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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, K. BABU, JJ.
State of Kerala – Petitioner
Versus
Jose A. S/o Alfred – Respondent
O.P. (KAT) No. 312 of 2020
Decided On : 17-03-2021
Kerala Public Service Commission (Consultation) Regulation, 1957 – Regulations 6 – Constitution of India, 1950 – Articles 320, 226 and 227 – Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 – Rule 36A – Service benefits – Suspension – Prayers in Original Petition filed under Articles 226 and 227 of Constitution of India are to set aside Exhibit P4 impugned Order of the Kerala Administrative Tribunal in O.A. Declare that the applicant is entitled to all service benefits as if Annexure A3, A4 and A6 were never issued. – Declare that the period of suspension of the applicant from 21.10.2008 to 21.2.2009 is to be treated as duty for all purposes. – Direct the respondents to treat the period of suspension of the applicant from 21.10.2008 to 21.2.2009 as duty for all purposes and disburse him all consequential benefits, within a time limit to be fixed by this Hon'ble Tribunal. – Grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of this case including the cost of this Original Application
Finding of the court :
Merely because the Commission has disagreed with the proposal to reduce the penalty, will not absolve the Government from its primary role of deciding as to whether the fact findings would justify the impugned orders and if the fact findings does not justify the same, then there is no question of imposing of any penalty, whatsoever. – That cardinal and crucial aspect of the matter has been lost sight of by the Government and hence the decision is vitiated on that account and would warrant interdiction at the hands of this Court in exercising the powers of judicial review and superintendence. – Court set aside Ext.P-4 final order of the Tribunal to the extent it finds that consultation with the Public Service Commission was not necessary. – Court would also uphold the quashment of Annexure-A6 order but we would further order that the review petition/revision petition filed by the original applicant referred to in Annexure-A6 will stand remitted to the competent authority of the State Government in the Home department for consideration and decision afresh. – Clause (c) of Regulation 6(2) would indicate that nothing in Regulation 6(1) shall be deemed to make it necessary for the Government to consult with the Commission in any case in which the Commission has, at any previous stage given advice in regard to the order to be passed and no fresh question has thereafter arisen for determination. – Consultation with the Public Service Commission has already been duly completed – Court would make it clear that in case, the fact finding does not justify the finding of guilty, then there is no question of imposing any penalty whatsoever and the matter has to be closed. – Final orders should be passed afresh on the said review petition /revision petition, by the competent authority of the State Government in the Home department, without much delay, preferably within a period of 2 months from the date of receipt of certified copy of this judgment along with the additional written submissions of the applicant and in the light of the observations and findings in this judgment. – Orders and directions of the Tribunal at Ext.P4 will stand modified as above –
Result : Original Petition Disposed of.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The prayers in the aforecaptioned Original Petition filed under Articles 226 and 227 of the Constitution of India are as follows (See Page No. 8 of the paper-book of this O.P.):
2. To issue other reliefs, this Honourable Court may deem fit in the Original Application.”
2. Heard Sri. B. Vinod, learned Senior Government Pleader appearing for the petitioners (State of Kerala and Others) in the OP/respondents in the O.A. and Smt.Rekha Vasudevan, learned counsel appearing for the sole respondent in the OP/sole applicant in the O.A. before the Tribunal.
3. The prayers in the instant Ext.P1 Original Application, O.A. No. 291/2018 filed by the respondent herein before the Tribunal are as follows (See Page Nos. 23 and 24 of the paper-book of this O.P.):
(ii) Declare that the applicant is entitled to all service benefits as if Annexure A3, A4 and A6 were never issued.
(iii) Declare that the period of suspension of the applicant from 21.10.2008 to 21.2.2009 is to be treated as duty for all purposes.
(iv) Direct the respondents to treat the period of suspension of the applicant from 21.10.2008 to 21.2.2009 as duty for all purposes and disburse him all consequential benefits, within a time limit to be fixed by this Hon'ble Tribunal.
(v) Grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of this case including the cost of this Original Application.”
4. The Tribunal after hearing both sides, has now rendered impugned Ext.P4 final order dated 25.02.2020 in the above O.A. whereby the impugned disciplinary proceedings at Annexures-A3, A4 and A6 have been set aside and R3 in the O.A. (The District Police Chief, Alappuzha) has been directed to pass orders restoring the increment withheld from the applicant and also granting consequential monetary benefits, within two months, etc. and that the period of suspension of the applicant shall be treated as duty for all purposes, including salary, etc.
5. The applicant is a Civil Police Officer (Driver) serving the police department of the State Government. While serving as Police Driver in the District Armed Reserve, Alappuzha, he was suspended from service, as per Annexure-A1 order dated 21.10.2008 issued by the District Police Chief (Superintendent of Police) and he was also later served with memo of charges for the allegations, for which he has been suspended from service. The applicant was reinstated to service on 10.02.2009. It appears that a formal enquiry was conducted by the respondents in the O.A. in terms of the provisions contained in the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 (KPDIP and A Rules, for short) and later, the District Police Chief, as the disciplinary authority, has issued Annexure-A3 penalty order dated 21.10.2009 finding the applicant as guilty of the charges and imposing on him the penalty of barring of one increment with cumulative effect and the suspension period was ordered to be treated as duty only for the limited purpose of pension and gratuity and the emoluments were limited to the subsistence allowance already paid. The applicant submitted statutory appeal before the appellate authority (Inspector General of Police) in terms of the abovesaid provisions in the abovesaid Rules and the said appeal has been dismissed as per the impugned Annexure-A4 appellate order dated 25.05.2011 issued by the Inspector General of Police confirming the penalty at Annexure-A3. Later, the applicant had also filed review/revision before the competent authority of the State Government in the Home Department. The competent authority of the State Government came to the considered finding that the punishment imposed on the applicant, as per Annexure-A3 as confirmed by Annexure-A4 is too harsh and the charge is only having failed to inform the Mo
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