E.U.Saviar vs State Of Kerala - Represented By
2021 Latest Caselaw 1012 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                      WP(C).No.25062 OF 2011(G)


PETITIONER:

               E.U.SAVIAR, AGED 51 YEARS, S/O.UTHUPU,
               HEADMASTER, GOVT.L.P.SCHOOL, KOTTACHERRY,, KASARAGOD
               DISTRICT.

               BY ADVS.
               SRI.M.SASINDRAN
               SRI.V.VENUGOPAL

RESPONDENTS:

      1        STATE OF KERALA - REPRESENTED BY
               SECRETARY TO THE GOVERNMENT DEPARTMENT OF
               GENERAL EDUCATION, SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE DIRECTOR OF PUBLIC INSTRUCTION
               THIRUVANANTHAPURAM - 695 001.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               KASARGOD - 671 121.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               HOSDURG, KASARGOD - 671 121.

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.25062 OF 2011(G)

                                       2


                                 JUDGMENT

Dated this the 12th day of January 2021

The petitioner says that while he was working as the

Headmaster of the Government L.P.School, Kottacherry, he was

placed under suspension on the basis of certain allegations

made against him by the parents of a student. He says that he

was, however, honourably acquitted, through Ext.P8 judgment,

by the Court of the Judicial First Class Magistrate - I, Hosdurg;

but that when he approached the competent Educational

Authorities for benefits during the period when he was under

suspension, it was denied to him saying that he has not been

acquitted honourably. The petitioner, therefore, impugns

Exts.P13 to P16, which excludes the period of 635 days - when

he spend on suspension - as duty; and prays that the

respondents be directed to issue appropriate orders reckoning

this period as duty for all purposes.

2. In response to the afore submissions of

Sri.M.Sasindran, the learned counsel for the petitioner, the

learned Senior Government Pleader, Sri.P.M.Manoj, submitted

that a counter affidavit has been filed on record, wherein, the

following has been stated in paragraphs 13 to 16. WP(C).No.25062 OF 2011(G)

"13. It is submitted that Exhibits P12, P13, P14 orders are legal and sustainable. The LWA applied for regularizing the suspension period can be granted only as per rule 88 part I KSR.

14. It is submitted that the Honourable court in its judgment itself clearly stated that the petitioner was acquitted giving the benefits of doubt as the evidence produced by the prosecution is not sufficient to prove the averments. Hence the petitioner cannot be considered as fully exonerated from charges. The PW1 to III having declared as hostile is also a reason for the court to arrive at such a conclusion.

15. It is submitted that on scrutiny of the judgment it can be seen that the petitioner is not fully exonerated of the charges but let off granting the benefit of doubt in the absence of proven evidence and at the instance the prosecution witnesses disowned their statements. So the petitioner cannot be considered as fully exonerated of the charges. As he is not exonerated of the charges the suspension period cannot be treated as duty. Now the said period is treated as leave on the written application submitted by the petitioner. The litmus test prescribed in the case law is followed in the instant case also.

16. It is submitted that the petitioner was acquitted of charges by the court of law only on the ground that the adduced evidences were not established by the prosecution and the prosecution witness disowned their earlier statements. The court had granted the benefits of doubt and acquitted him. This does not mean that he was fully exonerated from the charges. The departmental action against the petitioner is guided by the service rules. The petitioner has no right to claim to treat his suspension period as duty in the light of the fact that he was acquitted by the court according the benefit of doubt for want of established evidence. Hence the decision to treat the period of suspension as leave is legal and justifiable."

3. He concluded his submissions by saying that since the

judgment of the Criminal Court records that the petitioner was

acquitted solely on the basis of benefit of doubt, he is not WP(C).No.25062 OF 2011(G)

entitled to have his period of suspension reckoned as duty,

under the provisions of Rule 57 Part I of the KSR.

4. The submissions of the learned Government Pleader as

afore make it indubitable that Exts.P13 to P15 have been

issued only because the Educational Authorities are under the

impression that the petitioner has not been honourably

acquitted by the competent Magistrate's Court. I, therefore,

have examined Ext.P8 judgment of the said Court very closely.

The judgment, after analysing the evidence available on record,

records thus:

"11. Thus on a consideration of the evidence on records it can be seen that the material witnesses examined on the side of the prosecution namely PW1 to PW3, were turned against the prosecution. They have no case that accused have committed unnatural sex on CW2. It is true that in Ext.P1 the name of the accused is mentioned. But PW1 who has given the Ext.P1 statement has disowned the same. His definite version is that he has not stated to the police that accused has committed unnatural sex on his daughter namely CW2. Under such circumstances, in the absence of any corroborative evidence to establish the averment in Ext.P1 it is not possible to reach in a finding against the accused. As PW1 who has given Ext.P1 statement, has disowned the averment in the statement, It is the burden of the prosecution to prove the averments by producing cogent evidence. Prosecution has not made any attempt for the same. Under such circumstances, I am of the view that accused is entitled to get the benefit of doubt in this case. Therefore I find point No.1 in favour of the accused and against the prosecution.

12. Point No.2 In view of the above finding this point does not arise for consideration.

13. In the result, I find accused is not guilty of the offence punishable u/s 377 IPC. Accused is hereby WP(C).No.25062 OF 2011(G)

acquitted u/s 248(1) Cr.P.C. His bail bond stands cancelled and he is get at liberty forthwith."

5. Presumably, the Educational Authorities have entered

into the conclusion that the petitioner has not been acquitted

honourably, but only on the basis of benefit of doubt because

the Criminal Court passingly has used these words in the last

line of paragraph 11 extracted above. However, a full reading

of the judgment make it apodictic that it has been found

affirmatively that there is absolutely no evidence to establish

the guilt against the petitioner and therefore, that he is

deserving of being acquitted of all charges and resultantly of

all blame. When the findings of the Criminal Court are to such

effect, I am afraid that the respondents could not have

interpreted it to assert that that petitioner was not acquitted

honourably and that he was only given a benefit of doubt. In

fact, the judgment unequivocally affirms that there is

absolutely no evidence to link the petitioner to the alleged

incident or to even prove that such an incident ever took place.

If this is not honourable acquittal, then there can be no other

instance of such.

6. That apart, as has been declared by this Court in

Santhosh Kumar v. State of Kerala [ILR 2007 (3) Ker.101] WP(C).No.25062 OF 2011(G)

what is relevant, from the touchstone of Rule 57 of Part I of the

Kerala Service Rules is if the petitioner had been exonerated of

all blame and since this is indubitable from the judgment of the

Criminal Court, I cannot find favour with the orders inpugned

herein.

7. In the afore circumstances, I am certain that Exts.P13

to P16 cannot obtain approval in law and that the competent

Educational Authorities must reconsider the matter in view of

my observations above.

In the result, I set aside Exts.P13 to P16 and direct the

competent Secretary of the Government of Kerala to issue

appropriate orders adverting to Ext.P8 judgment and also to

the provisions of Rule 57 Part I of the KSR and after affording

an opportunity of being heard to the petitioner - either

physically or through video conferencing - leading to an

appropriate decision thereon, as expeditiously as is possible,

but not later than one month from the date of receipt of a copy

of this judgment.

                                        Sd/- DEVAN RAMACHANDRAN

    Stu                                          JUDGE
 WP(C).No.25062 OF 2011(G)




                               APPENDIX
    PETITIONER'S EXHIBITS:

 EXHIBIT P1         TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT
                    DATED 02/08/2004.

 EXHIBIT P2         TRUE COPY OF THE ORDER NO.A3-10565/2004 DATED
                    02/02/2005.

 EXHIBIT P3         TRUE COPY OF THE ORDER DATED 18/02/2005 OF THE
                    3RD RESPONDENT.

 EXHIBIT P4         TRUE COPY OF THE ORDER DATED 14/03/2005.

 EXHIBIT P5         TRUE COPY OF THE JUDGMENT IN WPC NO.9948/2005
                    DATED 28/03/2005.

 EXHIBIT P6         TRUE COPY OF THE ORDER DATED 12/08/2005.

 EXHIBIT P7         TRUE COPY OF THE ORDER DATED 03/10/2006.

 EXHIBIT P8         TRUE COPY OF THE JUDGMENT IN CC NO.1041/2004

DATED 23/01/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,HOSDURG.

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 09/10/2007.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 26/07/2008 ORDER NO.VI/50035/08.

EXHIBIT P13 TRUE COPY OF THE ORDER DATED 06/08/2009.

EXHIBIT P14 TRUE COPY OF THE ORDER DATED 14/12/2009 OF THE ASSISTANT EDUCATIONAL OFFICER, HOSDURG.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 10/02/2010 OF THE 4TH RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 08/10/2010.