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SABU JACOB, POLICE CONSTABLE (NO.5160) versus STATE OF KERALA, REPRESENTED BY

High Court of Kerala

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SABU JACOB, POLICE CONSTABLE (NO.5160) v. STATE OF KERALA, REPRESENTED BY - WP(C) No. 1575 of 2007(K) [2007] RD-KL 2609 (5 February 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 1575 of 2007(K)

1. SABU JACOB, POLICE CONSTABLE (NO.5160),
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY
... Respondent

2. THE DEPUTY INSPECTOR GENERAL OF POLICE,

3. THE SUPERINTENDENT OF POLICE,

For Petitioner :SRI.KRB.KAIMAL (SR.)

For Respondent : No Appearance

The Hon'ble MR. Justice K.K.DENESAN

Dated :05/02/2007

O R D E R

K.K.DENESAN, J

W.P.(C)NO.1575 of 2007

Dated this the 5th day of February, 2007



JUDGMENT

The petitioner, while working as Police Constable, was served with memo of charges alleging certain misconduct on his part. The third respondent disciplinary authority appointed an enquiry officer to conduct formal enquiry into the charges. Ext.P6(a) enquiry report was furnished by the enquiry officer finding the petitioner guilty of the charges. On receipt of Ext.P6(a), the disciplinary authority, after going through the same, came to the finding that Ext.P6(a) can be accepted. On that basis, the third respondent proposed the penalty of removal from service on the petitioner. Ext.P6 notice was issued to the petitioner directing him to show cause why the proposed penalty shall not be imposed on him. Along with Ext.P6, copy of Ext.P6(a) enquiry report was also served on the petitioner. On receipt of Ext.P6 and P6 (a), the petitioner submitted Ext.P7 explanation before the third respondent. Thereafter the third respondent passed Ext.P8 order removing the petitioner from service holding that the explanation filed by the petitioner was not satisfactory.

2. This writ petition has been filed for a writ of certiorari to quash W.P.(C)No. 1575/2007 2 Ext.P8 order and for a direction to the third respondent to reinstate the petitioner in service and for consequential benefits.

3. Senior counsel appearing for the petitioner submits that Ext.P8 is vitiated for violation of the procedure prescribed before taking tentative decision by the disciplinary authorities in cases where the enquiring authority has furnished its report finding the delinquent employee guilty of the charges. According to the counsel, as soon as Ext.P6(a) report was received by the third respondent, a copy of the same ought to have been served on the petitioner without expressing any opinion as to whether the findings in the enquiry report were acceptable to the disciplinary authority or not. Only after the employee is given the opportunity to offer his explanation against the reasons and findings contained in the enquiry report and only after considering the same, decision on the question of acceptance or otherwise of the findings of the enquiry officer could have been taken. It is pointed out that this shall be the procedure to be followed in the matter of disciplinary proceedings. Learned counsel for the petitioner places reliance on the decision of the Supreme Court in Managing Director, ECIL v B.Karunakaran (1993(4) SCC 727).

4. Government Pleader, on instructions, submits that Ext.P6 contains only a tentative decision and since the disciplinary authority W.P.(C)No. 1575/2007 3 has not come to the final conclusion that the findings entered by the enquiring authority were acceptable to him and since the disciplinary authority had given an opportunity to the delinquent employee the opportunity to submit his explanation after serving a copy of the enquiry report also, there is no procedural violation.

5. I have considered the contentions raised by both sides and perused the materials on record, particularly, Ext.P6 notice dated 20.12.2006. The findings made by the disciplinary authority in the last but one paragraph of Ext.P6 notice is clinching. The same is extracted below:

6. A plain reading of the above quoted paragraph makes it clear that as far as the guilt of the petitioner is concerned, the disciplinary W.P.(C)No. 1575/2007 4 authority has arrived at a final conclusion against the petitioner and what remained was the determination of the quantum of penalty to be imposed on the petitioner for the misconduct said to have been proved. I am unable to accept the contention of the respondents that Ext.P6 shall be treated as provisional both in regard to the finding of facts as also the quantum of penalty. In this view of the matter, what follows is that the third respondent has not adhered to the procedure prescribed for considering the enquiry report, the stage for serving a copy of the same to the diligent employee and then taking appropriate decision as warranted, in the facts and circumstances.

7. In the normal course, I would have relegated the petitioner to the statutory remedy available to a delinquent employee. The relevant rules provide for appeals and review petitions. To direct the petitioner to invoke such remedies will only delay unnecessarily the final decision and that will result in injustice not only to the petitioner but also to the respondents. The respondents have got a duty to follow the correct procedure before taking decision with regard to the guilt or otherwise of the petitioner and imposing on him the appropriate penalty.

8. Hence, Ext.P6 as also Ext.P8 are quashed. The petitioner will be entitled to submit a detailed representation before the third W.P.(C)No. 1575/2007 5 respondent against the findings entered in Ext.P6(a) enquiry report, so that, the third respondent will consider the reasons given in Ext.P6(a) as also the findings therein along with the representation of the petitioner against Ext.P6. The third respondent shall consider Ext.P6(a) and the representation, uninfluenced by the opinion he had formed vide Ext.P6 show cause and Ext.P8 order. Appropriate decision shall be taken as expeditiously as possible. The petitioner shall submit his explanation against Ext.P6(a) within two weeks from the date of receipt of a copy of the judgment. Follow up action shall be taken by the respondents as early as possible and disciplinary proceedings finalised, in accordance with law, without delay.

K.K.DENESAN, JUDGE

css/ W.P.(C)No. 1575/2007 6


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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