Back
2021 Supreme(Online)(KER) 10395
HIGH COURT OF KERALA
SURESH KUMAR V. – Appellant
Versus
KERALA STATE ELECTRICITY BOARD LTD. – Respondent
WP(C)/26481/2020
Sri. M.K. Thankappan, Standing Counsel
An employee's conviction under appeal cannot be the sole basis for dismissal without proper consideration of due process rights.
Headnote:
Employment - Termination - Kerala State Electricity Board Employees' Regulations - Sections 19, 40 - The court held that termination of an employee pending appeal and conviction is unjustified, emphasizing the need for due process and consideration of the pending appeal.
Fact of the Case:
The petitioner, a Lineman at KSEB, was convicted under Section 498A IPC, leading to his suspension and subsequent removal from service despite a pending appeal, which he argued should prevent dismissal.
Finding of the Court:
The court found that KSEB's action to terminate the petitioner did not take into account the pending appeal, nor the prior reinstatement after a long period of suspension, thus requiring reconsideration.
Issues: Whether the termination of the petitioner by KSEB was justified despite his conviction being under appeal.
Ratio Decidendi: The court determined that a conviction pending appeal does not equate to a final finding of guilt, necessitating KSEB to provide due process before dismissal.
Final Decision: The court set aside the termination order, directing KSEB to reconsider the petitioner's case with a fair hearing.
JUDGMENT
Dated this the 28th day of January 2021 While the petitioner was working as a Lineman in the services of the Kerala State Electricity Board (KSEB), he was charged with certain offences, on the allegation that his wife had committed suicide. Thereafter, he was tried by the Court of the Additional Sessions Judge, Kollam, for commission of offences under Section 498A of the Indian Penal Code .
2. Soon after the petitioner was charged with the above offence, the KSEB placed him under suspension since - he had been detained under police custody for more than 48 days- invoking the provisions of Rule 10 (3) of Kerala State Electricity Board Employees' (Classification Control and Appeal) Regulations, 1969 and a departmental enquiry was also ordered through proceedings of the Executive Engineer, Electrical Devision, Kollam dated 27.09.2017.
3. However, subsequently, he was reinstated in service, based on the letter of the Commissioner of Police, Kollam dated 04.8.2017, consequent to which, the Suspension Review Committee had recommended his reinstatement.
4. Later, on 07.8.2019, the Sessions Court found the petitioner guilty and sentenced him to simple imprisonment for one year along with a fine of Rs.5,000/- and he was issued with a notice to show cause why he be not removed from the service for having been convicted of an offence involving moral turpitude. The petitioner says that he had replied to the same, pointing out that the judgment of the learned Sessions Judge had been taken up in appeal before this Court, by filing Criminal Appeal No.1031/2019, in which the sentence had been suspended through Ext.P4 order and therefore, that he be not removed from service.
5. The petitioner alleges that, however, without considering any of these aspects, the KSEB has now issued Ext.P9 removing him from service solely because he had been found guilty by the Sessions Court, Kollam and thus, prays that same be set aside, since his appeal is pending and he bonafide believes that he will be exonerated by this Court.
6. In response to the submissions made on behalf of the petitioner by his learned counsel Smt.Maitreyi Hegde, the learned Standing Counsel for the KSEB - Sri.K.B.Thankappan, submitted that his client had no other option but to issue Ext.P9, since the petitioner has been, admittedly, found guilty for an offence involving moral turpitude by the Sessions Court. He, however, conceded that, through Ext.P4, this Court has suspended the sentence imposed on the petitioner, but contented that this would not be sufficient for him to seek that he be not removed from service, because it is now well settled that merely because the sentence is so suspended, the conviction cannot be construed to be so. He, therefore, prayed that this Court dismiss this writ petition and allow the KSEB to act further in terms of Ext.P9 order.
7. I have considered the afore submissions and have also examined the materials and documents available on record.
8. It is indubitable – it being virtually admitted – that the KSEB has proceeded against the petitioner singularly because he was involved in a criminal offence involving moral turpitude. Going by the applicable Regulations, there is no doubt that the KSEB can place him under suspension, for the reason that he had been under police custody for more than 48 days. However, pertinently, he had been reinstated in service on the recommendation of the Suspension Review Committee in the year 2017 and had been continuing in service until the time when the Sessions Court issued Ext.P3 judgment on 7.8.2019, convicting him under Section 498A of the IPC . This made the KSEB to issue Ext.P9, saying that since he has been convicted for an offence involving moral turpitude, he cannot continue in service any further, under the applicable Regulations.
9. That said, what is relevant in this case is that the guilt of the petitioner has not been finally found against him, since an appeal against Ext.P3 judgment is pending before t
