Kerala High Court
Jino K R vs State Of Kerala on 4 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
th
SATURDAY, THE 4 DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
OP(KAT) NO. 323 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 28.4.2021 IN OA 1724/2017 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
JINO K R, AGED 35 YEARS,
S/O K C.RAJAN, DRIVER P.C. (352), KERALA POLICE ACADEMY,
RAMAVARMAPURAM, THRISSUR-680631., RESIDING AT KOLLANNUR HOUSE,
NEAR MAIN ROAD, CHALISSERY, PALAKKAD.
BY ADV M.HEMALATHA
RESPONDENTS/RESPONDENTS:
STATE OF KERALA
1 REPRESENTED BY SECRETARY TO GOVERNMENT, HOME (H) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001
THE INSPECTOR GENERAL OF POLICE (TRAINING), KERALA POLICE
2
ACADEMY, RAMAVARMAPURAM, THRISSUR-680631.
THE ASSISTANT DIRECTOR (ADMINISTRATION),
3
KERALA POLICE ACADEMY, RAMAVARMAPURAM, THRISSUR-680631.
OTHER PRESENT:
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (KAT) No. 323 of 2021 2
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
...........................................................................
O.P. (KAT) No. 323 of 2021
[Arising out of the impugned order dated 28.4.2021
in O.A. (TVM) No.1724 of 2017 on the file of the KAT, TVM Bench]
.................................................................
Dated this the 4th day of December, 2021
JUDGMENT
Viju Abraham, J.
Petitioner has instituted the instant O.P. challenging Ext.P1
final verdict rendered on 28.04.2021 by the Kerala Administrative
Tribunal, Thiruvananthapuram Bench in O.A.(TVM) No.1724 of
2017, with the following prayers:
i) Issue an order to set aside Annexure- A7, A9 and 11;
ii) Direct the respondents to treat the period of
suspension of the applicant as duty for all practical
purposes including salary;
iii)to issue such other orders, directions as may be
prayed for and this Hon'ble Tribunal may deem fit on the
facts and circumstances of the case;
iv) Award the cost of the proceedings
2. Petitioner is the applicant in the abovesaid O.A filed before
the Kerala Administrative Tribunal challenging Annexures-A7, A9,
and A11 orders and seeking for a consequential direction to the
respondents therein to treat the period of suspension as duty for all
purposes. As per the averments in the original application, the
petitioner while working under the 3rd respondent was placed under
suspension as per Annexure-A1 order dated 05.09.2014, pending
enquiry into the allegation that the petitioner on 25.08.2014
misbehaved towards the wife of one of his colleagues over the phone
and that he went to the quarters at night when the colleague was not
in the station and he ran away from the place when the neighbours
saw him and the said act of the petitioner lowered the standard and
morale of the Police Academy. A preliminary enquiry was conducted
before the issuance of the Annexure-A1 order of suspension and a
report was submitted on 04.09.2014. It is alleged that the said
preliminary enquiry was conducted behind the back of the petitioner.
Thereafter Annexure-A2 memo of charges and a statement of
allegation were issued on 21.02.2015. Subsequently Sri.K.K.Aji, DySP
(Indoor), Kerala Police Academy was appointed as the enquiry officer
to enquire into the allegations against the petitioner. Annexure-A3
reply statement dated 24.08.2015 was filed by the petitioner before
the enquiry officer. After enquiry, Annexure-A4 report (PR Minutes)
dated 13.10.2015 was submitted to the 3rd respondent. It is
contended that Exts.P1 to P5 statements were recorded at the time of
preliminary enquiry without notice to the petitioner. Further, it is
contended that the complainant, who is a lady was not examined in
the enquiry and therefore, the allegation of misbehavior cannot be
said to be proved.
3. The Disciplinary authority, after accepting Annexure-A4
enquiry report, tentatively decided to impose a punishment of
barring of two increments with cumulative effect, and accordingly
Annexure-A5 show cause notice dated 21.10.2015 was issued. On
21.10.2015 itself the petitioner was reinstated in service by the 3rd
respondent. Petitioner submitted Annexure-A6 detailed written
statement dated 27.10.2015 in reply to Annexure-A5 show-cause
notice. The 3rd respondent, without considering any of the
contentions raised by the petitioner in Annexure-A6 reply, finalised
the disciplinary proceedings as per Annexure-A7 dated 12.11.2015,
imposing a punishment of barring of two increments with cumulative
and regularized the period of suspension as duty for the limited
purpose of pension and gratuity. Aggrieved by Annexure-A7 order,
the petitioner had preferred Annexure-A8 appeal dated 10.12.2015
before the 2nd respondent. Without considering any of the
contentions raised in the appeal filed by the petitioner, the same was
dismissed as per Annexure-A9 order dated 29.02.2016. Aggrieved by
the orders contained in Annexures A7 and A9, the petitioner
preferred Annexure-A10 review dated 21.06.2016 before the 1st
respondent. The Government rejected the said review as per
Annexure-A11 order dated 29.05.2017. It is aggrieved by the same the
petitioner had approached the Kerala Administrative Tribunal,
Thiruvananthapuram Bench by preferring O.A.(TVM) No.1724 of
2017.
4. A detailed reply statement was filed on behalf of the 1st
respondent mainly contending that the allegation against the
petitioner stands proved in the enquiry and after proper
consideration of the contentions raised by the petitioner that the
Government had rejected the appeal as well as the review submitted
by him. In the enquiry, 6 witnesses were examined, and only after a
proper and fair enquiry that the enquiry officer has found that the
allegation against the petitioner is proved. It is contended that ample
opportunity of hearing was granted to the petitioner in the enquiry
and also at the stage of appeal as well as review. Non-examination of
the complainant lady will be of no consequence in as much as the
allegation against the petitioner is proved beyond doubt in the
enquiry. Annexures A7, A9, and A11 orders are issued in accordance
with law and the averment to the contrary is false and incorrect. The
charges against the petitioner are proved beyond doubt and the
punishment awarded is only proportionate to the alleged misconduct
committed by the petitioner and therefore the respondents sought for
dismissal of the O.A.
5. The Tribunal after considering the contentions of the parties
found that the enquiry was conducted in a proper and fair manner
and the Government has considered the appeal as well as the review
petition submitted by the petitioner giving due regard to the
contentions raised therein by the petitioner. The Tribunal also held
that it is not expected to re-appreciate the evidence adduced in the
case as all the prescribed procedures are followed in accordance with
the law by the authorities concerned. Holding so, the O.A was
dismissed by the Tribunal. It is aggrieved by the said order of the
Kerala Administrative Tribunal dated 28.04.2021 in O.A. No. 1724 of
2017 that the present O.P.(KAT) is filed.
6. The petitioner contended that the authorities have not
considered the contentions raised by him in a proper manner while
issuing Annexure-A11 and that the non-examination of the lady will
go against the allegations raised in the memo of charges and the
same cannot be said to be proved. The petitioner further contended
that he went to the quarters of PW4 only to hand over the key of the
car and it is only for that purpose that the petitioner went to meet the
wife of PW4. He further has a contention that even though he was
punished, he was allowed to work in the same place and it goes
against the settled practice that once the delinquent is punished, he
will not be allowed to work in the same place and further contended
that he is not involved in any case either civil or criminal.
7. We have gone through Annexure-A2 memo of charges and
statement of the allegation. The allegations against the petitioner are
very serious, affecting the standards and morale of the Police
Academy, which is a training centre for Police Personnel including
woman recruitees. A perusal of Ext.A7 reveals that the disciplinary
authority has imposed punishment after meticulously considering
the enquiry report and after issuing Annexure A5 show cause notice
along with a copy of the enquiry report. Enquiry has been done in
accordance with law and several witnesses were examined to prove
the guilt of the delinquent. The petitioner was also given ample
opportunity to cross-examine the witnesses. Therefore, the
punishment imposed as per Ext.A7 is after complying with all the
procedures contemplated as per law. Annexure-A9 order in appeal,
as well as Annexure-A11 order passed in the review petition, were all
issued after considering the detailed objection submitted by the
petitioner.
8. The Tribunal has also found that sufficient opportunity has
been given to the petitioner to examine the documents relied upon
and to cross-examine the witnesses. Show cause notice was issued
and along with the same, a copy of the PR Minutes was also served
on the petitioner. The Tribunal also examined whether the prescribed
procedures have been followed while issuing the penalty on the
petitioner and found that all the procedures have been followed in
this case, and therefore, did not interfere with the order imposing a
penalty on the petitioner.
9. The Apex Court in Union of India v. Parma Nanda
[(1989) 2 SCC 177], while considering the scope of jurisdiction of
the Tribunal in interfering the disciplinary matters or punishment
have held as follows:
"27. We must unequivocally state that the jurisdiction
of the Tribunal to interfere with the disciplinary
matters or punishment cannot be equated with an
appellate jurisdiction. The Tribunal cannot interfere
with the findings of the Inquiry Officer or competent
authority where they are not arbitrary or utterly
perverse. It is appropriate to remember that the power
to impose penalty on a delinquent officer is conferred
on the competent authority either by an Act of
legislature or rules made under the proviso to Article
309 of the Constitution. If there has been an enquiry
consistent with the rules and in accordance with
principles of natural justice what punishment would
meet the ends of justice is a matter exclusively within
the jurisdiction of the competent authority. If the
penalty can lawfully be imposed and is imposed on the
proved misconduct, the Tribunal has no power to
substitute its own discretion for that of the authority.
The adequacy of penalty unless it is mala fide is
certainly not a matter for the Tribunal to concern itself
with. The Tribunal also cannot interfere with the
penalty if the conclusion of the Inquiry Officer or the
competent authority is based on evidence even if some
of it is found to be irrelevant or extraneous to the
matter."
The Apex Court in B.C.Chaturvedi v. Union of India and
Others [(1995) 6 SCC 749] while examining the scope of judicial
review in a challenge against the imposition of penalty by a
disciplinary authority, entered a finding as follows:
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made.
Power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that
the conclusion which the authority reaches is necessarily
correct in the eye of the court. When an inquiry is
conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether rules
of natural justice are complied with Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction,
power and authority to reach a finding of fact or
conclusion. But that finding must be based on some
evidence. Neither the technical rules of Evidence Act nor
of proof of fact or evidence as defined therein, apply to
disciplinary proceeding. When the authority accepts that
evidence and conclusion receives support therefrom, the
disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not act
as appellate authority to re-appreciate the evidence and to
arrive at its own independent findings on the evidence.
The Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer in a
manner inconsistent with the rules of natural justice or in
violation of statutory rules prescribing the mode of
inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the
conclusion or finding be such as no reasonable person
would have ever reached, the Court/Tribunal may
interfere with the conclusion or the finding, and mould the
relief so as to make it appropriate to the facts of each
case."
The Apex Court in Govt. of Andra Pradesh and Others v.
Mohammed Nasrullah Khan [(2006)2 SCC 373] while
examining the power of High Court in exercising judicial review held
that:
" By now it is a well-established principle of law that the High
Court exercising power of judicial review under Article 226 of
the constitution does not act as an appellate authority. Its
jurisdiction is circumscribed and confined to correct errors of
law or procedural error, if any, resulting in manifest
miscarriage of justice or violation of principles of natural
justice. Judicial review is not akin to adjudication on merit by
reappreciating the evidence as an appellate authority."
In Pravin Kumar v. Union of India and Others [(2020) 9
SCC 471] the Apex Court reiterated the scope of judicial review in
service matters and held as follows:
"25. The learned counsel for the appellant spent
considerable time taking us through the various evidence on
record with the intention of highlighting lacunae and
contradictions. We feel that such an exercise was in vain, as
the threshold of interference in the present proceedings is
quite high. The power of judicial review discharged by
constitutional courts under Article 226 or 32, or when sitting
in appeal under article 136, is distinct from the appellate
power exercised by a departmental appellate authority. It
would be gainsaid that judicial review is an evaluation of the
decision-making process, and not the merits of the decision
itself. Judicial review seeks to ensure fairness in treatment
and not fairness of conclusion. It ought to be used to correct
manifest errors of law or procedure, which might result in
significant injustice; or in case of bias or gross
unreasonableness of outcome.
.......................................
.........................................
28. It is thus well settled that the constitutional
courts while exercising their powers of judicial review would
not assume the role of an appellate authority. Their
jurisdiction is circumscribed by limits of correcting errors of
law, procedural errors leading to manifest injustice or
violation of principles of natural justice. Put differently,
judicial review is not analogous to venturing into the merits
of a case like an appellate authority."
In one of the recent decisions, in Deputy General Manager
(Appellate Authority) and Others v. Ajai Kumar
Srivastava [(2021) 2 SCC 612], the Apex Court after considering
the earlier decisions on the subject decided as under:
"25. When the disciplinary enquiry is conducted for the
alleged misconduct against the public servant, the court is to
examine and determine:
(i) whether the enquiry was held by the competent
authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some
evidence and authority has power and jurisdiction to reach
finding of fact of conclusion.
........................................
..........................................
28. The constitutional court while exercising its
jurisdiction of judicial review under Article 226 or Article 136
of the Constitution would not interfere with the findings of
fact arrived at in the departmental enquiry proceedings
except in a case of mala fides or perversity i.e where there is
no evidence to support a finding or where a finding is such
that no man acting reasonably and with objectivity could
have arrived at those findings and so long as there is some
evidence to support the conclusion arrived at by the
departmental authority, the same has to be sustained."
10. It is settled law that judicial review is not an appeal from a
decision but a review of the manner in which the decision is made.
While exercising the power of judicial review by constitutional
courts, the powers of interference are very limited like correcting of
errors of law or procedural errors leading to manifest injustice or
violation of principles of natural justice and the said exercise of
power is not like a procedure for adjudication of the case on merits
as an Appellate Authority. The Constitutional Court while exercising
judicial review cannot interfere with the finding of facts arrived at
the departmental enquiry proceedings except in a case of mala fides
or perversity. In the present case, even the petitioner does not have a
specific case as to whether any of the procedures have been violated.
Petitioner was granted sufficient opportunity to present the case
before the enquiry officer and the punishment was imposed only
after giving show-cause notice to him along with a copy of the PR
minutes. At every stage of the enquiry and in the appellate as well as
review stage, the petitioner was granted sufficient opportunity to
defend his case. Exhibit A7, A9, and A11 orders are speaking and
well-reasoned orders wherein all contentions raised by the petitioner
have been duly considered. The petitioner has been provided with
the opportunity to cross-examine the witnesses presented by the
Department and the principles of natural justice have been followed
in full. Even the punishment awarded to the petitioner in the facts
and circumstances of the present case is not unconscionable so as to
warrant interference by this Court. All the contentions raised by the
petitioner are based on appreciation/re-appreciation of evidence
which is impermissible while exercising powers of judicial review.
The petitioner is a member of a disciplined force and is expected to
maintain good conduct and discipline and by his present conduct,
has lowered the reputation of the police force amongst members of
the public.
In view of the above, we find no reason to interfere with the
order passed by the Tribunal in O.A. (TVM) No.1724 of 2017, and
therefore, OP(KAT) No.323 of 2021 is dismissed.
Sd/-
ALEXANDER THOMAS
JUDGE
sd/-
VIJU ABRAHAM
JUDGE
pm
APPENDIX OF OP(KAT) 323/2021
PETITIONER'S EXHIBITS:
TRUE COPY OF THE ORDER DATED 28TH APRIL
2021 IN OA (TVM), NO.1724 OF 2017 PASSED
Exhibit P1
BY THE KERALA ADMINISTRATIVE TRIBUNAL
THIRUVANANTHAPURAM.
TRUE COPY OF THE MEMORANDUM OF OA (TVM)
NO.1724 OF 2017 PASSED BY THE KERALA
Exhibit P2
ADMINISTRATIVE TRIBUNAL
THIRUVANANTHAPURAM.
A TRUE COPY OF THE ORDER OF SUSPENSION
Annexure A1
DATED 05.09.2014.
A TRUE COPY OF THE MEMO OF CHARGES AND
Annexure A2 STATEMENT OF ALLEGATION DATED
21.02.2015.
A TRUE COPY OF THE REPLY DATED
Annexure A3
24.08.2015 SUBMITTED BY THE APPLICANT.
A TRUE COPY OF THE P R.MINUTES SUBMITTED
Annexure A4
BY THE ENQUIRY OFFICER.
A TRUE COPY OF THE SHOW CAUSE NOTICE
Annexure A5
DATED 21.10.2015.
A TRUE COPY OF THE WRITTEN SUBMISSION
Annexure A6
MADE BY THE APPLICANT DATED 27.10.2015.
A TRUE COPY OF THE ORDER DATED
Annexure A7
12.11.2015.
Annexure A8 A TRUE COPY OF THE APPEAL MEMORANDUM
SUBMITTED BY THE APPLICANT DATED
10.12.2015.
A TRUE COPY OF THE ORDER ISSUED BY THE
Annexure A9
2ND RESPONDENT DATED 29.02.2016.
A TRUE COPY OF REVIEW FILED BY THE
Annexure A10
APPLICANT DATED 21.06.2016.
A TRUE COPY OF THE ORDER ISSUED BY THE
Annexure A11
1ST RESPONDENT DATED 29.05.2017.
A TRUE COPY OF THE REPLY STATEMENT FILED
BY RESPONDENTS BEFORE THE KERALA
Exhibit P3 ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM IN O A NO.1724 OF
2017 BEFORE THE KAT (TVM).
// true copy //
PA to Judge
