Important pointsWhen, under Rule 17 of the Kerala Police Departmental Inquiries, Punishment & Appeal Rules, the order imposing penalty could be passed by the Government, only after consultation with the Public Service Commission, necessarily, the order reducing penalty could also have been passed only after consulting the Public Service Commission, in accordance with the stipulation in Rule 36A. In such circumstances the fact that the original order was not passed by the Government is of no consequence. Therefore, the contention based on the decisions in Abdul Khader & Gopinathan, that before passing Annexure-A9 order, the Government should not have consulted the PSC, is legally unsustainable.

V.G. Arun, J.

The State of Kerala and its officers have filed this Original Petition, being aggrieved by the order of the Kerala Administrative Tribunal in O.A.No.2180 of 2016, whereby the Tribunal had directed reinstatement of the first respondent in service with consequential benefits. The Tribunal also directed that the first respondent should be treated as continuing in service without break and that the period he was out of service should be counted for all service benefits, except pay and allowances.

2. The first respondent had filed the Original Application seeking to quash Annexures A4, A5, A6 & A9. The proceedings/orders aforementioned arose under the following circumstances: The first respondent, while working as Police Constable at the Mannar Police Station, unauthorisedly absented from duty from 26.1.2006 onwards, without submitting the requisite applications and medical passport. On that allegation and also on the allegation that while continuing in unauthorised absence, the petitioner had worked as an agent of a multilevel marketing company registered at Chennai, an enquiry was conducted and report submitted before the District Superintendent of Police. Based on the report a departmental enquiry was ordered. As part of the enquiry, memo of charges and statement of allegations were issued to the first respondent. But the first respondent did not submit any written statement of defence, nor did he produce any evidence. In the departmental enquiry, an officer from the Mannar Police Station was examined, who on the basis of the entry in the General Diary regarding Over Sanction of Leave (OSL) of the first respondent, proved the fact that from 26.1.2006 onwards the first respondent was unauthorisedly absent from duty.

3. The seven days medical passport and consecutive medical certificates issued by an Ayurveda Doctor, submitted by the first respondent covering the period from 25.1.2006 to 28.2.2007 were also marked as Exhibits. The prosecution witness was not cross-examined by the first respondent. On completion of enquiry, Annexure-A4 report was filed, finding the first respondent guilty of the charges of unauthorised absence from duty and engaging in private business, while continuing on unauthorised absence. The enquiry officer found that the actions of the first respondent amounted to grave indiscipline and misconduct.

4. On the basis of Annexure-A4 report, Annexure-A5 show cause notice was issued to the first respondent, to which also he did not submit any reply. Thereupon, Annexure-A6 order was passed by the third appellant terminating the petitioner from service, with effect from the date from which the first respondent was on unauthorised leave. Even though a remedy by way of appeal under Section 23 or review under Section 36 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 was available to the first respondent against Annexure-A6 order, he did not file either an appeal or revision. While so, one among the police constables against whom disciplinary action had been taken on similar charges as against the first respondent, challenged the punishment by filing O.A.No.260 of 2013 before the Kerala Administrative Tribunal and obtained a favourable order (Annexure-A10). Thereupon, for the first time, the petitioner raised a challenge against the punishment imposed on him, by filing a review under Section 36A of the Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958.

5. On receipt of Annexure-A8 Review Petition, the Government considered the contentions of the first respondent and initially decided to reduce the punishment imposed on the first respondent to withholding of annual increments with cumulative effect for a period of three years. The decision to modify the punishment was submitted before the Public Service Commission, for the purpose of consultation, as mandated under Rule 36A(1) of the Kerala Police Departmental Enquiries, Punishment and Appeal Rules