Sivan T P. vs Assistant Engineer
2021 Latest Caselaw 1577 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.21454 OF 2015(F)


PETITIONER:

               SIVAN T P., S/O. C.K GOVINDAN,
               ELECTRICITY WORKER,66 KV SUB STATION,
               SREKANDAPURAM,KANNUR

               SRI.KALEESWARAM RAJ
               KUM.A.ARUNA
               KUM.THULASI K. RAJ
               SRI.VARUN C.VIJAY

RESPONDENTS:

      1        ASSISTANT ENGINEER, KSEB
               66 K V SUB STATION, SREEKANDAPURAM,
               KANNUR 670 631

      2        DEPUTY CHIEF ENGINEER
               ELECTRICAL CIRCLE, VAIDHYUDHI BHAVANAM,
               KANNUR 670 002

      3        CHIEF ENGINEER (HRM), VAIDHYUDHI BHAVANAM,
               PATTOM, THIRUVANANTHAPURAM 695 004

               SRI.K.S.ANIL, SC, KSEB
               SMT.ANEETHA A.G., SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.21454 OF 2015(F)

                                    2


                              JUDGMENT

Dated this the 15th day of January 2021

The petitioner says that while he was working as an

Electricity Worker in the services of the Kerala State

Electricity Board (KSEB), he was issued with Ext.P3 notice to

show cause as to why his services be not terminated, since he

had been implicated in a criminal case prior to his entry into

service.

2. The petitioner concedes that he was arrayed as an

accused in Crime No.53/1999 of the Iritty Police Station and

charged under Sections 326 and 448 of the Indian Penal Code

(IPC) but that after trial, the Court acquitted him of the

imputation under Section 448, but convicted him to undergo

rigorous imprisonment for a period of two years, along with

the fine, under Section 326 of the IPC.

3. The petitioner says that this judgment was taken up in

an appeal before the Sessions Court, Thalassery, by filing

Criminal Appeal No.596/2003, in which again, his conviction

under 326 was confirmed but that the punishment was

reduced to rigorous imprisonment for one year. The petitioner

asserts that against this judgment, he preferred Crl.R.P.

No.3722/2008 and that Ext.P2 order had been issued by this WP(C).No.21454 OF 2015(F)

Court staying the sentence on certain terms.

4. I notice that when this writ petition was initially filed,

the challenge was only against Ext.P3 show cause notice.

However, pending this lis, the KSEB issued Ext.P5 order

removing the petitioner from service, apparently invoking the

provisions of Rule 10(b) of the KS & SSR and this constrained

the petitioner to seek an amendment of this writ petition,

producing the said order as Ext.P5. Consequent to the grant

of permission by this Court for amending the writ petition, the

petitioner challenges Exts.P3 and P5 and argues that they are

both bad for the reason that the criminal proceedings against

him has not yet been concluded.

5. Today, when this matter was called, Sri.Kaleeswaram

Raj, the learned counsel for the petitioner, brought to my

notice that this Court has now disposed of

Crl.R.P.No.3722/2008 filed by his client, through a judgment

dated 29.09.2020, wherein, the findings of the Trial Court and

that of the First Appellate Court on Section 326 IPC has been

confirmed, but that since the offence is not one that involves

moral turpitude, the sentence has been modified to simple

imprisonment till the rising of the Court and to pay

compensation of Rs.15,000/- to the de facto complainant. He WP(C).No.21454 OF 2015(F)

therefore, prayed that Ext.P5 be set aside and the Board be

directed to reconsider his case, keeping in mind the

declarations of law made by this Court in KSEB Ltd., Tvm

and Others v. Damodaran P. [2017 (3) KLT 794], in which

the ambit of Rule 19 of the Kerala State Electricity Board

Employees (Classification, Control and Appeal) Regulations,

1969 had been explained and made clear that the KSEB has

power to either modify the punishment or to reinstate an

employee, if sufficient cause is made out. Sri.Kaleeswaram

Raj, therefore, prays that this writ petition be ordered at least

to such extent.

6. In response, the learned standing counsel for the

KSEB, Smt.Aneetha A.G., submitted that a counter affidavit

has been filed on record to the unamended writ petition, in

which it has been explained that, under the sanction of Rule

10(b) of the KS & SSR, it is incumbent upon the KSEB to verify

the conduct and antecedents of every employee before they

are allowed into their services. She submitted that since the

petitioner had already been implicated in a criminal case and

since conviction against him under Section 326 IPC has now

been upheld by all the Courts, the KSEB was well within its

power to have issued Ext.P5; and she, therefore, prayed that WP(C).No.21454 OF 2015(F)

this writ petition be dismissed. She relied upon the judgment

of the Hon'ble Supreme Court in Jameel Ahammed Qureshi

v. Municipal Council [1991 suppl. 1 SCC 302] in

substantiation of her contentions that the dismissal of the

employee was justified when he has been convicted and

sentenced for an offence in moral turpitude. She concluded

her submissions by saying that as per Government Order

No.G.O.(P) 26/98/P&ARD dated 27.08.1998, if an employee is

convicted by a Criminal Court and sentenced to undergo

imprisonment or payment of fine, he will require to be

dismissed or removed from service, irrespective of the fact

that an appeal is pending or that the execution of sentence is

suspended.

7. When I assess the submissions of the KSEB in support

of Ext.P5, it is indubitable that, had the petitioner been

convicted of an offence of moral turpitude, then the

declarations of the Hon'ble Supreme Court in Jameel

Ahammed Qureshi (supra) would apply in all its force.

However, when I examine the judgment of this Court in

Crl.R.P.No.3722/2008, it is unmistakable that this Court has

reduced the punishment imposed upon the petitioner, after

finding him guilty under Section 326 of the IPC, because the WP(C).No.21454 OF 2015(F)

offence alleged is not one that involves moral turpitude.

8. Consequently, therefore, a corollary question would

arise as to what would be the jurisdiction of the KSEB in these

matters, particularly in view of the provisions of the

Regulations aforementioned.

9. As rightly stated by Sri.Kaleeswaram Raj, a learned

Division Bench of this Court in Damodaran P. (supra) has

expatiated on the purlieus of the Regulations and has found

that the KSEB is competent to reinstate an employee who has

been removed from service or to set aside punishments for

valid and reasonable cause.

10. Coming to the facts of this case, there is no doubt

that the petitioner has been convicted under Section 326 of

the IPC; but it has been declared by this Court in the judgment

in Crl.R.P.No.3722/2008 that the offence is not one that

involves moral turpitude.

11. As I have said above, for this reason, the judgment of

the Supreme Court in Jameel Ahammed Qureshi (supra) is

distinguishable on the facts involved; while the Government

Order referred to by Smt.Aneetha A.G. would have no

application because Ext.P5 had been issued pending the

Revision of the petitioner against his conviction and his WP(C).No.21454 OF 2015(F)

punishment has been modified subsequently through the

judgment of this Court in the Crl.R.P.

12. Since it is thus ineluctable that the KSEB had issued

Ext.P5 before the judgment of this Court had been delivered, I

am of the firm view that the case of the petitioner deserves to

be reconsidered by its competent Authority, taking note of the

applicable Regulations as also the judgment of this Court

Damodaran P. (supra).

Resultantly and since Ext.P5 has been issued even before

the judgment of this Court in Crl.R.P.No.3722/2008 had been

delivered, I set it aside; however with a concomitant liberty

being reserved to the KSEB to issue fresh orders with respect

to the petitioner's service, adverting to my observations above

and implicitly following the ratio in Damodaran P. (supra).

This writ petition is thus ordered.

                                         Sd/- DEVAN RAMACHANDRAN

    Stu                                           JUDGE
 WP(C).No.21454 OF 2015(F)





                               APPENDIX
    PETITIONER'S EXHIBITS:

    EXHIBIT P1        TRUE COPY OF THE JUDGMENT IN CRL.APPEAL NO

596/2003 OF THE SESSIONS COURT,THALASSERY

EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN CRL.M.A 11454/2008 IN CRL.RP NO 3722/2008

EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT

EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT

EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29/09/2020 IN CRL. REV. P. NO.3722/2008.

EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 20/10/2020 ISSUED BY THE JUDICIAL 1ST CLASS MAGISTRATE, MATTANNUR.