P.Rajan vs State Of Kerala
2021 Latest Caselaw 1578 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.24008 OF 2010(A)


PETITIONER:

               P.RAJAN, PULIYULLATHIL THAZHAKUNI,
               P.O.OLAVILAM, CHOKLI, LPSA (RETIRED),
               OLAVILAM UPPER PRIMARY SCHOOL, OLAVILAM,
               KANNUR DISTRICT.

               BY ADVS.
               SRI.P.S.SREEDHARAN PILLAI
               SRI.ARJUN SREEDHAR
               SRI.ARUN KRISHNA DHAN
               SMT.C.G.PREETHA
               SMT.P.RANI DIOTHIMA
               SHRI.T.K.SANDEEP

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
               GENERAL EDUCATION DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

      2        DEPUTY DIRECTOR OF EDUCATION, KANNUR.

      3        DISTRICT EDUCATIONAL OFFICER,
               THALASSERY.

      4        MANAGER, OLAVILAM UPPER PRIMARY SCHOOL,
               THALASSERY, PIN 670 101.

               BY ADVS. SRI.B.KRISHNAN
                        SRI.R.PARTHASARATHY
                        SRI.P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.24008 OF 2010(A)

                                     -2-

                                JUDGMENT

Dated this the 15th day of January 2021

The petitioner impugns Ext.P6, under which

the District Educational Officer, Thalassery,

(DEO) has reviewed his own order, namely Ext.P4

and has directed that the period when he was on

suspension be treated as eligible leave and not

as duty.

2. The petitioner says that Ext.P6 is

wholly untenable, since even though he had been

imputed of certain criminal offences, he had

been subsequently exonerated by a Division Bench

of this Court, which is evident from Ext.P1

judgment. The petitioner says that in spite of

this, the DEO, who had earlier issued Ext.P4

granting him all service benefits during the

period while he was in suspension, reviewed that

order unilaterally, holding that he has been

exonerated only on account of benefit of doubt

and not honorably. The petitioner says that,

therefore, Ext.P6 is without forensic competence WP(C).No.24008 OF 2010(A)

and, therefore, liable to be set aside by this

Court.

3. The learned Senior Government Pleader,

Sri.P.M.Manoj - submitted that a counter

affidavit has been filed on record on behalf of

the Second respondent, wherein, it has been

averred that the petitioner retired from the

services on 31.03.2007 and that all service

benefits, including pension, has been paid to

him. Sri.P.M.Manoj further submitted that

while, so, it was noticed that regularisation of

the period of suspension of the petitioner as

per Rule 56(B)(3) of Part I Kerala Service Rules

is irregular, since he had been exonerated by

the Criminal Court only by giving him the

benefit of doubt and that he has not been

exonerated of the blame. He, therefore, prays

that Ext.P6 be allowed to operate and that this

writ petition be dismissed.

4. In the backdrop of the submissions made

by the learned Senior Government Pleader, I have WP(C).No.24008 OF 2010(A)

examined Ext.P1 judgment very carefully. After

going through the evidence on record, a learned

Division Bench of this Court found as below in

the said judgment:

"27. In the above facts and circumstances of this case, we are fully satisfied that PW.2 is a witness, who cannot be relied, accepted and acted upon to come to a conclusion that it was the accused who committed the crime against the deceased. There is the possibility that PW.2 had been made use of either by the faction of the deceased or by the prosecution for bringing in a theory of a particular version, thereby roping in the accused in the crime. Therefore, considering the entire evidence adduced by the prosecution through this material witness, PW.2, we are reluctant to accept that the evidence, without further corroboration from independent testimony of the witnesses. In such circumstances, we disbelieve the whole prosecution version and hold that all the doubts created and available in the evidence have to be given to the benefit of the accused. We are not inclined to accept and act upon the uncorroborated sole testimony of PW.2 for the reasons aforesaid. Hence, the conviction of the accused found by the court below is only to be set aside, and we do so."

5. It is inevitable from the declarations

in the judgment that the petitioner has been

exonerated for want of evidence and lack of

materials to link him to the crime in question.

6. I cannot, therefore, see how the WP(C).No.24008 OF 2010(A)

authorities have found this to be an acquittal

based solely on benefit of doubt, when the

Division Bench has made it very clear that the

witnesses in the case cannot be believed and

that the petitioner cannot be convicted on such

uncorroborated testimony of PW2 therein. It is

true that this Court has used the words 'benefit

of doubt' in the afore extracted paragraph, but

this is in the context that since the evidence

available is unworthy, the petitioner cannot be

convicted and that he will certainly obtain the

benefit of a suspicion that the case imputed

against him is unworthy. This does not,

however, mean that the petitioner has been set

at liberty on account of mere benefit of doubt,

but it is clear that it has been firmly found

that there is no material to fasten him with any

blame or criminal liability.

I, therefore, am of the firm view that

Ext.P6 order of the third respondent-DEO cannot

find favour of this Court and that the same is WP(C).No.24008 OF 2010(A)

liable to be set aside.

Resultantly, this writ petition is ordered

and Ext.P6 is set aside; with a consequential

direction to the respondents to act implicitly

in terms of Ext.P4 order issued by the said

authority.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.24008 OF 2010(A)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMMON JUDGMENT IN CRL.

APPEAL NO.10/2002 DATED 17/11/2003 OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 28/11/2003 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE VIDE ORDER NO. 11/03-04 DATED 19/07/2004 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ORDER NO. B5-

11762/2004/K.DIS. DATED 19/11/2004 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE INTIMATION NO. B5-

3311/2005 DATED 28/03/2005 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.B5-11015/08 DATED 02/07/2009 ISSUED BY THE 4TH RESPONDENT.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE