Kerala High Court
State Of Kerala vs G Sunilkumar on 3 October, 2024
Author: Murali Purushothaman
Bench: A.Muhamed Mustaque, Murali Purushothaman
OP(KAT) NO. 279 OF 2024 : 1 :
2024:KER:73266
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
OP(KAT) NO. 279 OF 2024
AGAINST THE ORDER DATED 02.06.2023 IN OA NO.870 OF 2019 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1-4 IN OA:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
IN CHARGE OF HOME & VIGILANCE,GOVERNMENT OF
KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
2 STATE POLICE CHIEF,
POLICE HEADQUARTERS, VELLAYABALAM,
THIRUVANANTHAPURAM, PIN - 695010
3 INSPECTOR GENERAL OF POLICE,
THIRUVANANTHAPURAM RANGE, OFFICE OF THE
INSPECTOR GENERAL OF POLICE, TVPM RANGE,
NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695033
4 DEPUTY SUPERINTENDENT OF POLICE,
DISTRICT SPECIAL BRANCH,
OFFICE OF THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN - 695033
BY SR.GP SRI.A.J.VARGHESE
RESPONDENT/APPLICANT IN OA:
G SUNILKUMAR, AGED 49 YEARS
OP(KAT) NO. 279 OF 2024 : 2 :
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S/O K GANAGADHARAN, INSPECTOR STATION HOUSE
OFFICER, KATTAKADA POLICE STATION, NEDUMANGAD
SUBDIVISION,THIRUVANANTHAPURAM RURAL,
THIRUVANANTHAPURAM- PERMANENTLY RESIDING AT
BHAVAYAMI, MALAMEKKARA, PERINGANAD, ADOOR,
PATHANAMTHITTA- 691551.
BY ADVS.
Nandakumar P
VIVEK VIJAYAKUMAR(K/1018/2016)
T.G.SEETHAL(K/1235/2004)
MERIN K JIMMY(K/003922/2023)
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 03.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT) NO. 279 OF 2024 : 3 :
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JUDGMENT
Murali Purushothaman,J.
The State of Kerala, the State Police Chief, the Inspector General of Police, Thiruvananthapuram Range, the Deputy Superintendent of Police, District Special Branch, Thiruvananthapuram have filed this Original Petition (KAT) challenging the order of the Kerala Administrative Tribunal dated 02.06.2023 in O.A. No.870 of 2019. The petitioners were respondents 1 to 4 in the original application and the respondent herein was the applicant.
2. The 3rd petitioner, the Inspector General of Police issued Annexure-A3 ordering an oral enquiry against the respondent/applicant, who was working as Sub Inspector of Police, Varkala Police Station on the ground that he refused to register a case on a complaint received by him. The respondent was issued with Annexure-A4 memo of OP(KAT) NO. 279 OF 2024 : 4 : 2024:KER:73266 charges and statement of allegations. The 4 th petitioner, the Deputy Superintendent of Police conducted an oral enquiry and submitted Annexure-A5 PR minutes finding the respondent guilty of the charges. The 3rd petitioner issued Annexure-A6 show cause notice to the respondent proposing a punishment of barring of increment for one year with cumulative effect. The respondent submitted his explanation. However, the 3rd petitioner, by Annexure-A7, confirmed the provisional punishment of barring of increment for one year with cumulative effect. The respondent preferred an appeal to the State Police Chief, the 2nd petitioner and the 2nd petitioner passed Annexure- A8 order finding that there was no wilful negligence on the part of the respondent and modifying the punishment as "increment bar for three months only."
3. The respondent challenged Annexure-A8 order, to the extent aggrieved, before the Government, the 1 st petitioner, by filing Annexure-A9 review petition under OP(KAT) NO. 279 OF 2024 : 5 : 2024:KER:73266 Rule 36A of the Kerala Police Departmental Inquiries (Punishment and Appeal) Rules, 1958 (hereinafter referred to as 'the KPDI (P&A) Rules', for short). On entertaining the Review Petition, the Government issued Annexure-A10 show cause notice to the respondent stating that the misconduct committed by him is grave in nature and that only a lighter punishment has been imposed and directing to show cause as to why the punishment should not be enhanced to a penalty of barring increments for three years with cumulative effect. Thereafter, the respondent was issued Annexure-A11 notice of hearing and was heard by the Deputy Secretary, Home Department. The Government, vide Annexure-A12 order, enhanced the punishment imposed by the State Police Chief in Annexure-A8 to a penalty of barring increments for three years with cumulative effect. Challenging the departmental actions initiated by Annexure-A3 and culminated in Annexure-A12, the respondent filed the OP(KAT) NO. 279 OF 2024 : 6 : 2024:KER:73266 original application.
4. According to the respondent, the issue involved in the complaint was in the nature of a civil dispute and therefore, no criminal case was registered by him. As regards the punishment imposed by Annexure-A12, it is contended that it was passed in violation of Rule 36A of the KPDI (P&A) Rules.
5. Petitioners 1 and 2 filed a reply statement in the O.A contending that there were serious lapses on the part of the respondent to register a case upon receiving the complaint, which necessitated departmental action against him. It is stated that, upon verifying the review petition and PR file, the Government found lapses on the part of the respondent, whose actions tarnished the image of the Police force. It is also stated that the punishment imposed by the State Police Chief did not commensurate with the charges levelled against the respondent and hence the Government decided to issue Annexure-A10 show cause OP(KAT) NO. 279 OF 2024 : 7 : 2024:KER:73266 notice to enhance the punishment. After considering the explanation of the respondent and after hearing him, the Government passed Annexure-A12 order and there is no violation of Rule 36A of the KPDI (P&A) Rules or violation of the principles of natural justice.
6. The Tribunal, by Ext. P4 order, found that Annexure-A10 show cause notice does not refer to any additional information or document which prompted the Government to enhance the penalty to one of increment bar of three years with cumulative effect. The Tribunal observed that in Annexure-A10 notice and Annexure-A12 order, there is absolutely no reference to any new material or at least a new dimension of the available facts to justify enhancing the penalty. Finding that Annexures-A10 and A12 are illegal and arbitrary, the Tribunal set them aside and upheld Annexure A8 order issued by the State Police Chief. Challenging Ext. P4 order of the Tribunal, the Original Petition is filed.
OP(KAT) NO. 279 OF 2024 : 8 :
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7. In the Original Petition, it is contended that Annexure-A8 order of the State Police Chief is a non- speaking order and no reason was given for deviating from the order passed by the disciplinary authority and the Government, in exercise of the power of review under Rule 36A of the KPDI (P&A) Rules, has enhanced the penalty after giving the respondent an opportunity of hearing. It is contended that under Rule 36A of the KPDI (P&A) Rules, the Government is having ample power to review the order passed by the subordinate authorities and to enhance the penalty.
8. Heard Sri.A.J.Varghese, learned Senior Government Pleader for the petitioners and the learned counsel for the respondent.
Rule 36A of the KPDI (P&A) Rules reads as follows:
"Rule 36A. State Government's power to review.--
(1) Notwithstanding anything
contained in these rules, the
Government may, on their own motion or otherwise after calling for the records of the case, review any order OP(KAT) NO. 279 OF 2024 : 9 : 2024:KER:73266 passed by a subordinate authority which is made or is appealable under these rules, after consultation with the Public Service Commission where such consultation is necessary:
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as they consider proper in the circumstances of the case; or
(d) pass such other orders as they deem fit:
Provided that--
(i) an order imposing or enhancing a penalty, shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such order;
(ii) if it is proposed to impose any of the penalties specified in items (i) to
(m) of Rule 15 in a case in which no enquiry under Rule 6 of these rules has been held, such orders shall be passed only after conducting such an inquiry and after following the procedure prescribed under Rule 17 of these rules.]".OP(KAT) NO. 279 OF 2024 : 10 :
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9. Under Rule 36A of the KPDI (P&A) Rules, the Government has the power to review any order passed by a subordinate authority and to enhance the penalty. However, the proviso to the Rule says that an order enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such order. It further provides that penalties specified in items
(i) to (m) of Rule 15 shall be passed only after conducting enquiry after following the procedure under Rule 17.
10. The 3rd petitioner, the disciplinary authority, by Annexure-A7 order, imposed a punishment of barring of increment for one year with cumulative effect. The appellate authority found that there is no wilful negligence on the part of the respondent and the punishment was modified as increment bar for three months. The Government took a different view from that of the appellate authority and enhanced the penalty to one of OP(KAT) NO. 279 OF 2024 : 11 : 2024:KER:73266 barring increments for three years with cumulative effect. It is true that, under Rule 36A of the KPDI (P&A) Rules, the Government has the power to review any order issued by a subordinate authority and to enhance the penalty. The authorities empowered under law to impose penalties act as quasi judicial authorities. The proceedings under Rule 36A of the KPDI (P&A) Rules is quasi judicial in nature. While exercising a quasi judicial function, there is a duty to give reasons. The Government should show that it has applied its mind to the explanation submitted by the respondent and provide reasons for deviating from the findings of the appellate authority. No reason has been given as to why the Government has differed from the findings of the appellate authority that there is no willful negligence on the part of the respondent. The Tribunal is quite justified in its finding that the materials that prompted the Government to enhance the penalty are not disclosed in Annexure-A12 order. Therefore, Annexure- OP(KAT) NO. 279 OF 2024 : 12 :
2024:KER:73266 A12 order cannot be sustained. We do not find any reason to interfere with Ext. P4 order of the Tribunal. When Annexure-A12 cannot be sustained, Annexure-A8 order issued by the appellate authority would prevail. The respondent shall suffer the punishment imposed by Annexure-A8.
The Original Petition is, accordingly, dismissed.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
MURALI PURUSHOTHAMAN JUDGE SB OP(KAT) NO. 279 OF 2024 : 13 : 2024:KER:73266 APPENDIX PETITIONER ANNEXURES Exhibit P1 TRUE COPY OF THE O.A NO.870/2019 Annexure A1 TRUE COPY OF THE ORDER DATED 11.06.2010 PRONOUNCED BY THE HONOURABLE HIGH COURT OF KERALA.
Annexure A 2 TRUE COPY OF THE ORDER DATED 17.05.2010 IN WP (C) 12952/2010 PRONOUNCED BY THE HONOURABLE HIGH COURT OF KERALA.
Annexure A3 TRUE COPY OF THE ORDER NO. A2 (A)/ 2863/10 TR DATED 06.05.2010 ISSUED BY THE 3RD RESPONDENT AUTHORIZING DYSP SPECIAL BRANCH THIRUVANANTHAPURAM RURAL TO CONDUCT AN ORAL ENQUIRY.
Annexure A4 TRUE COPY OF THE MEMO OF CHARGE NO.
TR/356/SB/GL/10 DATED 24.09.2010 ISSUED BY THE 4TH RESPONDENT TO THE APPLICANT.
Annexure A5 TRUE COPY OF THE PR MINUTES DATED NIL SUBMITTED BEFORE THE 3RD RESPONDENT BY THE 4TH RESPONDENT OBTAINED UNDER RTI ACT. Annexure A 6 TRUE COPY OF THE SHOW CAUSE NOTICE IN |NO.
A2 (A)- 2863/10/TR DATED 13.04.2012 ISSUED BY THE 3RD RESPONDENT TO THE APPLICANT. Annexure A7 TRUE COPY OF ORDER NO. A2 (A) 2863/10/TR/A2 (A) 64/PR/10 TR DATED 24.08.2012 ISSUED BY THE 3RD RESPONDENT.
Annexure A8 TRUE COPY OF THE ORDER NO. G2/22507/2013
DATED 16.11.2013 ISSUED BY THE 2ND
RESPONDENT.
Annexure A9 TRUE COPY OF THE REVIEW PETITION DATED 27.07.2015 SUBMITTED BY THE APPLICANT BEFORE OP(KAT) NO. 279 OF 2024 : 14 : 2024:KER:73266 THE GOVERNMENT.
Annexure A10 TRUE COPY OF THE SHOW CAUSE NOTICE IN NO.
101543/H3/2015/HOME DATED NIL ISSUED BY THE 1ST RESPONDENT TO THE APPLICANT.
Annexure A11 TRUE COPY OF THE LETTER NO.
101543/H3/2015/HOME DATED 16.12.2017 ISSUED ON BEHALF OF THE 1ST RESPONDENT FOR PERSONAL APPEARANCE OF THE APPLICANT.
Annexure A12 TRUE COPY OF THE GO (RT) NO. 1005/2018/HOME DATED 07.04.2018 ISSUED BY THE FIRST RESPONDENT.
Annexure A13 TRUE COPY OF THE CIRCULAR NO. 20/2003 DATED 13.10.2003 ISSUED BY THE 2ND RESPONDENT. Annexure A13 TRUE COPY OF THE JUDGEMENT IN DR. RENU
(a) CHANDRAN V. SUPERINTENDENT OF POLICE (OP NO.
20650/2002) OF THE HONORABLE HIGH COURT OF KERALA.
Annexure A14 TRUE COPY OF THE JUDGMENT IN SUSEELA V. STATE OF KERALA OF THE HONORABLE HIGH COURT OF KERALA Exhibit P2 TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER DATED 24.11.2020 Annexure TRUE COPY OF APPEAL PETITION DATED R1(a) 07.03.2013SUBMITTED TO THE STATE POLICE CHIEF.
Exhibit P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT ON 19.05.2023 Exhibit P4 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL DATED 02.06.2023