IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WP(C).No. 12515 of 2007(M) -------------------------- PETITIONER(S): --------------- T.V.VIJAYARAJ, S/O.LATE THOMSON J., SUB INSPECTOR OF POLICE, ARMED RESERVE CAMP, KOLLAM. BY ADV. SRI.SAIGI JACOB PALATTY RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY, HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY INSPECTOR GENERAL OF POLICE, SOUTHERN RANGE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12515 of 2007(M) -------------------------- PETITIONER'S EXTS: EXT.P1:-COPY OF JUDGMENT DTD.12.3.03 IN OP NO.3627/02 EXT.P2:- COPY OF REPRESENTATION DTD.8.7.03 TO R2 EXT.P3:- COPY OF REPRESENTATION DTD.20.5.2004 TO R2 EXT.P4:- COPY OF ORDER NO.A2(a) 3651/01 TR DATED 17.08.04 EXT.P5:- COPY OF GO(Rt) NO.2446/04/HOME DTD.6.11.04 EXT.P6:- COPY OF JUDGMENT IN COC NO.1251/04 DTD.17.11.04 EXT.P7:- COPY OF TRO NO.73/04 EXT.P8:- COPY OF GO(Rt) NO.601/05/HOME DATED 11.3.05 EXT.P9:- COPY OF JUDGMENT IN WP(C) NO.20178/05 DTD 13.6.06 EXT.P10:- COPY OF GO(Rt) NO.529/07/HOME DTD.26.2.07 RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.12515 OF 2007 --------------------------------------- Dated this the 10th day of March, 2011 JUDGMENT The petitioner in this writ petition, at the time of filing the writ petition, was a Sub Inspector of Police in the Armed Reserve Police of the State of Kerala. He has filed this writ petition seeking the following reliefs: “1. To issue a Writ of Certiorari and call for the records related to Ext.P10 and to quash the same. 2. To issue a Writ of Mandamus, order or direction to the respondents to regularize the service of the petitioner for the period from 02-02-2000 to 04-07- 2003 treating the same as eligible leave and leave without allowances. 3. To issue a Writ of Mandamus, order or direction to the respondents to convened the DPC and promote the petitioner forthwith restoring his seniority” The facts leading to the writ petition is available in Ext.P1 judgment in O.P.No.3627/2002 and this writ petition is only a sequel to that writ petition. Therefore, I shall extract the said judgment in full, which reads as follows: “The petitioner is a Sub Inspector of Police in the Armed Reserve Police. He joined service as Sub Inspector in 1999. While working in Armed Reserve City Camp Thiruvananthapuram, he was suspended from service by Ext.P2 order dated 19.7.1996. He was suspended on the W.P.(C)No.12515/07 2 basis of a crime registered against him under various provisions of the Indian Penal Code. Later, his suspension was withdrawn. He was reinstated in service and the period he was under suspension was ordered to be treated as duty for all purposes by Ext.P11 dated 2.2.2000. Departmental enquiry against him was also dropped. It was on the basis of the finding that the case has been registered against him falsely and he was innocent in the matter. Later, on the basis of the request of the petitioner, by Ext.P14 order, he has been transferred from Thiruvananthapuram to Kollam. Now this Original Petition is filed seeking the following reliefs: i) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the 2nd and 3rd respondents to appoint and post the petitioner as Reserve Sub Inspector of Police to any other Districts other than Thiruvananthapuram and Kollam Districts directly without insisting to report and relieve at Armed Reserve Camp, Thiruvananthapuram. ii) Issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to pay the arrears of salary during the suspension period along with 24% interest and also to pay the salary for the period from February 2000 till the posting and appointment of the petitioner to any other Districts other than Thiruvananthapuram and Kollam superseding the posting at Kollam. iii) Issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 1st to 3rd respondents to grant 5 lakhs rupees as interim compensation for the hardships, mental agonies, financial constraints and lose of good fame and reputation among the public pursuant to the illegal and arbitrary suspension order passed on the false, frivalous and concocted special report filed by the Circle Inspector of Police, Kattakada. iv) Issue a Writ of Mandamus or any other appropriate writ, order or W.P.(C)No.12515/07 3 direction, directing the 2nd and 3rd respondents to conduct a threadbare enquiry against the 7th respondent for the foul play and fraud committed by him while discharging the duties as a responsible Government Servant for crucifying the petitioner with the connivance for the defacto complainant by way of submitting a false and frivalous special report against the petitioner by suppressing the material truth and facts. (v) Issue such other relief that this Hon'ble Court deems fit and proper. The second respondent has filed a counter affidavit resisting the prayers in the Original Petition. 2. I heard both sides. The petitioner wants to be relieved from A.R. Camp Thiruvananthapuram without reporting there. The reason is, because of the harassment meted out to him and the resultant agony suffered by him. he is not in a position to meet his colleagues and subordinates at Thiruvananthapuram. But since the petitioner has been cleared off all allegations he could proudly report there holding his head high. Therefore the petitioner need not be diffident in reporting there for being relieved. 3. In case the petitioner reports at A.R. Camp Thiruvananthapuram and produces a copy of this judgment, he shall be relieved from there, so that he can join at Kollam to which place he has been transferred by Ext.P14. The period he was out of service from the date of reinstatement till the date of reporting at A.R. Camp Thiruvananthapuram shall be regularized in accordance with law if the petitioner submits an application for the same before the competent authority. 4. The second prayer is for payment of salary for the period he was kept under suspension. By Ext.P11 order, it was already been directed to treat the said period as duty for all purposes and the result, is that he will be entitled to get all benefits including salary, less the amount received by him by way of subsistence allowance. After joining at Kollam, the petitioner may move the competent authority for releasing the benefits arising out of Ext.P11 and in that event the said authority shall draw and disburse the salary due to him within one month from the date of motion made by him W.P.(C)No.12515/07 4 in this regard. 5. The third prayer of the petitioner is for awarding compensation to the tune of Rs.5 lakhs. I think it is a matter which the petitioner can agitate before the appropriate Civil Court. All the contentions of the petitioner made in support of the claim for compensation are kept open and the petitioner may work out his remedy before the appropriate forum. 6. The 4th prayer of the petitioner is for a direction to respondents 2 and 3 to hold an enquiry into the conduct of the 7th respondent which has resulted in causing grave injury to the petitioner. The stand of the second respondent on this aspect is that the mistake committed by the 7th respondent while conducting the investigation cannot be termed as deliberate. There can be bonafide errors in arriving at conclusions on the basis of the statements of witnesses. What ever be that I think this is a matter which can be looked into by one of the senior Police Officials. The petitioner may file a representation highlighting his grievances before the third respondent along with a copy of this judgment. In that event, the third respondent will look into the grievances of the petitioner, uninfluenced by the stand taken by the second respondent in the counter affidavit in the Original Petition and inform the petitioner regarding the result of his investigation into the grievances, within four months from the date of receipt of a copy of this judgment. 7. Learned counsel for the petitioner submits that because of the suspension, petitioner's juniors were promoted. The petitioner will be free to take up his grievances in this regard before the competent authority by filing appropriate representations. In that event the competent authority will consider his grievances without delay and pass appropriate orders thereon. The Original Petition is disposed of as above. As directed in Ext.P1 judgment, the petitioner's case for regularisation of his period of service from 2.2.2002 to 4.7.2003 and his claim for promotion were considered by the Government by passing Ext.P5 order dated 6.11.2004, the W.P.(C)No.12515/07 5 operative portion of which reads as follows: xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx In the light of the above order, Government have examined the matter in detail. Shri. Vijayaraj was transferred on his request from AR Camp, Thiruvananthapuram and posted at AR Camp, Kollam. But he did not report at Thiruvananthapuram to get his relieving order. Instead he filed O.P.3627/02 before the Hon'ble High court ie. That too after a lapse of more than one year. The Hon'ble High Court while disposing of the O.P. as also directed him to report at Thiruvananthapuram. Then only he rejoined duty. Thus he deliberately absented unauthorisedly from service from 02.02.2000 to 04.07.2003. He did not represent before the higher authorities for redressal of his grievances if any. As such there is no justification for his disobedience in not complying with the orders of the Deputy Inspector General of Police, Thiruvananthapuram Range (reinstating and posting at AR Camp, Thiruvananthapuram) Therefore, Government order that the period he was out of service from 02.02.2000 to 04.07.2003 will not be treated as duty. As regards the petitioners claim for promotion, his name was not recommended due to his suspension from service from 27.07.1996 to 02.02.2000 and also he was unauthorisedly absent from 02.02.2000 to 4.07.2003. The next Departmental Promotion Committee which met also couldn't consider his name for promotion as Reserve Inspector as he was not an approved probationer and due to the absence of relevant Confidential Reports for the Check period. In view of this fact, Government order that promotion will not be granted to him at present”. Contending that the said order amounts to Contempt of Court, the petitioner moved this Court by filing Contempt Case (C) W.P.(C)No.12515/07 6 No.251/2004. Ext.P6 is the judgment in that Contempt Case, the operative portion of which reads as follows: xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx Pursuant to the said direction, now the Government have passed Annexure R1(a) order. Both the claims of the petitioner, directed to be considered on 13.10.2004, have been considered and rejected by the said order. The learned counsel for the petitioner points out that the direction to regularise the period of absence, has not been obeyed by the Government. It is true that the Government have decided, not to treat the period as duty. But, the Government is bound to say in what manner the said period is going to be treated in the light of Annexure A judgment. It is also submitted that the claim of the petitioner for promotion has been rejected plainly on untenable grounds. The reasons given by the Government, including the one, that he is not an approved probationer, are not correct. This will be evident from Annexiure D, it is submitted. I also, prima facie, feel that, going by the contents of Annexure R1(a) order, there is some force in the contentions of the petitioner. But, the validity of Annexure R1(a) order cannot be considered in this Contempt of Court case. Accordingly, the Contempt of Court case is closed without prejudice to the contentions of the petitioner and his right to challenge Annexure R1(a) order in appropriate proceedings”. Ext.R1(a) mentioned in Ext.P6 judgment is Ext.P5 in this writ petition. Subsequently, by Ext.P8 order, the disciplinary proceedings initiated against the petitioner for absence for the period from 2.2.2002 to 4.4.2003 were dropped. The W.P.(C)No.12515/07 7 petitioner challenged Ext.P5 by filing W.P.(C)No.2018/2005, which was disposed of by Ext.P9 judgment, the operative portion of which reads as follows: “xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 3. I heard the learned counsel on both sides. Having regard to the facts of the case, I feel that the Government should consider whether the above period could be treated as eligible leave, provided there is leave to his credit. So, if the petitioner files a representation before the Government, along with a copy of this judgment, it shall consider whether the above said period could be treated as leave. Once the said period is treated as leave, the petitioner's grievance regarding supersession of him in the matter of promotion, has also to be considered by the competent authority. On the basis of the fate of the decision on his representation, the petitioner will be free to move the competent authority to review the supersession of him in the matter of promotion. 4. Needless to say, even if the said period is not regularised as claimed by him, still, he may be entitled to get promotion in accordance with his seniority and qualifications. If the petitioner has such a claim, even if the aforementioned period remains as not regularised, he can move the competent authority by appropriate representation. In that event, the competent authority shall dispose of the same without delay and he shall be given a reply on his representation, at any rate, within three months from the date of receipt of the same”. Subsequently, the Government passed Ext.P10 order, the W.P.(C)No.12515/07 8 operative portion of which reads thus: xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The request of the petitioner to regularise the period in which he was out of service (ie.from 02.02.2000 to 04.07.2003) was examined by Government in two times. In both occasions the Government order that the period in which the petitioner was out of service will not be treated as duty. The contention raised in the representation was already examined in two times. The petitioner has not adduced any fresh ground to interfere with the Government Orders already issued. The averments contained in the representation do not merit consideration. Hence the representation submitted by the petitioner read as 5th paper above is rejected. The direction of the Hon'ble High Court in its judgment dated 13.06.2006 in WP 20178/2005 filed by Shri. T. Vijayaraj, Reserve Sub Inspector of Police is complied with accordingly. It is in the above backdrop that the petitioner has filed this writ petition seeking the above said reliefs. 2. A counter affidavit has been filed by the 1st respondent supporting the action of the respondents. 3. I have considered the rival contentions in detail. As is clear from what is stated above, the petitioner's claims are two fold. One is regarding regularisation of the period of service from 2.2.2002 to 4.7.2003 and the other is consideration of the petitioner's claim for promotion. W.P.(C)No.12515/07 9 Regarding the first point, Ext.P5 order was passed, wherein the period was refused to be treated as duty. The petitioner had approached this Court and from Ext.P9 judgment, it is abundantly clear that this Court did not quite approve of the order of the Government treating the period as non-duty. This Court specifically held that 'having regard to the facts of the case, I feel that the Government should consider whether the above period could be treated as eligible leave, provided there is leave to his credit'. If this Court approved of Ext.P5 in that respect, there was no reason for this Court to say so. Therefore, the very intention in passing Ext.P9 judgment was to direct the respondents to take a more lenient attitude in the matter. As such, I do not think that the action of the respondents in again refusing to treat the period as eligible leave and leave without allowances does not appear to be one imbibing the spirit of Ext.P9 judgment. To that extent, I am inclined to interfere with Exts.P5 and P10 order. It is all the more so, since the respondents themselves chose to drop the disciplinary proceedings against the petitioner for the said period of absence from duty, it is not as if the petitioner was W.P.(C)No.12515/07 10 guilty of an unpardonable misconduct. Therefore, I am of opinion that the 1st respondent ought to have treated the period of absence as eligible leave to the extent there was leave to his credit and the balance period as leave without allowances. There would be a direction to that effect to the 1st respondent. 4. As far as the petitioner's claim for promotion is concerned, in Ext.P9 it has been rejected on two grounds. First is that he was not an approved probationer and the 2nd is that the Departmental Promotion Committee could not consider his name for promotion due to the absence of relevant confidential reports for the relevant period. That means, the petitioner's case was not considered at all by the Departmental Promotion Committee. In Exts.P1 and P6 judgments, this Court had specifically directed the Government to consider the claim of the petitioner for promotion. That being so, the Government was duty bound to see that the Departmental Promotion committee considers the claim of the petitioner for promotion. The ground that he was not an approved probationer is no longer valid, since by Ext.P7 order in March 2004 the petitioner W.P.(C)No.12515/07 11 was declared to have completed his period of probation successfully in the category of Reserve Sub Inspector on 17.12.1995. 5. The learned Government Pleader would, with the help of the counter affidavit, try to contend that after considering the case of the petitioner, the petitioner was overlooked. That is not what Ext.P5 says. Ext.P5 specifically states that the Departmental Promotion Committee could not consider his claim for promotion for the two reasons mentioned. The learned Government Pleader pointed out that because of his unauthorised absence for the said period, no confidential records could be drawn up. I am unable to countenance that contention. When a person is on leave for long period also confidential records have to be drawn up and the person considered for promotion based on such confidential reports. How such confidential reports have to be drawn up is to be considered and decided by the respondents themselves, insofar as the petitioner has no role in preparing his confidential reports. Therefore, I am of opinion that both reasons stated in Ext.P5 for non-consideration of the W.P.(C)No.12515/07 12 petitioner's case for promotion are unsustainable. 6. In the above circumstances, Exts.P5 and P10 are quashed. The writ petition is disposed of with the following directions: The first respondent shall pass fresh orders regularising the period of absence of the petitioner from 2.2.2002 to 4.7.2003 as eligible leave to the extent leave is available to the petitioner on credit and the balance period as leave without allowances. A review DPC shall be convened for the purpose of considering the claim of the petitioner for promotion for all periods after 17.12.1995 and the petitioner shall be given all eligible promotions to which he was entitled to as per the recommendations of the Departmental Promotion Committee. The above exercise shall be taken up and completed and orders passed regarding both the aspects mentioned above, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE The date “2.2.2002”, wherever it occurs in the judgment dated 10/03/2011 in W.P.C.NO.(C) 12515/2007 is corrected and substitued as “02.02.2000” as per order dated 08/04/2011 in I.A.6404/2011. Sd/- Registrar (Judicial) acd