JAYASANKARAN NAMBIAR, J. 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 [supra], as also the facts in the present writ appeal, may be separately noticed. In V.C.Jose's case [supra], 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:
“8. On acquittal in appeal, the respondent was reinstated in service by Ext.P4, as stated earlier. A careful reading of second proviso to clause (a) of Section 18 quoted above would show that the said rule is a special procedure and is applicable when an employee is terminated without any suspension or disciplinary proceedings and not in a case where the employee is kept under suspension during investigation and trial of criminal case and subsequently terminated on the basis of the conviction. A close reading of Rule 58 quoted above would show that suspension pending criminal charges is permissible and in such cases the applicable provision of law is Rule 58, Part I of the Kerala Service Rules and other rules under Chapter VII and not Rule 18 of the Kerala Civil Services (Classification, Control and Appeals) Rules. 2nd proviso to Rule 18 applies only to case where there is no suspension pending enquiry or criminal charges, but termination on conviction by trial court and acquittal in appeal or revision and consequent reinstatement”
Thereafter, after quoting from Chapter VII of Part I KSR, it was held as follows at paragraphs 12, 13 and 15:
“12. Going by the provisions quoted above, we find that it is for the competent authority to determine as to how the period of absence of duty has to be treated. Rule 56B(5) provides for a notice to the officer concerned and also consideration of the representation, if any, made by him. In this case, it is not disputed that the respondent had made representation. It is in pursuance of that representation Ext.P5 order was issued. Thereafter, Ext.P6 representation was also made by the respondent. What is stated in Ext.P6 is that the respondent was acquitted of the charges levelled against him and the absence of duty is to be regularized as duty for all purposes. Going by Ext.P3 judgment, we find that in fact, as mentioned earlier, the respondent was caught red handed while he accepting money from the defacto complainant. The respondent was acquitted with a reason that the evidence available is not sufficient to conclude that the money seized from the respondent was accepted by him as bribe. What is stated in para.12 of Ext.P3 is that the prosecution case appears to be doubtful and benefit of that doubt was given to the appellant. Such being the reason for acquitting the respondent, we find that the respondent was in fact, not acquitted of blame.
13. The learned Government Pleader canvassed our attention to the decision of a Division Bench of this Court in Mohandas v. State of Kerala (W.A.No.1091/2008), wherein an Upper Division Clerk in Regional Transport Office was prosecuted under the Prevention of Corruption Act, convicted and sentenced. The conviction and sentence were confirmed in appeal. The Apex Court quashed the entire proceedings for noncompliance of section 19(3) of the Prevention of Corruption Act. Thereafter, the Department conducted an enquiry. In the meanwhile, the complainant therein died and no evidence could not be collected. The charges were not clearly established. The officer was reinstated without paying back wages. The Division Bench held that Rule 18 has no application. It declined to interfere with.
15. Going by the ruling cited from either side and Ext.P3 judgment, which we mentioned earlier, we find that the case on hand is identical to Mohandas's case (supra) and that the ruling in other cases has no application, especially going through sub rule 7 and 8 of Rule 56B of Kerala Service Rules. The respondent is not entitled to claim full back wages during the period of absence of duty, as the period spent on duty. Whereas, it is for the competent authority to decide the same after taking into account of the entire facts and circumstances.”
4. As regards the facts in the instant case, the employee in question was working as an Agricultural Assistant in Krishi Bhavan, Njarakkal. By an order dated 7.4.1999, he was placed under suspension in terms of Rule 10(1)(b) of the KCS (CC&A) Rules consequent to his implication and arrest in a vigilance case. He was thereafter convicted and sentenced to imprisonment by the Court of Enquiry Commissioner and Special Judge, Thrissur for offences under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. By an order dated 17.12.2001, he was dismissed from service with effect from 7.4.1999, the date of his suspension. The employee challenged the conviction and sentence in appeal and the appellate court by judgment dated 30.3.2007 set aside the conviction. Thereupon, the employee was reinstated in service but a show cause notice was issued to him proposing to treat the period from 7.4.1999 to 13.5.2007 as duty for the limited purposes of pension as per Rule 56 (5) of Part I KSR on the ground that he was not fully exonerated from the charges levelled against him. Although the employee preferred a representation against the said proposal, the proposal was confirmed. This led the employee to prefer a writ petition [W.P.(C). No.22648/2009] before this Court. The learned Single Judge who heard the matter relied on Rule 18 of the KCS (CC&A) Rules and found that insofar as the dismissal from service of the employee was in terms of Rule 18(iii)(a) of the KCS (CCA) Rules, the consequence of reinstatement would be as provided in Rule 18(iii)(b) of the said Rules. It was also found that since in the case of this employee, the dismissal was made effective from the date of suspension, the entire period for which he was out of service would have to be treated as service for the purposes of determining the pay and allowances that he stood entitled to during the said period. It is against the said judgment of the learned Single Judge, that the State has come up in appeal through the present writ appeal.
2. e provisions of Chapter VII of Part I KSR deal with the entitlement, of officers who face disciplinary proceedings, to pay and allowances for the period of suspension undergone by them as part of the disciplinary proceedings initiated against them. The procedure to be followed for the imposition of penalties on employees under the services of the Government is contained in Rules 15 to 17 of the KCS (CC&A) Rules. Rule 18 of the KCS (CC&A) Rules provides for a special procedure that can be adopted in certain cases and reads as follows:
"[18. Special Procedure in certain cases:- Notwithstanding anything contained in rules 15, 16 and 17,
(i) where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure; the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit:
Provided that before passing such orders under clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the rules:] [Provided further that where a Government servant is convicted on a criminal charge by a criminal court and sentenced to imprisonment and/or with fine,-
(a) he shall be dismissed or removed from service forthwith by invoking the provisions contained in item
(a) of the second proviso to clause (2) of Article 311 of the Constitution of India irrespective of the fact authority an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, and
(b) in case the said conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, the order of dismissal or removal ceases to have effect and revised orders shall be issued forthwith to reinstate him in service entitling him all the benefits to which he would have been entitled had he been in service:
Provided also that in case where conviction is on a summary trial for petty offences and the sentence is for a fine upto Rupees Two Thousand only such conviction shall not be treated as a conviction for the purpose of this rule and for the entry into service or retention in service as the case may be.] It can be seen from a perusal of Rule 18 of the KCS (CC&A) Rules that it starts with a non obstante clause and is a procedure that is to be adopted notwithstanding anything contained in Rules 15, 16, 17 and 18 of the KCS (CC&A) Rules. That apart, as per the second proviso to Rule 18(iii), a special procedure is provided for dismissing or removing from service, a Government servant who is convicted on a criminal charge by a criminal court and sentenced to imprisonment and/or with fine. As per the said provision, the Government servant can be dismissed or removed from service forthwith, irrespective of the fact that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction. The provisions of Rule 18 (iii)(b) make it clear that, in case the said conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, the order of dismissal or removal ceases to have effect and revised orders shall be issued forthwith to reinstate him in service entitling him to all the benefits to which he would have been entitled had he been in service. It is apparent from a reading of the provisions of Rule 18 of the KCS (CC&A) Rules, therefore, that it provides for a fast track method of dismissing, or removing from service, a Government servant based solely on his conviction on a criminal charge by a criminal court and on finding that he is sentenced to imprisonment and/or with fine. This is in sharp contrast to the procedure prescribed under Rules 15 to 17 for proceeding against a Government servant in connection with the imposition of a major penalty such as dismissal or removal from service, on him. The provisions of Chapter VII of Part I KSR and in particular Rules 54 to 57 of Chapter VII of Part I KSR deal with payments that an employee, who is facing disciplinary proceedings, may be entitled to on completion of the said proceedings against him.
3. the case of an employee against whom disciplinary proceedings are initiated by the issuance of an order of suspension followed by his dismissal from service in terms of Rule 18(iii)(a) of the KCS (CC&A) Rules, then, on his reinstatement in terms of Rule 18(iii) (b) he is put back in the position in which he was at the time of his dismissal from service. The employer then has to take a decision as to whether or not the disciplinary proceedings against him should continue or not. Based on the outcome of the disciplinary proceedings against the employee, the pay and allowances due to the employee during the period of his suspension will have to be determined in accordance with Chapter VII of Part I KSR.
4. the writ appeal with which we are concerned, it is seen that the employee in question was suspended with effect from 7.4.1999 in terms of Rule 10(1)(b) of the KCS (CC&A) Rules. Thereafter he was dismissed from service with effect from 7.4.1999 by an order dated 17.12.2001 passed in accordance with Rule 18(iii) (a) of the KCS (CC&A) Rules. The dismissal with effect from an anterior date namely from 7.4.1999, was obviously wrong because even as per the provisions of Rule 18 of the KCS (CC&A) Rules under which the disciplinary authority was acting, the dismissal from service, consequent to a conviction, could only be forthwith i.e. from the date of conviction. On his reinstatement consequent to his acquittal, the employee would be entitled to all consequential benefits, as envisaged under Rule 18(iii)(b) of the KCS (CC&A) Rules, which he would have been entitled to had he been in service. In the instant case, therefore, the employee would have to be treated as having been under suspension for the period from 7.4.1999 to 17.12.2001. Further, for the period from 17.12.2001, the date of his dismissal from service to 13.5.2007, the date of his acquittal and consequent reinstatement in service, the employee would be entitled to all benefits that he would have been entitled to had he been in service during the said period.
5. V.C.Jose's case [supra], the Division Bench while considering the appeal took the view that in cases where a Government servant is suspended pending criminal charges, and his services were thereafter terminated based on a conviction by the criminal Court, then on his re-instatement consequent to an acquittal in the criminal case, he would not be entitled to treat the period of his absence from duty as service as contemplated in Rule 18 of the KCS (CCA) Rules. In taking this view, the Division Bench relied on the decision of another Division Bench in Mohandas v. State of
Kerala [W.A.No.1091 of 2008].
6. Mohandas's case [supra], the facts were that an U.D.Clerk in the Regional Transport Office was prosecuted under the PC Act, convicted and sentenced. The conviction and sentence were affirmed in appeal. Subsequently the Supreme Court quashed the proceedings for non-compliance with Section 19(3) of the PC Act. It was thereafter that the department conducted an enquiry. In the meanwhile, however, the complainant died and no evidence could be adduced. The proceedings were therefore concluded holding that the charges against the employee were not established. The employee was then reinstated without paying backwages. In the writ petition filed by the employee claiming backwages based on the provisions of Rule 18(b) of the KCS (CC&A) Rules, the Single Judge found that Rule 18 (b) had no application to the facts of that case and the entitlement of the employee to backwages pursuant to his reinstatement would have to be in accordance with Rule 56B(v) of Part I KSR. This finding of the Single Judge was sustained in the writ appeal preferred by the employee.
7. ur view, there is nothing in Mohandas's case [supra] or under the KSR, on which reliance has been placed by the Division Bench in V.C.Jose's case [supra], which would suggest that in the event of a reinstatement of an employee based on an acquittal in terms of Rule 18(iii)(b) of the KCS (CC&A) Rules, the treatment to be accorded to the period of absence from duty between the date of termination and the date of his subsequent re-instatement should be in the manner contemplated under Chapter VII of KSR. The said finding of the Division Bench in V.C.Jose's case [supra] is clearly erroneous in law. The pay and allowances due to the employee, for the period during which he was absent from duty on account of the termination of his service consequent to a conviction, would have to be in the manner contemplated under R.18(iii) (b) of the KCS(CCA) Rules and he would be entitled to all benefits he would have been entitled to had he continued in service.
8. he light of our answer to the issue referred, we are of the view that the decision of the Division Bench in V.C.Jose's case [supra] does not lay down the law correctly and requires to be overruled. We do so. Further, based on our answer to the reference, we uphold the decision of the learned Single Judge to the extent it holds the petitioner entitled to all service benefits for the period from 17.12.2001 to 13.5.2007. We however set aside the judgment of the learned Single Judge to the extent it finds the petitioner entitled to all service benefits even for the period from 7.4.1999 to 17.12.2001, when he was under suspension. His entitlement to pay and allowances for the said period would ordinarily have to be determined in accordance with the provisions of Chapter VII of the KSR. Taking note, however, of the considerable time that has elapsed during the course of litigation before this Court, we do not deem it necessary to remit the matter back to the Government for a computation of the said entitlement at this stage. The petitioner will be entitled to retain the amounts he has already received from the Government towards his entitlement for the said period.
The writ appeal is thus partly allowed.
ASHOK BHUSHAN ACTING CHIEF JUSTICE A.M.SHAFFIQUE JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE prp