Kerala High Court
Rajkumar.G vs State Of Kerala on 8 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 23533 OF 2019
PETITIONER:
RAJKUMAR.G
AGED 42 YEARS
S/O GOPALAN NAIR,INSPECTOR AND STATION HOUSE
OFFICER,PARASSALA POLICE
STATION,PARASSALA,THIRUVANANTHAPURAM-695002,
RESIDING AT
SREE RAGAM, THIRUVELLOOR, KEEZHAVOOR.P.O,
POTHENCODE(VIA), THIRUVANANTHAPURAM-695584.
BY ADVS.
P.NANDAKUMAR
G.SIVASANKAR
S.ANEESH
AMRUTHA SANJEEV
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT,HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 STATE POLICE CHIEF,
OFFICE OF THE STATE POLICE CHIEF,
VAZHUTHACAUD,THIRUVANANTHAPURAM-695014.
3 THE VIGILANCE TRIBUNAL,
THIRUVANANTHAPURAM-695035.
W.P(C)No. 23533 of 2019
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BY
ADV.A.RAJESH - SPECIAL PUBLIC PROSECUTOR(VIGILANCE)
ADV.REKHA S. - SENIOR PUBLIC PROSECUTOR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C)No. 23533 of 2019
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J U D G M E N T
Dated this the 8th day of November, 2024
The petitioner, an Inspector attached to the Parassala
Police Station, at the time of filing the Writ Petition,
was the sole accused in V.C.No.2/2015 of the Vigilance and
Anti-Corruption Bureau (V.A.C.B.), Thiruvananthapuram. He
is aggrieved by Ext.P6 order, which accepted the refer
report preferred in the Vigilance Case above-referred, but
directed an enquiry by the Vigilance Tribunal,
Thiruvananthapuram.
2. Heard Sri.P.Nandakumar, learned Counsel for the
petitioner and Sri.A.Rajesh, learned Special Public
Prosecutor (Vigilance), on behalf of the respondents.
Perused the records.
3. Two grounds have been canvassed by the learned
Counsel to attack Ext.P6 order. The first is that, the
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Special Court, Thiruvananthapuram, while accepting the
refer report vide Ext.P2, has not permitted initiation of
any Vigilance enquiry as against the petitioner. The
second is that, the respondent authorities cannot switch
over from a disciplinary action proposed under the Kerala
Police Departmental Inquiries Punishment and Appeal Rules,
1958, ('1958 Rules', for short) to that of a Vigilance
enquiry in terms of the Kerala Civil Services (Vigilance
Tribunal) Rules, 1960, ('1960 Rules', for short), as
directed in Ext.P6 order.
4. As regards the first ground, learned Counsel would
invite the attention of this Court to Ext.P2 Order of the
Special Court, which merely accepted the Final Report and
dropped further proceedings. No reservation, whatsoever,
was obtained by the respondent authorities under Ext.P2
for initiating a Vigilance enquiry before the Tribunal,
wherefore, Ext.P6 is bad for that reason.
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5. This Court will deal with the said contention first.
Ext.P1 is the refer report preferred by the Investigating
Officer in V.C.No.2/2015 of the V.A.C.B.,
Thiruvananthapuram. In the last page of Ext.P1, the
Investigating Officer arrived at a conclusion that no
sufficient evidence is available to charge-sheet the
accused. Paragraphs 2 and 3 in page no.6 of Ext.P1 are
relevant and extracted here-below:
"The investigation of this case is completed and
the Factual Report was forwarded to Additional Legal
Adviser. After the verification of the Factual Report
the Additional Legal Advisor recommended a Vigilance
Tribunal Enquiry for major punishment against the
accused and the Director, Vigilance & Anti-Corruption
Bureau has accepted the recommendation and accorded
sanction to submit a Refer Report before the Hon'ble
Court.
Hence it is humbly submitted that the Hon'ble
Court may be pleased to accept this Final Report and
drop further action in this case to proceed with a
Vigilance Tribunal Enquiry against the accused."
6. It is acting upon Ext.P1 that, Ext.P2 order was
passed by the Special Court, accepting the Final Report
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and dropping further proceedings. It may have to be
observed in this context that, acceptance of the Final
Report implies acceptance of the recommendation to
initiate Vigilance Enquiry, as well. The observations in
Ext.P2 that further proceedings is dropped will have to be
conceived in the sense that further proceedings in terms
of the Prevention of Corruption Act, the cognizance of
which is to be taken by the Special Court, is dropped. It
cannot extend to dropping any other incidental
proceedings, which could be taken in accordance with law
in respect of the same cause of action.
7. Looking from another angle, this Court is of the
opinion that, the sanction of a Special Court is not
required to initiate a Vigilance Enquiry. As already
indicated, the scope of jurisdiction of the Special Court
is in respect of offences under the Prevention of
Corruption Act. The first contention will therefore stand
repelled.
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8. Coming to the second, upon which petitioner's Counsel
would essentially rely, learned Special Public Prosecutor
would invite the attention of this Court to the 1960
Rules, especially to Rules 4, 5 and 8 therein. The
Prosecutor would submit that it is well within the
competence of the respondent officials to initiate action
under the 1960 Rules, even in respect of a member of the
Kerala Police Service, governed by the 1958 Rules. In this
regard, a Bench decision of this Court in Premachandran v.
Superintendent of Police [2004 KHC 235] was relied upon,
to point out that though an enquiry against a police
official shall normally be held under the 1958 Rules, an
enquiry under the 1960 Rules, where charges include
allegations of corruption, cannot cause any prejudice to
the delinquent. Learned Public Prosecutor also relied upon
another Bench decision of this Court in State of Kerala
vs. Suresh Prabhu P.[2022 KHC 57], as regards the
procedure contemplated under Rules 4, 5 and 8 of the 1960
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Rules, to contend that the same have been strictly adhered
to in petitioner's case.
9. In answer to the above contentions, learned counsel
for the petitioner would submit that, the petitioner has
no quarrel as regards the respondent's power to initiate
appropriate action under the 1960 Rules. The contention,
instead, is that, having initiated proceedings under the
1958 Rules, the respondents are not entitled in law to
switch over, so as to initiate the proceedings under the
1960 Rules. Learned counsel would specifically invite the
attention of this Court to paragraph no. 4 of Ext.P4,
wherein, petitioner was required to show cause as to why
disciplinary action as contemplated in the 1958 Rules
should not be taken against the petitioner. Learned
counsel also relied upon an observation in Ext.P3 order of
the Kerala Administrative Tribunal, wherein the submission
of the Government Pleader is recorded in paragraph no.11
to the effect that no Vigilance Tribunal Enquiry has been
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initiated against the petitioner and that what was
initiated is only a disciplinary action by issuing a memo
of charges. Learned counsel would submit that it is
abundantly clear from the above that the respondents
contemplated only an action under the 1958 Rules, and they
cannot now switch over to the proceedings under the 1960
Rules, as directed in Ext.P6. In this regard, learned
counsel relied upon a judgment of a learned Single Judge
in Vaijayanthi v. State of Kerala [2003 (3) KLT 1055].
10. Having heard the learned counsel appearing for the
respective parties, this Court finds little merit in the
second contention as well. It is true that, in Ext.P4 memo
of charges, what is contemplated is an action under the
1958 Rules. However, it is worthy to note that Ext.P4 has
been issued at the instance of the Vigilance Department
and the allegations contained therein, at paragraph no.1,
are allegations pertaining to corruption. The issuance of
such a memo of charges is contemplated by the 1960 Rules
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as well, specifically in terms of Rule 5(c). As per Rule
5(c), the Government has to frame definite charge against
the delinquent officer, once it is satisfied that there
exists a prima facie case against such officer. Rule 5(c)
also enjoins to call for a written statement of defense. A
perusal of Ext.P4 would show that the requirements of Rule
5(c) are satisfied therein, but for reference to the 1958
Rules in paragraph no.4. Even in respect of that
reference, the learned Special Public prosecutor would
offer an answer, by resorting to Rule 8(1), which is
extracted here-below:
"8.[(1) Notwithstanding anything contained in rules 15
and 16 of the Kerala Civil Services (Classification,
Control and Appeal) Rules, 1960 and in rule 17 of the
Kerala Police Departmental Inquiries, Punishment and
Appeal Rules, 1958, the procedure prescribed in sub-
rules (2) to (10) and (14) shall be adopted by the
Tribunal in conducting enquiries.]"
11. Although, the above provision pertains to the
provision to be followed by the Tribunal in conducting
enquiries, it suggests that proceedings under the 1960
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Rules can be taken, dehors the existence of the 1958
Rules. The judgment in Premachandran(Supra) would also
vouch the said legal position.
12. That being so, it cannot be held that merely because
there is a reference to the 1958 Rules, the right to
proceed under the 1960 Rules stands forfeited. A wrong
reference to the 1958 Rules in Ext.P4, which answers the
requirements of the 1960 Rules in all other respects,
cannot foreclose the right to proceed under the 1960
Rules.
13. Now, coming to switching over, for which purpose
reliance is placed on Vaijayanthi(supra), this Court
notice that the said case was one where proceedings were
initiated and proceeded half way for the imposition of a
major penalty, which later culminated in the infliction of
a minor penalty, without adhering to the procedure
prescribed for inflicting a minor penalty. I am of the
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opinion that, the said decision will not apply to the
present facts. The primary aspect to be noted is that,
separate procedures are prescribed under the Kerala Civil
Services (Classification, Control and Appeal) Rules,
1960, for imposition of major penalty and minor penalty.
When two different and distinct procedure is laid down,
switching over from one to another has been found tabooed
by the learned Single Judge in Vaijayanthi(supra). The
fact situation is completely different in the instant
case. First of all, all what is seen issued is Ext.P4 memo
of charges, which caters to all the requirements of Rule
5(c) under the 1960 rules, but for the reference to the
1958 Rules in paragraph no.4. It cannot therefore be held
that proceeding have been initiated under the 1958 Rules
and proceeded half-way. Secondly, the vice canvassed in
switching over as between the remedies under the two
different Rules has to be dealt with and appreciated
separately, and not in the light of the dictum laid down
in Vaijayanthi(supra), which exercise is not warranted at
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the instant facts, inasmuch as, this Court had found on
facts that there involves no switching over, in fact. I
may hasten to add that, all along, the petitioner was made
to believe and understand that what is contemplated
against him was a Vigilance enquiry before the Tribunal.
This was the recommendation made in Ext.P2 Final Report
and reiterated in Ext.P6 impugned order. In such
circumstances, a mere reference to the 1958 Rules in
Ext.P4 memo of charges cannot be fatal, as already
indicated above.
In the result this Writ Petition fails and the same will
stand dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
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APPENDIX OF WP(C) 23533/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF REFERRED CHARGE SHEET
DATED 27.04.2016 IN VC 2/2015/TVM
EXHIBIT P2 TRUE COPY OF ORDER IN VC 2/2015/TVM OF
THE COURT OF ENQUIRY COMMISSIONER AND
SPECIAL JUDGE,THIRUVANANTHAPURAM
EXHIBIT P3 TRUE COPY OF ORDER DATED 31.05.2018 IN
OA NO.583 OF 2018
EXHIBIT P4 TRUE COPY OF THE MEMO OF CHARGES AND
STATEMENT OF ALLEGATIONS DATED
22.07.2017 ISSUED TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF WRITTEN STATEMENT OF
DEFENCE DATED 23.11.2017 SUBMITTED BY
THE PETITIONER
EXHIBIT P6 TRUE COPY OF GO(RT)NO.197/2018/VIG
DATED 15.11.2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P7 TRUE COPY OF GO(MS)NO.12/2018/HOME
DATED 25.01.2018 ISSUED BY THE 1ST
RESPONDENT.
RESPONDENTS EXHIBITS
ANNEXURE-R1(a) TRUE COPY OF THE G.P.(P)NO.65/92 DATED
12.05.1992
