmentof censure imposed on the petitioners was withdrawn. TheBoard decided to regularise the period of suspension aseligible leave. Subsequently, in a Review Petition filed by Sri.G.Mohanachandran the Board has taken a decision toregularise his period of suspension as duty, instead ofeligible leave. On the basis of the said order (Exhibit P5(b),the petitioners submitted representations before the Honourable Minister for Power, Government of Kerala, through an association representing the workers.

The saidrepresentation was forwarded to the Board and the matterwas again reconsidered by the Board on its meeting held on20.01.2010. The Board took a decision to review its earlierdecision treating the period of suspension as eligible leaveand ordered that the period of suspension will be treated as W.P.(C). Nos. 17375, 17412 & 17413 of 2010-4-duty for all service benefits, except for pay and allowances. Exhibit P6 is the order issued in this regard. In these writpetitions the petitioners are challenging Exhibit P6 orders tothe extent it denied the benefit of pay and allowances forthe period of suspension, which was ordered to be treated asduty.

In the counter affidavit of the respondents it iscontended that in the case of Sri.G.Mohanachandran nodecision was taken as per Rule 56B (3) of Part 1 of K.S.R. tothe effect that the suspension was 'wholly unjustified'. Butit was decided to treat the suspension period as dutyconsidering the fact that Sri.G.Mohanachandran has alreadyretired from service of the Board.

While considering the claim of the petitioners forpay and allowances during the period of suspension, it is tobe noted that the Board has taken a decision to reverse thedecision of the disciplinary authorities. Initially the Boarddecided to treat the period of suspension as eligible leave. W.P.(C). Nos. 17375, 17412 & 17413 of 2010-5-But subsequently, the said decision was reviewed and theperiod of suspension was decided to be treated as duty forall service benefits except for pay and allowances. Such adecision was taken because of the fact that the Board hastaken a similar decision in the case of Sri.G.Mohanachandran. Learned counsel for the petitionershad pointed out that the rider restraining pay andallowances for the relevant period was not imposed in thecase of Sri.G.Mohanachandran. Exhibit P5(b) order issued bythe Board in the case of Sri.G.Mohanachandran is pointedout for reference.

Question of regularisation of the period ofsuspension is governed by provisions of Rule 56B. When asuspended officer is reinstated by the competent authority, such authority is bound to consider and to make a specificorder as to whether the period of suspension is to be treatedas duty or not. In the case at hand, the Board ultimatelydecided to treat the period of suspension as duty for all W.P.(C). Nos. 17375, 17412 & 17413 of 2010-6-service benefits. Therefore it is clear and evident that thecompetent authority has already taken a decision ascontemplated under Rule 56B (1)(b). While considering thequestion regarding payment of full pay and allowances forthe period of suspension, the relevant provision applicable is Sub Rule (3) of Rule 56B. It provides that, if the competentauthority to order reinstatement is of the opinion that thesuspension was 'wholly unjustified', the delinquent officershould be paid full pay and allowances, to which he wouldhave been entitled had he not been suspended. In the caseat hand, the Board in Exhibit P6 order has not arrived at anyconclusion that the suspension was 'wholly unjustified'.Hence merely on the basis of decision of the Board to treatthe period of suspension as duty, the petitioners does notbecome automatically entitled for pay and allowances. Evenin the case of Sri.G.Mohanachandran, as evident from Exhibit P5(b), there is no finding to the effect that the Boardhad arrived at a conclusion that the suspension was 'wholly W.P.(C). Nos. 17375, 17412 & 17413 of 2010-7-unjustified'. Going by terms of Exhibit P5(b) it is not evidentthat pay and allowances was ordered to be paid to Sri.G.Mohanachandran on the basis of any findings that thesuspension was 'wholly unjustified'. Therefore I do not findany reason to interfere with the rider imposed in Exhibit P6to the extent of denying pay and allowances for the brokenperiod.

However, learned counsel for the petitionersasserted that Sri.G.Mohanachandran was paid full pay andallowances for the period of suspension, pursuant to ExhibitP5(b) order. If the assertion is true and correct, then thedenial of pay and allowances to the petitioners for thebroken period will become discriminatory. Therefore I aminclined to direct the 1st respondent Board to consider claimif any made by the petitioners for allowing pay andallowances by modifying Exhibit P6 order, in caseSri.G.Mohanachandran was paid the pay and allowances duefor the period of suspension. it is to be noted that W.P.(C). Nos. 17375, 17412 & 17413 of 2010-8-Sri.G.Mohanachandran was also an officer suspendedthrough the very same order on the very same set ofallegations. Petitioners are entitled for an equal treatmentas in the case of the said officer.