Kerala High Court
A.Satis vs State Of Kerala on 24 October, 2024
Author: Murali Purushothaman
Bench: A.Muhamed Mustaque, Murali Purushothaman
OP(KAT) NO. 315 OF 2014
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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 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA,
1946
OP(KAT) NO. 315 OF 2014
AGAINST THE ORDER DATED 10.06.2014 IN TA NO.2583 OF
2012 WP(C) NO.2848/2008 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
A.SATIS
PRESENTALY RESIDING AT SIVADAM"
P.O. EAST HILL, CALICUT,
KOZHIKODE DISTRICT.
(PRESENTLY WORKING AS INSPECTOR OF POLICE
(AR) KOZHIKODE.
BY ADVS.
SRI.C.VALSALAN
SRI.GHOSH YOHANNAN
SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPLE SECRETARY TO
GOVERNMENT, HOME DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
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2 INSPECTOR GENERAL OF POLICE
NORTH ZONE, KOZHIKODE, CALICUT,
PRESENTLY ADDITIONAL DIRECTOR GENERAL OF
POLICE, NORTH ZONE CALICUT.
3 DEPUTY INSPECTOR GENERAL OF POLICE
KANNUR RANGE, KANNUR PRESENTLY INSPECTOR
GENERAL OF POLICE, KANNUR.
4 THE KERALA PUBLIC SERVICE COMMISSION
PATTOM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY.
5 THE CHIEF IMMIGRATION OFFICER
BUREAU OF IMMIGRATION (MINISTRY OF HOME
AFFAIRS) GOVERNMENT OF INDIA, NEW DELHI.
BY ADVS.
SR.GP SRI.A.J.VARGHESE
SRI.P.C.SASIDHARAN, SC FOR PSC
SRI.T.C.KRISHNAN, DSGI IN CHARGE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING
BEEN FINALLY HEARD ON 09.10.2024, THE COURT ON
24.10.2024 DELIVERED THE FOLLOWING:
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'CR'
JUDGMENT
Murali Purushothaman, J.
The Original Petition (KAT) is filed by the
applicant in T.A. No.2583 of 2012 (W.P.(C).No.2848 of
2008) challenging the order passed therein by the
Kerala Administrative Tribunal.
2. The petitioner, while working as an
Inspector of Police (Armed Reserve) in the Kerala
Police Service, was deputed as an Assistant
Immigration Officer in the Bureau of Immigration (BOI)
under the Ministry of Home Affairs at Meenampakkam
Airport, Chennai, from 01.06.2000 onwards. On
15.04.2001, he cleared three passengers going to
Muscat for boarding the Gulf Airlines Flight No. GF 069.
He also cleared two passengers for British Airways
Flight No. BA 036 going to London on the same day.
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Both flights were scheduled to take off almost
simultaneously. Out of the 117 passengers, who
obtained boarding passes from the Gulf Airlines Flight,
only 114 passengers boarded and three were found
missing. However, the said three passengers boarded
the British Airlines Flight No. BA 036 and proceeded to
London and they sought political asylum from the
British Government as Afghans.
3. Alleging that the petitioner was careless in
doing the immigration clearance of the aforesaid
passengers, he was placed under suspension by the
Chief Immigration Officer vide order dated 18.05.2001.
Since the petitioner was working on deputation at BOI,
the Chief Immigration Officer initiated departmental
proceedings against the petitioner under Rule 14 of the
Central Civil Services (Classification, Control & Appeal)
Rules, 1965 (for short 'CCS (CCA) Rules'). Rule 14 of
CCS (CCA) Rules deals with procedure for imposing
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major penalties. After the enquiry, the Senior
Immigration Officer, the Enquiry Officer, submitted Ext.
P10 report on 26.11.2001 finding the petitioner guilty
of the charges.
4. On repatriation, the petitioner was relieved
of his duties in BOI, Chennai on 30.04.2002.
Accordingly, the disciplinary enquiry files were
transmitted to the Deputy Inspector General of Police
(DIG), Kannur, the disciplinary authority of the lending
authority through the Director General of Police,
Kerala. The DIG concurred with the findings of the
Enquiry Officer and served Ext. P1 show cause notice
dated 30.12.2002 on the petitioner proposing to
impose a punishment of barring two increments with
cumulative effect. The petitioner submitted Ext. P2
reply against the proposed punishment. The
disciplinary authority overruled the objection and
imposed punishment of barring of two increments with
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cumulative effect, as per Ext. P3 order. The
punishment imposed is a minor penalty under Rule 15
(1) (h) of the Kerala Police Departmental Inquiries,
Punishment and Appeal Rules, 1958 ('Rules', for short).
5. The petitioner preferred an appeal under
Rule 23 of the Rules against Ext. P3 order before the
Inspector General of Police, Northern Zone, Kozhikode.
The appellate authority dismissed the appeal by Ext. P4
order.
6. Against Ext. P4 order, the petitioner
preferred Ext. P5 revision petition before the
Government under Rule 36 of the Rules. The same was
rejected by the Government by Ext. P6 order. In Ext.
P6, it is stated that the Government took a tentative
decision to modify the punishment of withholding of
increments for two years with cumulative effect
awarded to the petitioner to that of withholding of
increments for two years without cumulative effect and
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sought for the advice of the Kerala Public Service
Commission. However, the Commission advised to
reject the revision petition and to retain the
punishment already awarded. The matter was again
taken up with the Commission. The Commission
maintained its earlier stand and the Government
accepted the advice of the Commission and retained
the punishment already awarded and rejected the
revision petition. Though the petitioner preferred Ext.
P7 petition before the Government, which is a non
statutory representation, the same was rejected by
Ext. P9 communication. The petitioner thus preferred
W.P.(C) No.2848 of 2008 before this Court challenging
Exts. P3, P4, P6 and P9.
7. On constitution of the Kerala Administrative
Tribunal, the writ petition was transferred to the
Tribunal. Before the Tribunal, the petitioner raised the
following grounds.
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(i) In the enquiry the
presenting officer was a person
interested in shifting the blame to the
applicant as the said officer was actually
responsible for the irregularities in the
checking of the boarding passes and
other happenings. So the enquiry is
vitiated.
(ii) Since the borrowing authority
completed the enquiry, it should have
finalised the disciplinary proceedings also
instead of leaving it to the lending
authority to finalise the proceedings.
(iii) The exchange of boarding
passes took place after the emigration
clearance was over and therefore, the
applicant was in no way responsible for
the same.
(iv) The appellate order is a
bald and cryptic order and therefore, the
same is liable to be set aside.
(v) Ext. P6 order in review also
is illegal for accepting the advice of the
Public Service Commission blindly. The
Government should have applied its mind
to the advice tendered by the Public
Service Commission and taken an
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independent decision without readily
swallowing what was furnished by the
Public Service Commission."
8. As regards the contention of the petitioner
that the presenting officer was biased, the Tribunal
observed that there is no rule that the presenting
officer should be an unbiased person and that the
petitioner has no case that the enquiry officer was
biased. Further, the Tribunal observed that the
petitioner did not raise the said contention at the time
of enquriy. The petitioner's contention that the
disciplinary proceedings should have been finalized by
the BOI, the borrowing authority, was rejected by the
Tribunal as being devoid of merit. The Tribunal held
that, as per Rule 18A of the Rules, the lending
authority can also take disciplinary action for the
misconduct committed by an officer when he was
working with the borrowing authority. With regard to
the contention of the petitioner that the appellate order
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is bald and cryptic, the Tribunal observed that the said
defect is cured by the Government by passing a
detailed speaking order in the revision petition.
Regarding the contention of the petitioner that the
Government blindly accepted the advice of the Public
Service Commission while rejecting the revision
petition, the Tribunal observed that the decision of the
Government to accept the advice of the Commission
cannot be said to be irrational or perverse. The
contention of the petitioner on merits of the case put
forward against him was also rejected by the Tribunal
on the ground that there is no reason to interfere with
the findings of fact in the enquiry. The Tribunal
observed that going by the proved misconduct, the
punishment imposed on the petitioner can never be
described as grossly disproportionate to the gravity of
the offence. Accordingly, the Tribunal dismissed the
Transfer Application.
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9. The order of the Tribunal is impugned in the
Original Petition contending that the Tribunal rejected
the case put forward by the petitioner without
considering the facts and circumstances in the proper
perspective. It is also contended that another
immigration officer by name Chandra Shekharan who
also faced the same charge was absolved from the
charges after the enquiry.
10. Heard the learned counsel for the
petitioner, the learned Senior Government Pleader, the
learned Standing Counsel for the Public Service
Commission and the learned Central Government
Counsel.
11. According to the petitioner, as per Rule
18A of the Rules, the borrowing authority (BOI) alone
has the power of disciplinary authority to award
punishment to those on deputation. Therefore, it is
contended that Ext. P3 order of the disciplinary
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authority, Ext. P4 order of the appellate authority and
Ext. P6 order of the Government passed in exercise of
powers under the Rules are not sustainable. Rule 18A
of the Rules reads as follows:
"18A. Provisions regarding officers
lent to other Government etc.-
(1) Where the services of the member of
the service are lent to another
Government, Central or State, or an
authority subordinate thereto or to a local
or other authority (hereinafter referred to
as "the borrowing authority") the
borrowing authority shall have the powers
of the Appointing authority for the
purpose of placing him under suspension
and of the Disciplinary Authority for the
purpose of taking a disciplinary
proceeding against him:
Provided that the borrowing authority
shall forthwith inform the authority which
lent his services (hereinafter in this rule
referred to as "the lending authority") of
the circumstances leading to the order of
his suspension or the commencement of
the disciplinary proceeding, as the case
may be.
(2) In the light of the findings in the
disciplinary proceedings taken against the
member of service:
(i) if the borrowing authority is of
the opinion that any of the
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penalties specified in items (a) to
(h) of Rule 15(1) shall be imposed
on him, it may, in consultation
with the lending authority, pass
such orders on the case as it
deems necessary:
Provided that in the event of a difference
of opinion between the borrowing
authority and the lending authority, the
services of the member of the service
shall be placed at the disposal of the
lending authority;
(ii) if the borrowing authority is
of the opinion that any of the
penalties specified in items (i) to
(m) of Rule 15(1) shall be
imposed on him, it shall replace
his service at the disposal of the
lending authority and transmit to
it the proceedings of the inquiry
and thereupon the lending
authority may, if it is the
Disciplinary Authority, pass such
orders thereon as it deems
necessary or if it is not the
Disciplinary Authority, submit the
case to the Disciplinary Authority
which shall pass such orders on
the case as it deems necessary
according to the procedure
prescribed under these rules, or
after holding such further enquiry
as it may deem necessary.
An appeal shall lie to the Government of
Kerala from the orders passed by the
borrowing authority by virtue of the powers
vested in them under this rule."
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'Member of the service' has been defined under Rule 3
(c) of the Rules to mean a member of the Kerala Police
Service or the Kerala Police Subordinate Service, as
the case may be. The petitioner, an Inspector of Police
(Armed Reserve) is a member of the Kerala Police
Service. As per Rule 18A of the Rules, the borrowing
authority shall have the powers of the Disciplinary
Authority for the purpose of taking disciplinary
proceedings against a member of the Kerala Police
Service lent to that authority, namely the BOI. The
disciplinary proceeding was initiated by the borrowing
authority under the CCS (CCA) Rules while the
petitioner was on deputation with the BOI. Rule 2 (g)
of the CCS (CCA) Rules defines "disciplinary authority"
to mean the authority competent under the said Rules
to impose on a Government servant any of the
penalties specified in Rule 11. Rule 2(h) of the CCS
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(CCA) Rules defines a "Government servant" to mean a
person who (i) is a member of a Service or holds a civil
post under the Union, and includes any such person on
foreign service or whose services are temporarily
placed at the disposal of a State Government, or a
local or other authority; (ii) is a member of a Service
or holds a civil post under a State Government and
whose services are temporarily placed at the disposal
of the Central Government; (iii) is in the service of a
local or other authority and whose services are
temporarily placed at the disposal of the Central
Government. After the completion of the enquiry, an
enquiry report was submitted on 26.11.2001 finding
the petitioner guilty of the charges. On repatriation,
the petitioner was relieved of his duty in BOI on
30.04.2002. Accordingly, the files relating to the
enquiry was transmitted to the lending authority by the
BOI and further disciplinary proceedings culminating in
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Ext. P3 order was taken by the Disciplinary Authority of
the lending authority, under the Rules.
12. The borrowing authority as well as the
lending authority is competent to take disciplinary
proceedings against the officer lent. However, when
the disciplinary proceedings are initiated by the
borrowing authority while the officer is on deputation
with them, the borrowing authority shall forthwith
inform the authority which lent his services of the
circumstances leading to the commencement of
disciplinary proceedings. In case the borrowing
authority on the basis of the findings in the disciplinary
proceedings is of the opinion that any of the
punishments specified in items (a) to (h) of Rule 15 of
the Rules shall be imposed on the delinquent, the
borrowing authority may in consultation with the
lending authority, pass such orders on the case as it
deems necessary. It further provides that in the event
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of difference of opinion between the borrowing
authority and the lending authority, the services of the
member of the service shall be placed at the disposal
of the lending authority. If the borrowing authority is of
the opinion that any of the major penalties specified in
items (i) to (m) of Rule 15 shall be imposed on the
delinquent, it shall replace his service at the disposal of
the lending authority and transmit to it the proceedings
of the enquiry and thereupon the lending authority
may, if it is the disciplinary authority, pass such orders
thereon as it deems necessary. Similar provisions are
there under the CCS (CC&A) Rules and Rule 21 thereof
reads as follows:
"21. PROVISIONS REGARDING OFFICERS
BORROWED FROM STATE GOVERNMENTS,
ETC.:
(1) Where an order of suspension is made
or a disciplinary proceeding is conducted
against a Government servant whose
services have been borrowed by one
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department from another department or
from a State Government or an authority
subordinate thereto or a local or other
authority, the authority lending his services
(hereinafter in this rule referred to as "the
lending authority") shall forthwith be
informed of the circumstances leading to
the order of the suspension of the
Government servant or of the
commencement of the disciplinary
proceeding, as the case may be.
(2) In the light of the findings in the
disciplinary proceeding conducted against
the Government servant, if the disciplinary
authority is of the opinion that any of the
penalties specified in clauses (i) to (iv) of
rule 11 should be imposed on him, it may,
subject to the provisions of sub-rule (3) of
rule 15 and except in regard to a
Government servant serving in the
Intelligence Bureau up to the rank of
Assistant Central Intelligence Officer, after
consultation with the lending authority,
pass such orders on the case as it may
deem necessary-
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(i) provided that in the event of a
difference of opinion between the
borrowing authority and the lending
authority, the services of the
Government servant shall be replaced
at the disposal of the lending
authority;
(ii) if the disciplinary authority is of
the opinion that any of the penalties
specified in clauses (v) to (ix) of Rule
11 should be imposed on the
Government servant, it shall replace
the services of such Government
servant at the disposal of the lending
authority and transmit to it the
proceedings of the inquiry for such
action, as it may deem necessary."
13. Though the borrowing authority as well as
the lending authority is competent to take disciplinary
proceedings against the officer lent, the borrowing
authority can exercise disciplinary jurisdiction and
impose punishment on the officer lent to it only till
such time the officer is at the disposal of the borrowing
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authority. Going by Rule 2(g) read with Rule 2(h) of
the CCS (CCA) Rules, the disciplinary authority under
the CCS (CCA) Rules can impose penalties specified in
Rule 11 of the said Rules on a "Government Servant"
whose services are temporarily placed at the disposal
of the Central Government. Once he is repatriated to
his parent service, the borrowing authority ceases to
exercise control over the officer. It is trite that the
word 'control' under the 'Classification, Control and
Appeal Rules' indicates 'discipline' and the power of the
authority to initiate disciplinary action. The Hon'ble
Supreme Court in State of U.P and Others v Ram
Naresh Lal [1970 KHC 575: AIR 1970 SC 1263:
(1970) SCC 173] has held that the word "control" is a
wide word and includes disciplinary jurisdiction. The
borrowing authority can exercise disciplinary
jurisdiction over the officer lent to it only till such time
the officer is at the disposal of the borrowing authority.
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14. It will not be in the interest of justice to
drop the disciplinary proceedings on repatriation of the
officer to the parent organisation. If the enquiry is not
completed while the member of service was at the
disposal of the borrowing authority, the borrowing
authority can follow the procedure akin to Rule 21 (2)
(ii) of the CCS (CCA) Rules or Rule 18A(ii) of the Rules
and transmit to the lending authority the proceedings
of the enquiry, and thereupon the lending authority
may submit the case to the Disciplinary Authority
which shall pass such orders on the case as it deems
necessary according to the procedure prescribed under
the Rules, or after holding such further enquiry as it
may deem necessary.
15. The lending authority in this case has, in
fact, followed the said procedure and has taken the
disciplinary proceedings to a logical conclusion. There
is no merit in the contention of the petitioner that the
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lending authority cannot continue the disciplinary
action initiated by the borrowing authority and impose
punishment on the petitioner.
16. As regards the contention of the petitioner
that another officer who faced disciplinary proceedings
along with him was exonerated, the same cannot be a
ground to interfere with the disciplinary proceedings
and punishment imposed on the petitioner.
17. The Tribunal has rightly found that the
findings on facts in the enquiry cannot be re-
appreciated by the Tribunal in exercise of powers of
judicial review. We also find that the punishment
imposed on the petitioner is proportionate to the
gravity of the offence proved in the enquiry. We find
no jurisdictional error or legal infirmity in the order of
the Tribunal warranting interference in exercise of the
supervisory jurisdiction of this Court under Article 227
of the Constitution of India.
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Accordingly, the Original Petition (KAT) is
dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE-1: TRUE COPY OF THE MEMORANDUM OF WRIT
(T.A.NO.2583/2012 OF KAT).
EXHIBIT P1 IN TRUE COPY OF THE STATEMENT OF CHARGE AND
TA SHOW CAUSE NOTICE DATED 30-12-2002.
EXHIBIT P2 IN TRUE COPY OF THE EXPLANATION DATED 9-2-
TA 2003 SUBMITTED BY THE PETITIONER.
EXHIBIT P3 IN TRUE COPY OF THE ORDER OF 3RD RESPONDENT
TA DATED 18-3-2003.
EXHIBIT P4 IN TRUE COPY OF THE ORDER DATED 31-7-2003
TA OF 2ND RESPONDENT.
EXHIBIT P5 IN TRUE COPY OF THE REVISION PETITION DATED
TA 24-2-2004 FILED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P6 IN TRUE COPY OF THE ORDER DATED 30-8-2006
TA BY THE 1ST RESPONDENT.
EXHIBIT P7 IN TRUE COPY OF THE PETITION BEFORE HOME
TA MINISTER.
EXHIBIT P8 IN TRUE COPY OF THE MEMORANDUM DATED 7-12-
TA 1998 OF I.B. MINISTRY OF HOME AFFAIRS
GOVERNMENT OF INDIA.
EXHIBIT P9 IN TRUE COPY OF THE LETTER DATED 9-8-2008
TA FROM THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT HOME DEPARTMENT.
EXHIBIT P10 TRUE COPY OF THE ENQUIRY REPORT DATED
IN TA 16-11-2001 FILED ALONG WITH I.A. NO.
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8864/2011.
ANNEXURE-II: COUNTER AFFIDAVIT FLED BY THE 1ST
RESPONDENT.
ANNEXURE-III: COUNTER AFFIDAVIT FILED BY THE 5TH
RESPONDENT.
ANNEXURE-IV: TRUE COPY OF THE ORDER DATED 10/06/2014
IN T.A.NO.2583 OF 2012 ( IN
WPC.NO.2848/2008) ON THE FILE OF THE
KERALA ADMINISTRATIVE TRIBUNAL.
