Kerala High Court
Aneesh A, S/O.K.Ambujakshan vs State Of Kerala on 30 September, 2024
Author: Murali Purushothaman
Bench: A.Muhamed Mustaque, Murali Purushothaman
OP(KAT) NO. 227 OF 2024 : 1 :
2024:KER:72751
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
OP(KAT) NO. 227 OF 2024
AGAINST THE ORDER DATED 01.11.2021 IN OA NO.92 OF 2019 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
ANEESH A, S/O.K.AMBUJAKSHAN,
AGED 47 YEARS EX-POLICE CONSTABLE NO:Q-5804,
DISTRICT HEADQUARTER/DISTRICT ARMED RESERVE,
KOLLAM CITY, KOLLAM -691001,
RESIDING AT KUNNUMPURATHU, SRAYIKADU,
AZHEEKKAL P.O., KOLLAM, PIN - 690568
BY ADVS.
B.MOHANLAL
P.S.PREETHA
ASWIN V. NAIR
ABIJITH M.
PRAVEENA T.
KARTHIK J SEKHAR
JAYAPRABHA ARJUN
BLESSY MARY SEBASTIAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
HOME & VIGILANCE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE INSPECTOR GENERAL OF POLICE,
OP(KAT) NO. 227 OF 2024 : 2 :
2024:KER:72751
THIRUVANANTHAPURAM RANGE,
OFFICE OF THE INSPECTOR GENERAL OF POLICE,
THIRUVANANTHAPURAM RANGE, NANDAVANAM,
THIRUVANANTHAPURAM, PIN - 695033
3 THE DISTRICT POLICE CHIEF & COMMISSIONER OF
POLICE,
KOLLAM CITY, OFFICE OF THE DISTRICT POLICE CHIEF
& COMMISSIONER OF POLICE, KOLLAM CITY, KOLLAM-
691001
4 THE ASSISTANT COMMANDANT-II,
DISTRICT HEAD QUARTER/DISTRICT ARMED RESERVE.
KOLLAM CITY, KOLLAM, PIN - 691001
5 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY.
OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM, PIN - 695004
R 1 TO 4 BY SR.GP SRI.A.J.VARGHESE
R5 BY SRI.P.C.SASIDHARAN, SC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 30.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT) NO. 227 OF 2024 : 3 :
2024:KER:72751
JUDGMENT
Murali Purushothaman, J.
This Original Petition (KAT) is filed under Article
227 of the Constitution of India to set aside Ext.P1 order
dated 01.11.2021 in O.A.No.92 of 2019 of the Kerala
Administrative Tribunal, Thiruvananthapuram and to direct
the respondents to reinstate the petitioner in service as
Police Constable in the District Head Quarter/District
Armed Reserve, Kollam and to disburse salary and other
emoluments.
2. The petitioner entered service as a Police
Constable in the District Armed Reserve, Kollam on
27.03.1996 under the compassionate employment
scheme. The petitioner states that, due to severe back
pain, he was constrained to go on half pay leave from
06.08.2006 to 01.10.2006. He states that since he was
under extended treatment, he could not report for duty
2024:KER:72751
after the leave period. Accordingly, by Annexure-A3 order
dated 15.10.2007, he was declared as a 'deserter'.
Thereafter, Annexure-A4 memo of charges and statement
of allegations dated 07.05.2008 was issued to him and an
oral enquiry was conducted into the charges. In the oral
enquiry, the charges were found to be true and on the
basis of Annexure-A5 punishment roll submitted by the 4 th
respondent, the enquiry officer, Annexure-A6 show cause
notice was issued to the petitioner by the 3 rd respondent to
show cause why the punishment of dismissal from service
shall not be imposed on him. The petitioner submitted
Annexure-A7 reply and the 3rd respondent, the District
Police Chief, by Annexure-A8 order confirmed the
provisional decision to dismiss him from service. The
petitioner preferred Annexure-A9 appeal before the 2 nd
respondent, the Inspector General of Police,
Thiruvananthapuram Range and the same was rejected by
Annexure-A10 order. Thereupon, he filed Annexure-A11
review petition before the Government, the 1st respondent
2024:KER:72751
under Rule 36A of the Kerala Police Departmental
Inquiries, Punishment and Appeal Rules, 1958 (for short,
'the Rules'). It is stated that the Government took a view
that a lenient approach had to be taken in the case of the
petitioner considering his young age and also the fact that
dismissal from service would render him ineligible for
public employment. Accordingly, the Government took a
tentative decision to re-induct the petitioner in service as
junior most in the category of Police Constable and decided
to consult the Public Service Commission (PSC) on the
tentative decision. However, the PSC did not agree to the
decision of the Government and advised to retain the
original punishment of dismissal from service. It is stated
that Government again addressed the PSC on its proposal,
but the PSC did not concede to the proposal and the
Government issued Annexure-12 order rejecting the
review petition filed by the petitioner. Aggrieved by
Annexure-A12 order, the petitioner preferred O.A.(EKM)
No.94 of 2013 before the Tribunal. The Tribunal, by
2024:KER:72751
Annexure-A13 order dated 07.03.2017, held that it was
not necessary for the Government to have consulted the
PSC while considering an application for review of an order
of penalty since consultation under Clause 6 of the Kerala
Public Service Commission (Consultations) Regulation,
1957 is required only when the Government imposes the
penalty as the original authority. Since the original order
was issued by the District Police Chief and the appellate
order was issued by the Inspector General of Police, the
Government while passing Annexure-12 order was not
exercising original jurisdiction. Accordingly, the Tribunal
set aside Annexure-A12 order and directed the
Government to reconsider Annexure-A11 review petition
independently de hors the advice given by the PSC.
Pursuant to Annexure-A13 order, the Government afforded
a personal hearing to the petitioner and passed Annexure-
A14 order rejecting the review petition. The Government
found that the misconduct on the part of the petitioner was
very serious and he could not raise any genuine grounds
2024:KER:72751
for reinstatement in service. Aggrieved by Annexure-A14
order, the petitioner preferred O.A No.92 of 2019 before
the Tribunal seeking to quash Annexure-A3 order declaring
him as a 'deserter', Annexure-A4 memo of charges,
Annexure-A5 punishment roll, Annexure-A6 show cause
notice, Annexure-A8 order of dismissal, Annexure-A10
order rejecting his appeal and Annexures-A12 and A14
orders rejecting the review petition. The Tribunal, vide
Ext.P1 order dated 01.11.2021, found that Annexure-A12
order has already been set aside by Annexure-A13 and as
regards the challenge against the enquiry and other
proceedings, the Tribunal held that the petitioner cannot
raise the said contentions as he is bound by the specific
findings in Annexure-A13 order of the Tribunal which has
become final wherein the Tribunal has observed that the
petitioner has only chosen to challenge the order of
punishment, the order in appeal and the order in review
and not the enquiry proceedings and the enquiry report.
The Tribunal observed that in Annexure-A13, the Tribunal
2024:KER:72751
only interfered with the order passed in the review petition
and directed the Government to take an independent
decision on the review petition de hors the opinion of the
PSC. The Tribunal found that no fault can be attributed to
the decision of the Government in Annexure-A14 not to
interfere with the order of penalty imposed on the
petitioner whose conduct was found to be irresponsible to
be retained in a disciplined force.
3. Ext.P1 order of the Tribunal is impugned in this
Original Petition on the ground that the punishment of
dismissal of the petitioner from service is disproportionate
to the alleged misconduct and that there are procedural
irregularities in the conduct of enquiry. Though the
Government took a tentative decision to impose a lesser
punishment, the PSC disagreed with the same. Though the
Tribunal, by Annexure-A13 order, directed the Government
to take an independent decision de hors the advice given
by the PSC, Annexure-A14 order was passed by the
Government in tune with the advice of the PSC and its
2024:KER:72751
earlier decision viz., Annexure-A12. It is further contended
that the petitioner was declared as a 'deserter' only w.e.f
01.04.2007 and his dismissal from service from
03.10.2006 with retrospective effect cannot be sustained.
It is further contended that further reference to Medical
Board was illegal and cannot be sustained.
4. Heard Sri.B.Mohanlal, the learned counsel for
the petitioner, Sri.A.J.Varghese, the learned Senior
Government Pleader and Sri.P.C.Sasidharan, the learned
Standing Counsel for PSC.
5. It is to be noted that, even in the earlier round
of litigation before the Tribunal, there was no challenge to
the enquiry proceedings or the enquiry report. What was
impugned in O.A.(EKM) No.94 of 2013 is the punishment
of dismissal from service and the rejection of Annexure-
A11 review petition. In Annexure-A13 order, the Tribunal
specifically observed that there is no challenge against the
enquiry proceedings or the enquiry report in the original
application. Annexure-A13 order has become final. By
2024:KER:72751
Annexure-A13, the Tribunal only interfered with Annexure-
A12 order passed in review petition and directed the
Government to take an independent decision de hors the
advice of the PSC. Therefore, it is not open to the
petitioner to challenge the enquiry proceedings or the
findings in the enquiry, in this Original Petition.
6. Regarding the contention of the petitioner that
Annexure-A14 order is issued influenced by the advice of
the PSC, on going through Annexure-A14, we cannot agree
with the same. It is an independent decision taken by the
Government. As regards the reference to the Medical
Board, it is pointed out by the learned Senior Government
Pleader that the petitioner was asked to appear before the
Medical Board as the genuineness of the medical certificate
produced by him was doubted.
7. The dismissal from service is a major penalty
under Rule 15(1)(m) of the Rules. Annexure-A8 order
dismissing the petitioner from service, Annexure-A10 order
rejecting his appeal and Annexure-A14 order rejecting the
2024:KER:72751
review petition are passed by the authorities competent
under the Rules. The petitioner had been on unauthorised
absence for more than three years and four months.
Though he was granted opportunity to rejoin duty, he did
not avail of the same. He was asked to appear before a
Medical Board, but he refused to appear. He was declared
as a 'deserter'. The enquiry was conducted in accordance
with the Rules and he participated in the enquiry. He has
not challenged the enquiry proceedings or the enquiry
report. He has only challenged the order of punishment,
the order in appeal and in review. Pursuant to the
direction of the Tribunal in Annexure-A13, the Government
considered Annexure-A11 review petition afresh,
independently and passed Annexure-A14 order. We do not
find any reason to interfere with Annexure-A14.
8. The petitioner got appointment in the District
Armed Reserve, Kollam under the compassionate
employment scheme. He had been on unauthorised
absence for more than three years and four months.
2024:KER:72751
'Police' is a disciplined force. It shoulders the great
responsibility of maintaining law and order and public
order in the society. People repose great faith and
confidence in it. The member of the Police service must be
worthy of that confidence. The petitioner, being a member
of a disciplined force, was required to act in a responsible
manner. We are of the view that the punishment of
dismissal from service is commensurating with the charge
of misconduct proved against the petitioner. We decline to
interfere with the order of the Tribunal.
The Original Petition (KAT) fails and accordingly, it
is dismissed.
Sd/-
A. MUHAMED MUSTAQUE
JUDGE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
2024:KER:72751
APPENDIX
PETITIONER ANNEXURES
Exhibit- THE TRUE COPY OF THE ORDER IN O.A.NO:92/2019
P1 DATED 01/11/2021 OF THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM BENCH.
Exhibit- THE TRUE COPY OF O.A.NO:92/2019 AND ANNEXURES
P2 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM BENCH.
Annexure- THE TRUE COPY OF THE MEDICAL PASSPORT DATED
A1 03/10/2006 ISSUED BY THE OFFICER IN CHARGE OF
OCHIRA POLICE STATION, KOLLAM.
Annexure- THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED
A2 03/10/2006 ISSUED BY DR.V.SIVAN KUTTY, CIVIL
SURGEON, TALUK HOSPITAL, THIRUVANANTHAPURAM
Annexure- THE TRUE COPY OF THE ORDER NO:A5(B)3294/07Q
A3 DATED 15/10/2007 OF THE 3RD RESPONDENT DECLARING
THE APPLICANT AS A 'DESERTER'.
Annexure- THE TRUE COPY OF THE (MEMO OF CHARGE) MOC
A4 NO:1/PR/AC II/08Q DATED 07/05/2008 ISSUED BY THE
4TH RESPONDENT.
Annexure- THE TRUE COPY OF THE PR MINUTES DATED 31/05/2010
A5 FINALIZED BY THE 4TH RESPONDENT.
Annexure- THE TRUE COPY OF THE SHOW CAUSE NOTICE
A6 NO:H2/PR/32/08Q DATED 30/06/2010 ISSUED BY THE
3RD RESPONDENT.
Annexure- THE TRUE COPY OF THE REPLY DATED 17/07/2010 TO
A7 THE SHOW CAUSE NOTICE SUBMITTED BY THE APPLICANT
BEFORE THE 3RD RESPONDENT.
Annexure- THE TRUE COPY OF THE ORDER NO:H2/PR32/08Q DATED
2024:KER:72751
A8 29/07/2010 ISSUED BY THE 3RD RESPONDENT
DISMISSING THE APPLICANT FROM SERVICE WITH
EFFECT FROM 03/10/2006.
Annexure- THE TRUE COPY OF THE APPEAL DATED 29/09/2010
A9 SUBMITTED BY THE APPLICANT BEFORE THE 2ND
RESPONDENT.
Annexure- THE TRUE COPY OF THE ORDER NO:A2(B)7911/10 TR
A10 DATED 11/01/2011 ISSUED BY THE 2ND RESPONDENT
REJECTING THE STATUTORY APPEAL OF THE APPLICANT
UNDER KPDIP & A RULES.
Annexure- THE TRUE COPY OF THE REVIEW PETITION DATED
A11 30/03/2011 SUBMITTED BY THE APPLICANT BEFORE THE
1ST RESPONDENT.
Annexure- THE TRUE COPY OF THE G.O.(RT.)NO:1509/2013/HOME
A12 DATED 03/06/2013 ISSUED BY THE 1ST RESPONDENT
REJECTING ANNEXURE-A10 REVIEW PETITION.
Annexure- THE TRUE COPY OF THE ORDER DATED 07/03/2017 IN
A13 O.A. (EKM)NO:94/2013 OF THIS HON'BLE TRIBUNAL
QUASHING ANNEXURE-A12.
Annexure- THE TRUE COPY OF THE GO(RT) NO:1944/2018/HOME
A14 DATED 07/07/2018 ISSUED BY THE 1ST RESPONDENT.
Exhibit- THE TRUE COPY OF THE REPLY STATEMENT DATED
P3 23/09/2019 FILED ON BEHALF OF THE 1ST RESPONDENT
BEFORE THE KAT.
Exhibit- THE TRUE COPY OF THE REPLY STATEMENT DATED
P4 DECEMBER, 2019 FILED ON BEHALF OF THE 5TH
RESPONDENT BEFORE THE KAT.
Exhibit- THE TRUE COPY OF THE RE-JOINDER DATED 22/03/2020
P5 FILED BY THE PETITIONER AGAINST THE REPLY
STATEMENT OF THE 1ST RESPONDENT BEFORE THE KAT.
Annexure- THE TRUE COPY OF THE JUDGMENT REPORTED IN
A15 2005(1) KLT PAGE 250 IN RAJAN VS. STATE OF
KERALA OF THE HON'BLE HIGH COURT OF KERALA.
2024:KER:72751
Exhibit- THE TRUE COPY OF THE RE-JOINDER DATED 22/03/2020
P6 FILED BY THE APPLICANT AGAINST THE REPLY
STATEMENT OF THE 5TH RESPONDENT BEFORE THE KAT.
