IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 15052 of 2009(B) -------------------------- PETITIONER: --------------- KURIAN,AGED 55 YEARS,POTTANPARAMBIL, NAYARUPURA KARA,IDUKKI VILLAGE. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL SMT.P.A.PRIYA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT,SECRETARIAT,TRIVANDRUM. 2. THE INSPECTOR GENERAL OF POLICE, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE,IDUKKI. 4. THE CIRCLE INSPECTOR OF POLICE, KATTAPANNA. BY SR.GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 15052 of 2009-B ------------------------------ Dated this the 10th day of June, 2009. J U D G M E N T Heard Sri.L.Rajesh Narayan Iyer, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. 2. The petitioner, a Driver in the Police Department was prosecuted for offences punishable under the Abkari Act along with one Smt.Radha with whom it is alleged, he was having adulterous relationship. He and the said Smt.Radha were convicted by the IVth Additional Sessions Court (Adhoc-II), Thodupuzha and sentenced to undergo imprisonment for two years and to pay a fine of Rs.1,00,000/- each. Simultaneously, departmental action was also initiated against the petitioner. The enquiry into the charges levelled against the petitioner was conducted and in the enquiry he was found guilty of the charges. The petitioner and Smt.Radha were convicted by the trial Court by judgment delivered on 8.1.2008. Thereafter, by Ext.P2 order dated 11.4.2008, the Superintendent of Police, Idukki, the competent disciplinary authority, imposed on the petitioner the punishment of removal from service. Aggrieved by Ext.P2 order the petitioner filed an appeal before the Inspector General of Police, Ernakulam Range under W.P(C) No. 15052 of 2009-B 2 Rule 36 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, hereinafter referred to as 'Rules' for short. The petitioner also challenged the judgment of conviction and sentence passed by the trial Court in S.C.No.132 of 2007 by filing Crl.A.No.341 of 2008 in this Court. By Ext.P3 judgment delivered on 22.8.2008 this Court set aside the judgment of conviction and sentence passed by the trial Court and acquitted the petitioner and the other accused giving them the benefit of doubt. Thereafter, by Ext.P4 order passed on 9.1.2009 the Inspector General of Police, Ernakulam Range dismissed the appeal filed by the petitioner from Ext.P2 order, removing him from service. The petitioner again moved the Inspector General of Police, Ernakulam Range by filing Ext.P5 review petition styled as one filed under Rule 36 of the Rules. By Ext.P6 letter dated 18.4.2009, the Inspector General of Police, Ernakulam Range informed the petitioner that Ext.P5 review petition does not lie before him and that the remedy of the petitioner is to move the Government. Along with Ext.P6, the original of Ext.P5 review petition and the papers accompanying it were returned to the petitioner. This writ petition was thereupon filed challenging Exts.P2, P4 and P6 and seeking a writ in the nature of mandamus commanding the Inspector General of Police, Ernakulam Range to consider Ext.P5 review petition and pass orders thereon within a time limit to be fixed by this Court. W.P(C) No. 15052 of 2009-B 3 3. Ext.P5 review petition is styled as one filed under Rule 36 of the Rules, which provides that the authority to which an appeal against an order imposing any of the penalties specified in Rule 15(1) lies, may of its own motion or otherwise, call for the records of the case in a disciplinary proceedings, review any order passed in such a case and, after consultation with the Public Service Commission where such consultation is necessary, pass such orders as deemed fit, as if the member of the service has preferred an appeal against such order. The first proviso to rule 36 provides that no application for review shall be entertained after the expiry of a period of two months from the date of passing the order. The second proviso to Rule 36 provides that no action under that rule shall be initiated more than one year after the date of the order to be reviewed. In the instant case, the petitioner had filed an appeal challenging Ext.P2 order imposing penalty, before the appellate authority namely the Inspector General of Police, Ernakulam Range. The said appeal was filed invoking Rule 23 of the Rules, which confers on the petitioner the right to file an appeal before the appellate authority. The said appeal was rejected by Ext.P4 order passed by the appellate authority. Rule 36 does not in my opinion confer on the appellate authority, the power to review its own orders. Rule 36 applies only in a case where the appeal lies from an order imposing any of the penalties specified in Rule 15(1) of W.P(C) No. 15052 of 2009-B 4 the Rules and the employee on whom the punishment was imposed does not challenge the order imposing punishment in appeal, but moves the appellate authority in review. In such cases Rule 36 empowers the appellate authority to review the order of the original authority as if the employee concerned has preferred an appeal against the said order. The petitioner cannot therefore in my opinion, invoke the power of the second respondent under Rule 36 and re-agitate the issue that was concluded by Ext.P4 order passed on the appeal filed by him. The petitioner ought to have in my opinion, invoked the power of the Government under Rule 36A of the Rules. I am therefore persuaded to hold that the petitioner cannot successfully assail Ext.P6 or seek a writ in the nature of mandamus commanding the second respondent to consider Ext.P5 review petition and pass orders thereon. 4. Rule 36A empowers the Government to review any order passed by the subordinate authority which is made or is appealable under these Rules. Since 36A confers on the petitioner the right to move the Government, I am of the opinion that he should move the Government seeking review of the orders passed by the original and appellate authorities before seeking the intervention of this Court. I accordingly dispose of this writ petition with the direction that in the event of the petitioner filing a review petition before the Government within two W.P(C) No. 15052 of 2009-B 5 months from today, the Government shall consider the same and pass orders thereon after affording the petitioner a reasonable opportunity of being heard. Final orders in the matter shall be passed within four months from the date on which the petitioner files a review petition before the State Government. The contentions of the petitioner on the merits are kept open. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab