IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 OP.No. 5575 of 2001(L) ------------------------------------ PETITIONER(S): ------------------------ P.ACHUTHAKUTTY, (RETITED SUB INSPECTOR OF POLICE, DISTRICT CRIME RECORDS BUREAU, PALAKKAD) PAREKKAD HOUSE, KUTTANASSERY PO. (VIA) THIRUVAZHIYODE, PALAKKAD DISTRICT. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY MR.V.VARGHESE SMT.RESMI G. NAIR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE INSPECTOR GENERAL OF POLICE, NORTH ZONE, KOZHIKODE. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR. GOVERNMENT PLEADER MR.SHYSON P.MANGUZHA FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.9235/2001 IN OP. NO.5575/2001 Dismissed 16.02.2009 SD/- HARUN-UL-RASHID APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE MEMO OF CHARGES NO.A2-32/PR/95/CR (H1-PR 44/95P) DT. 29.7.95 WITH THE STATEMENT OF ALLEGATIONS APPENDED. P2:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, SHORANUR. P3:- COPY OF THE ORDER NO.A2-32/PR/95 CR(CRO.163/95) DT. 5.12.95 OF THE DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL ZONE, THRISSUR. P3(a):- COPY OF THE APPENDED PUHISHMENT ROLL MINUTES OF EXT.P3. P4:- COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE INSPECTOR GENRAL OF POLICE CENTRAL ZONE, ERNAKULAM DT. 9.11.96. P5:- COPY OF THE ORDER NO.A2/30700/97 NZ DT. 13.1.98 OF THE 3RD RESPONDENT. P6:- COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 22.6.98. P7:- COPY OF THE JUDGMENT IN OP.14117/2000 OF THIS HONOURABLE COURT DT. 23.5.2000. P8:- COPY OF THE GO(RT) 4683/2000/HOME DT. 28.11.2000. P9:- COPY OF THE TESTIMONY OF PW.1 IN C.C. 8/95 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, OTTAPPALAM. P10:- COPY OF THE TESTIMONY OF PW.2 IN CC. 212/95 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, OTTAPPALAM. P11:- COPY OF THE ORDER DT. 8.10.96 IN CC. 212/95 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, OTTAPPALAM. P12:- COPY OF THE ORDER NO.A2/32/PR/95/CR(CRO 45/97) DT. 13.1.97 OF THE DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL RANGE, THRISSUR. TRUE COPY, P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- O.P.NO.5575 OF 2001 ---------------------------- DATED THIS THE 16TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is a retired Sub Inspector of Police, District Crime Records Bureau, Palakkad. In connection with Crime No.4/95 against 2 accused persons having committed the offence punishable under Sections 324, 341 and 452 read with Section 34 of the Indian Penal Code, the petitioner conducted an investigation and submitted a report before the Judicial First Class Magistrate's Court, Ottappalam deleting the offence punishable under Section 452 of the Indian Penal Code. Petitioner was placed under suspension by order dated 22/2/1995 of the Deputy Inspector General of Police, Central Range, Thrissur. The Deputy Superintendent of Police, Shoranur was authorised to conduct an oral enquiry into the allegations levelled against the petitioner. The sum and substance of the allegation is that the investigation conducted by the petitioner was not proper. Ext.P1 is the memo of -2- O.P.No5575/2001. charges. The main allegation is that he had committed grave dereliction of duty and showed irresponsibility by not preparing scene mahazar, by not taking into custody the torn cloth of the victim Sulekha, by not including the sections of law which really ought to have been included and diluted the seriousness of the case by improper investigation. Ext.P2 is the explanation submitted by the petitioner. The Enquiry Officer found that dereliction of duty and irresponsibility have been proved. The Deputy Inspector General of Police, Central Range, Thrissur passed an order imposing punishment of barring of next three increments with cumulative effect. Ext.P3 is the order passed by the disciplinary authority. 2. Petitioner challenges Ext.P3 order in appeal. That appeal was rejected by the Inspector General of Police, North Zone, Kozhikode. Ext.P5 is the appellate order. On a reading of the appellate order it is clear that the order does not reflect the consideration of the matter on merits. The Appellate Authority did -3- O.P.No5575/2001. not discuss the merits of the case. What are the charges, what is the evidence adduced during enquiry, whether those materials are enough to conclude the guilt of the person and several other matters, which are expected to be considered by the Appellate Authority, have not been considered at all. 3. In this connection, the learned counsel for the petitioner drew my attention to Rule 35 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. In Rule 35(1) it is stipulated that in an appeal filed against the order imposing any penalty specified in Rule 15 the Appellate Authority shall consider: (a) whether the facts on which the order was based have been established, (b) whether the facts established afford sufficient ground for taking action and (c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such order as it thinks proper. 4. Ext.P5 order does not reflect the consideration of the facts covered by clauses a, b and c of Rule 35(1). The Police Officer -4- O.P.No5575/2001. stated that he has examined the relevant documents and that no grounds are made out to reconsider the punishment imposed. Therefore the appeal fails. This is the consideration and conclusion arrived at by the Appellate Authority. The Appellate Authority, who is the higher Rank Officer in the Police Department, is not expected to pass such orders. Being an Appellate Authority he should bear in mind the duties and responsibilities cast on him to consider a case on hand in accordance with law. In this case no facts on which the order was passed have been discussed or the said facts have been found to be established. There is no further finding that the facts established afford sufficient grounds for taking action. So long as there was no consideration of the questions on merits, there is no question of entering a finding regarding the facts established. Clause (a) is not discussed or considered at all. The question of consideration of Clause (b) does not arise. Clauses (a) and (b) are not followed, since there was no consideration at all regarding the facts and the evidence leading to -5- O.P.No5575/2001. the guilt of the incumbent. The question as to whether the penalty imposed is excessive or inadequate also was not considered. It is very clear that Clauses a, b and c are not followed by the Appellate Authority while passing Ext.P5 order. 5. The Reviewing Authority passed Ext.P8 order. In fact a review petition was filed against Ext.P5 Appellate Order. In the facts and circumstances, the duty of the Reviewing Authority is to consider the matter on merits and enter a finding as to whether the Appellate Authority considered the matter on merits and whether such findings are sustainable. Instead of passing appropriate order the Reviewing Authority confirmed the order passed by the Appellate Authority, by which the same mistake was repeated. Therefore, Ext.P5 and P8 are unsustainable in law. This Court is not expected to go into the merits of the case and pass orders either confirming the sentence imposed or to enter a reverse finding that the charges are not proved. It is for the statutory authority to look into the question under the statutory provisions. The 3rd respondent -6- O.P.No5575/2001. is directed to re-consider the appeal on merits, after affording an opportunity of being heard to the petitioner. The petitioner is at liberty to urge all the contentions raised and to be raised before the Appellate Authority and the Appellate Authority shall pass appropriate orders. In view of the fact that the matter is long pending, the 3rd respondent shall consider and dispose of the appeal within a period of four months from the date of receipt of a copy of this judgment. Exts.P5 and P8 are quashed. Original Petition is allowed. HARUN-UL-RASHID, Judge. kcv.