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 :
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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
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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
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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
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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
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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.
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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
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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.]".
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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
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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-
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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
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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
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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
