IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 26TH JULY 2007 / 4TH SRAVANA 1929 OP.No. 6499 of 2003(W) --------------------------------- PETITIONER: ------------------- C.V.XAVIER, CIRCLE INSPECTOR OF POLICE, CB CID (CFS), ERNAKULAM. BY ADV. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ADDITIONAL SECRETARY TO GOVERNMENT, HOME (H) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, KERALA, THIRUVANANTHAPURAM. 3. THE INSPECTOR GENERAL OF POLICE, NORTH ZONE, KOZHIKODE. BY GOVERNMENT PLEADER SMT. T.B. RAMANI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 6499/2003: J U D G M E N T NONE APPEARS. DISMISSED. 26/07/2007. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE. ORDER ON C.M.P. NO. 11469/2003 IN O.P. NO. 6499/2003 DISMISSED 26/07/2007. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE prv. P.R. RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 6499 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2009 J U D G M E N T The petitioner is challenging Exts.P2, P3 and P4 orders, whereby the disciplinary proceedings have been finalised, imposing a punishment of barring two increments without cumulative effect. 2. The petitioner was working as a Circle Inspector of Police, Kannur during the period from 26.7.1993 to 19.10.1993. While so, he was suspended from the service on 19.10.1993 pending enquiry and was served Ext.P1 Memo of charges, mainly raising three allegations; that the delinquent officer did not attend the conference scheduled on 20th September, 1993; that he behaved in quite an unbecoming manner as a member of the disciplined force by using obscene words against the higher authorities through the wireless on 15.10.1993 and further that, he refused to meet the Sub Collector on the relevant day, in connection with the Law and Order problems, despite the specific direction given by the higher authorities in this regard. 3. The misconducts committed by the petitioner were enquired into by appointing a Dy. Superintendent of Police as the O.P. No. 6499 OF 2003. : 2 : enquiry officer. On completion of the enquiry, the enquiry officer held that all the three charges levelled against the delinquent officer had been proved. Based on the findings in the enquiry, the disciplinary authority imposed the punishment of barring two increments with cumulative effect as per Ext.P2 order. 4. Aggrieved by Ext.P2, the petitioner preferred an appeal before the second respondent, who, taking note of the facts and circumstances and the gravity of the misconducts proved, declined interference and the appeal was dismissed as per Ext.P3; which in turn was subjected to challenge by filing revision petition before the first respondent/Government of Kerala. 5. The first respondent, after evaluating the materials on record, observed that even though the Superintendent of Police (at whose instance, the basis for the second charge was recorded) was not examined before the enquiry officer, there was absolutely no reason to doubt the contents of the letter dated 15.10.1993 sent by the superintendent. Still, it was held that the second charge was not proved “beyond doubt” and accordingly the punishment was modified by reducing the same withholding of two increments without cumulative effect. The petitioner, challenges the above order stating that it has very much O.P. No. 6499 OF 2003. : 3 : adversely affected the career prospects of the petitioner. 6. A detailed counter affidavit has been filed seeking to sustain the orders passed by the concerned authorities; particularly the first respondent. The various averments and allegations raised in the Writ Petition including as to the infringement of the principles of natural justice have been rebutted, asserting that the enquiry was conducted in conformity with the relevant rules and that there was no violation of any known principles of natural justice. It is also pointed out that, despite the opportunities given, the petitioner did not attend the personal hearing before the 3rd respondent, who passed the original order imposing the punishment. The particulars of posting in this regard, given on 15.6.1998, 1.9.98 and from 25.11.1998 to 15.12.98 have been specifically adverted to in Page 6 of the counter affidavit as aforesaid. 7. With regard to the contention raised by the petitioner that there is an instance of earlier punishment in respect of the second charge, leading to Ext.P6 ordering withdrawal of two increments; it has been specifically denied by the first respondent stating that the punishment imposed earlier was with regard to something else. Learned counsel for the petitioner also conceded during the course of hearing, that it was not respect of the O.P. No. 6499 OF 2003. : 4 : second charge. 8. With regard to the second charge, as observed by the first respondent, PW4 has given evidence with reference to the entries made in the 'Wireless Log Book' as to the obscene words used by the petitioner against the superior officer. It is also relevant to note that the letter dated 15.10.1993 written by the concerned Superintendent of Police can't be ignored, though the Superintendent of Police was not personally examined before the enquiry officer. It was after considering all the facts, circumstances and evidence on record, that the finding of guilt was confirmed by the Revisional authority/Government. The original punishment barring two increments with cumulative effect has been modified by barring two increments without cumulative effect. The finding and reasoning given by the 1st respondent/Government does not call for interference at the hands of this Court. More so, when the adequacy of the evidence cannot be considered or evaluated under Article 226 of the Constitution of India and further when, there is no question of proving the guilt “beyond doubt” in a disciplinary proceeding where preponderance of probability is enough and there is no allergy even to 'hear - say' evidence as held by the Apex Court in 1982 (1) LLJ 46 STATE OF HARYANA VS. A RATTAN O.P. No. 6499 OF 2003. : 5 : SINGH and 1982(2)LLJ 54 S.N. NAGARAJALU ETC. ETC. & OTHERS VS. RAILWAY BOARD & OTHERS. 9. The contention raised by the petitioner that he has lost the chances of promotion because of the pendency of the proceedings also does not deserve to be considered, in view of the finding on merits. However, it is also noted that when the matter was brought up for consideration with regard to the instance/chance for promotion, appropriate direction was issued by this Court to consider the petitioner's candidature also by the DPC, even by adopting “sealed cover procedure”, if so necessitated(as per interim order dated 15.10.2003). There is no case for the petitioner that the respondents did not pursue any such course as ordered by this Court or that any prejudice has been caused to him in this regard. In the above facts and circumstances, this Court does not find any merit or bonafides in the Writ Petition. The Writ Petition fails and it is dismissed accordingly. ( P.R. RAMACHANDRA MENON, JUDGE) jma