JUDGMENT :

A.Muhamed Mustaque, J.

INTRODUCTION:

These matters are related to disciplinary action proposed against Shri Kishore Kumar., the applicant before the Tribunal. Kishore Kumar’s name was included in the select list of officers for conferment to the Indian Police Service (IPS) against 22 vacancies in the Kerala Cadre for the years 2019 and 2020. His name was included in the select list subject to clearance of disciplinary proceedings. In the third round of litigation before the Tribunal, the Tribunal categorically found that there was absolutely no bona fides to initiate proceedings against Kishore Kumar. However, directed the Government to take a fresh decision in the light of the earlier direction of the Tribunal. The State as well as Kishore Kumar are before us challenging the order of the Tribunal.

BRIEF FACTS OF THE CASE:

2. Kishore Kumar investigated a crime registered by Perumpadappu Police on 15/2/2001. Kishore Kumar took charge as an investigating officer during 2008-2010. He investigated the case on the assumption that the dead body referred to in the crime was that of one Suroor who was reportedly missing and a missing complaint was registered with the police. As an investigation officer, Kishore Kumar arrested four friends of Suroor. Later it was found that, in the scientific examination, the dead body was not that of Suroor. Kishore Kumar had an unblemished record in police service. He was included in the select list for consideration for conferment of IPS. The select list was published on 16/11/2022 for the year 2020. On 12/10/2022, Kishore Kumar was served with a memo of charges alleging a serious lapse on his part in investigating the crime which occurred in the year 2001. This was forwarded to the Selection Committee which is UPSC. The selection committee thereafter met on 17/10/2022 and thus made the inclusion of Kishore Kumar’s name in the list provisionally, subject to disciplinary proceedings pending against him and also subject to the grant of an integrity certificate by the State Government. Kishore Kumar submitted a representation on 15/6/2022 explaining how he conducted the investigation and requested to drop further proceedings. He highlighted in the representation the decision to proceed against him is highly prejudicial and he suspects the involvement of some junior ranked officer who might have exerted influence on the Department. Kishore Kumar thereafter approached the Tribunal in O.A.No.1923/2022. The Tribunal disposed of the original application directing the Additional Chief Secretary Department Home to consider the representation and ordered to defer proceedings pursuant to the memo of charges and oral enquiry ordered. The Government rejected his representation holding that he committed gross dereliction of duty by arresting innocent persons on an assumption that the dead body was that of Suroor. He again approached the Tribunal in O.A.130/2023. The Tribunal disposed of the matter to reconsider the representation based on the scrutiny report which was made available subsequently. Thereafter, the Government passed an order on 6/7/2023 rejecting the representation and ordered disciplinary action. This was questioned in O.A.No.1512/2023. It is from that original application the impugned order in these original petitions was passed. The Tribunal after analysing all aspects relating to the matter observed that no bona fides exist to initiate proceedings. The Tribunal thereafter gave liberty to the Government to take a fresh decision. This is how the State as well as Kishore Kumar are before us.

WHAT IS A FAIR DISCIPLINARY PROCESS:

3. The question involved in this case depends upon answering the question relating to substantive fairness. Substantive fairness emanates from an interplay of Articles 14 and 21 of our Constitution in the context of disciplinary action. Substantive fairness in disciplinary action means there must be a fair and justifiable reason for an employer to proceed against an emplo