Sivan T.P vs State Of Kerala
2022 Latest Caselaw 4805 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                     THE HONOURABLE MR.JUSTICE V.G.ARUN
         FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
                           WP(C) NO. 30721 OF 2021
PETITIONER:

              SIVAN T.P.
              AGED 45 YEARS
              S/O. LATE GOVINDAN .C.K., RESIDING AT T.P. HOUSE,
              ALASSY, THILLANKERY P.O., KANNUR-670 702
              BY ADVS.
              SRI. KALEESWARAM RAJ
              SRI. VARUN C.VIJAY
              SMT. THULASI K. RAJ


RESPONDENTS:

     1        STATE OF KERALA
              SECRETARY TO GOVERNMENT, DEPARTMENT OF POWER,
              SECRETARIAT, THIRUVANANTHAPURAM-695 001
     2        KERALA STATE ELECTRICITY BOARD LTD.,
              VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004
     3        CHAIRMAN AND MANAGING DIRECTOR,
              KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI BHAVANAM,
              PATTOM, THIRUVANANTHAPURAM-695 004
     4        CHIEF ENGINEER (HRM)
              KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI BHAVANAM,
              PATTOM, THIRUVANANTHAPURAM-695 004

              BY ADVS.
              SRI. VENUGOPAL. V., GOVERNMENT PLEADER
              SRI.K.S.ANIL, SC, KSEB




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.03.2022,
THE COURT ON 29.04.2022, DELIVERED THE FOLLOWING:
 W.P.(C) 30721 of 2021

                                   2



                               JUDGMENT

Dated this the 29th day of April, 2022

The petitioner entered the service of the second

respondent Board as Mazdoor (Electrical Worker) on

02.05.2014. Much prior to the petitioner's

appointment, a crime had been registered against him

for the offences punishable under Sections 448 and

326 of I.P.C. The allegation was that the petitioner had

criminally trespassed into the tea shop of PW1 and

inflicted grievous injuries to PW2 with a billhook. The

jurisdictional Magistrate acquitted the petitioner for the

offence under Section 448 and convicted him for the

office under Section 326 of I.P.C. In the appeal filed

against the conviction and sentence, the Sessions

Court reduced the sentence to rigorous imprisonment

to one year and conformed the sentence of fine as well

as the default sentence. Aggrieved, the petitioner

preferred revision before this Court, which culminated

in Ext.P1 order, affirming the conviction and reducing

the sentence to simple imprisonment for one day, till W.P.(C) 30721 of 2021

raising of the court, and compensation of Rs.15,000/-

to PW1 under Section 357(3) of Cr.P.C. This court also

observed that the offence under Section 326 I.P.C.

being purely private in nature, will not come under the

category of moral turpitude.

2. In the meanwhile, a show cause notice dated

25.06.2015 was issued to the petitioner, proposing to

terminate his service by reason of his conviction in the

criminal case. Thereafter, Ext.P3 order dated

30.09.2015 was issued terminating the petitioner from

the service of the Board. The appeal preferred against

Ext.P3 was also rejected under Ext.P4 order dated

01.03.2016.

3. Challenging the show cause notice and Ext.P3

order of termination, the petitioner preferred W.P.

(C).No. 21454 of 2015. In support of the challenge,

reliance was placed on the Division Bench decision of

this Court in KSEB Ltd., Tvm and others v.

Damodaran P [2017 (3) KLT 794]. Finding

substance in challenge, with particular reference to W.P.(C) 30721 of 2021

the observation in the Criminal Revision Petition that

the offence under Section 326 of I.P.C. will not fall

under the category of offences involving moral

turpitude, this court set aside Ext.P3 order, granting

liberty to the KSEB to issue fresh order with respect to

the petitioner's service, after adverting to the

observations in the judgment (Ext.P2) and the ratio in

Damodaran P (supra). In purported compliance of the

direction, the third respondent issued Ext.P6 order

confirming Ext.P3 order. In the meanwhile, Ext.P4

order had also been passed by the third respondent,

affirming the petitioner's termination from service.

Hence, the writ petition, seeking to quash Exts.P4 and

P6 and direct the respondents to reinstate the

petitioner in service as Mazdoor (Electrical Worker)

with effect from 30.09.2015.

4. Adv. Kaleeswaram Raj, appearing for the

petitioner, assailed Ext.P6 order primarily on the

ground of non-application of mind. It is contended that

the third respondent had passed the order based on W.P.(C) 30721 of 2021

the opinion of the Board's Legal Advisor, without

forming an independent opinion. The order thus

passed under the dictate of a different authority, is

antithetical to the decision making process itself.

Learned Counsel contended that this Court having

observed that the offence under Section 326 of I.P.C.

will not fall within the category of offences involving

moral turpitude, the third respondent committed an

illegality in terminating the petitioner's service for the

sole reason of his conviction for that offence. It is

alleged that, despite the specific direction in Ext.P2

order, the third respondent contumaciously refused to

follow the ratio in Damodaran P.

5. Learned Standing Counsel for the KSEB Ltd.

submitted that Ext.P6 order having been passed after

considering all relevant aspects, there is no scope for

interference with the order, in exercise of the power of

judicial review. It is submitted that the Legal Advisor

of the Board had given a detailed opinion after

considering all factual and legal aspects. Having found W.P.(C) 30721 of 2021

the legal opinion to be correct, the the third

respondent had every right to pass Ext.P6 order based

on the opinion. The mere fact that in Ext.P6 order,

exclusive reference is made to the legal opinion

cannot lead to the inference that the third respondent

had not independently applied his mind. According to

the Standing Counsel, Damodaran's case pertains to

Regulation 19 of the Kerala State Electricity Board

Employees (Classification, Control and Appeal)

Regulations 1969, whereas the petitioner's case is

covered by Rule 10 (b) of the Kerala State &

Subordinate Services Rules, 1958. The petitioner was

appointed temporarily, subject to verification of

antecedents and hence, the Board had the authority

to terminate his service, on being informed about his

conviction in a criminal case. The termination being in

terms of Rule 10(b)(iii) of K.S. & S.S.R., no pre-

decisional hearing is warranted. Reliance is placed on

the decision in Anil Kumar A v. State of Kerala and

others [2012 (2) KHC 257] to bolster the W.P.(C) 30721 of 2021

contention.

6. The following facts are not in dispute. The

petitioner entered the service of KSEB Ltd. on

02.05.2014. The fact regarding his conviction in a

criminal case was informed to the Board through the

petitioner's police verification report dated

02.02.2015. The petitioner's conviction under Section

326 I.P.C. stands affirmed, though his sentence was

reduced to imprisonment for a day. While setting aside

Ext.P3 order by Ext.P2 judgment, this Court made the

following observations.

"Paragraph 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."

After making such observation and setting aside

Ext.P3, the KSEB's liberty to issue fresh orders was

reserved, with the rider that the order should be

passed after adverting to the observations in the W.P.(C) 30721 of 2021

judgment and following the ratio in Damodaran.

7. The legal question emerging from the above

factual scenario is regarding the applicability of the

dictum in Damodaran to the facts of this case and the

impact of the observation in Ext.P1 order that the

offence under Section 326 is not one involving moral

turpitude. In Damodaran, the petitioner was recruited

to the service of KSEB Ltd. as a Mazdoor in the year

2005. While continuing in service, he was convicted

by a criminal court and sentenced to undergo two

years rigorous imprisonment. Consequent to his

conviction, the petitioner was dismissed from service.

Later, the appeal filed by the petitioner was allowed

and he was acquitted of the offence. Thereupon, the

petitioner sought reinstatement in service, which the

Board declined. Hence, he filed writ petition before

this Court. The writ petition was allowed and the

Board directed to reinstate the petitioner with full

back-wages and other benefits, in terms of Rule 18 of

the Civil Services (Classification, Control and Appeal) W.P.(C) 30721 of 2021

Rules, 1960. The judgment was challenged in appeal

by the Board. On the facts of that case, the Division

Bench held that Regulation 19 of the Kerala State

Electricity Board Employees (Classification, Control

and Appeal) Regulations 1969, would apply. It was

also found that the only ground for dismissal being

the conviction of the employee, then upon acquittal,

the employee should be reinstated, even if there is

no provision in the Regulation for such a contingency.

8. In the case at hand, the petitioner's service

is not terminated under Regulation 19. Ext.P4 order

of the third respondent specifically refers to Rule 10

(b)(iii) of the K.S. & S.S.R. as the ground for

termination. Unfortunately, Ext.P4 was not brought

to the notice of the learned Single Judge who had

rendered Ext.P2 judgment. Rule 10 (b) of Kerala

State & Subordinate Services Rules, 1958 being

contextually relevant is extracted hereunder;

"(b) No person shall be eligible for appointment to any service by direct recruitment, unless-

[(i) he satisfies the appointing authority that he is of W.P.(C) 30721 of 2021

sound health, active habits and free from any bodily defect or infirmity rendering him unfit for such service;

(ii) that he does not have more than one wife living or, if the person is a woman, that she is not married to any person who has a wife living; and

(iii) the State Government are satisfied that his character and antecedents are such as to qualify him for such service"

Going by the rule, a person will become eligible

for appointment by direct recruitment only if the

State Government (here the 'KSEB') is satisfied about

the character and antecedents of the appointee. In

Anilkumar (supra), while answering the reference

pertaining to the practice of issuing interim orders,

permitting persons involved in criminal cases to

undergo training on their selection as Police

Constable, the Division Bench held as under;

"Paragraph 8: The proviso occurring after R.10(b)(iii) is a statutory provision. It is that proviso which enables appointment of a person temporarily before the Government are satisfied as to his character and antecedents. That proviso itself contains the statutory command that, if on subsequent verification, the Government are not satisfied of the character and antecedents of that person, the appointment shall be W.P.(C) 30721 of 2021

terminated without notice. When the statutory rule provides for such termination and expressly excludes any pre-decisional notice in that regard, the interpretation given in Suresh (supra) would amount to imposing a condition which is, not only not there in the proviso, but also one that is expressly excluded by the clear terms of that proviso. The authority of the Government to terminate without notice in terms of the second limb of the proviso to R.10(b)(iii) cannot be watered down by judicial decision except by holding that provision as ultra vires. Notwithstanding the fact that there was no challenge to the proviso to R.10(b)(iii) in Suresh (supra), we do not find any ground of invalidity to apply the ultra vires doctrine and read down the said proviso. The view in Suresh (supra) that a person appointed invoking the proviso to R.10(b)(iii) is entitled to notice and opportunity of hearing before being removed as enjoined by that proviso, amounts to re-writing that statutory provision. That is impermissible. The said decision does not lay down the law correctly, in that regard.

9. Not only that, the last limb of the proviso to R.10(b)(iii) itself specifically states that a person appointed in terms of that proviso shall be eligible for appointment in regular service in accordance with the Rules only if his character and antecedents are found satisfactory on subsequent verification. Note (1) under that Rule clarifies that a person appointed under that proviso shall not be treated as a member of the service to which he has been so appointed, unless he is appointed in regular service in accordance with the W.P.(C) 30721 of 2021

Rules. If his character and antecedents are verified and found to be satisfactory, his temporary appointment shall be treated as appointment in regular service from the date of the temporary appointment. This means that a person appointed temporarily under the proviso to R.10(b)(iii) cannot be treated as a member of the service until his character and antecedents, on subsequent verification, are found satisfactory and, following such finding, he is appointed in regular service. Otherwise, the second limb of the proviso would operate and it would oblige the Government or the appointing authority, as the case may be, to terminate the said person's temporary appointment without notice.

10. Logically, an appointee under the proviso to R.10(b)(iii) does not stand to loose anything if, ultimately, his character and antecedents are found to be satisfactory. On the converse, if the finding as to character and antecedents is not satisfactory, it would be perilous in public interest, public service and for the Government to continue such a person in service till he is heard on that issue by giving him a pre-decisional notice. Balancing the scales in that regard also, we do not find the reasoning of Suresh (supra) as acceptable.

11. We may also indicate that R.3 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 would show that persons subject to discharge from service without notice and persons whose appointment and other matters are governed by special provisions, would not fall within those Rules. W.P.(C) 30721 of 2021

The proviso occurring after R.10(b)(iii) of Part II K.S. & S.S.R. stands as a separate law and would be governed only by the provisions in that proviso, unless and until the competent authority is satisfied of the character and antecedents, on verification of the person concerned, and thereafter, inducts him into regular service by appropriate action in accordance with law.

12. At any rate, one who is temporarily appointed cannot expect that he is entitled to be heard before being removed from service on a ground that the Government are not satisfied as to his character and antecedents, which is essentially a condition to enable a person for appointment into service in terms of R.10(b)(iii). The verification of the character and antecedents in terms of the proviso to R.10(b)(iii) of Part II of K.S. & S.S.R. is not one that provides any room for pre-decisional hearing and the view to the contrary laid down in Suresh (supra) does not lay down the law correctly. In the result, the orders dated 21st June, 2011 and 8 th August, 2011, as noted above, are made absolute and it is directed that action shall proceed in strict conformity with the directions contained in those orders. Writ Petitions ordered accordingly. No costs."

9. Going by the dictum in Anilkumar, the

Board's discretion to terminate the service of an

employee based on an adverse report regarding his W.P.(C) 30721 of 2021

character and antecedents, cannot be interfered with

easily. The subjective satisfaction of the employer

cannot be substituted with the finding of the Court.

The observation of the revisional court that the

offence under Section 326 does not involve moral

turpitude, is immaterial in so far as the satisfaction

of Board under Rule 10(b)(iii) is concerned. The

challenge on that premise is hence liable to be

repelled.

10. The submission of learned Counsel for the

petitioner that the language and tenor of Ext.P6 is

not one expected of a person holding the post of

Chairman and Managing Director of the KSEB Ltd., is

well founded. It does not augur well for the holder of

such high office to term the judgment of this Court

as insignificant and to observe that this Court ought

not have interfered with the decision of the

appointing authority. If dissatisfied with the decision

of this Court, the third respondent should have

challenged the decision in appeal, rather than W.P.(C) 30721 of 2021

making unwarranted comments in the order passed

pursuant to this Court's direction. I refrain from

delving further into the matter, hoping that, at least

in future, such unwholesome comments will be

avoided.

In the result, the writ petition is dismissed.

Sd/-

V.G.ARUN

JUDGE NB W.P.(C) 30721 of 2021

APPENDIX OF WP(C) 30721/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.09.2020 IN CRL.

RP NO.3722/2008 EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 15.01.2021 IN WPC NO.21454/2015 EXHIBIT P3 TRUE COPY OF THE TERMINATION ORDER DATED 30.09.2015 ISSUED BY THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER DATED 01.03.2016 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 27.10.2021 BEFORE THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER BEARING NO.VIG/B4/5325/2015/3682 DATED 07.09.2021 ISSUED BY THE 3RD RESPONDENT

RESPONDENTS EXHIBITS: NIL

TRUE COPY

P.A. TO JUDGE