IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 OP.No. 36842 of 2001(J) ----------------------- PETITIONER(S): --------------- S.ABDUL RASHEED, DEPUTY SUPERINTENDENT OF POLICE CRIME BRANCH C.I.D., KOTTAYAM BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SMT.RESMI G. NAIR RESPONDENT(S): --------------- STATE OF KERALA REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 36842 of 2001 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE MEMO OF CHARGE NO.200/CB/O/P2 DATED 26.2.99 WITH THE STATEMENT OF ALLEGATIONS APPENDED EXT.P2- TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, CRIME BRANCH CID, KOLLAM DATED 17.5.99 EXT.P3- TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 16.8.99 EXT.P4- TRUE COPY OF THE SHOW CAUSE NOTICE NO.22821/H1/99/HOME DATED 7.7.00 EXT.P4(a)- TRUE COPY OF THE APPENDED PUNISHMENT ROLL MINUTES EXT.P5- TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 28.8.00 EXT.P6- TRUE COPY OF THE GOVERNMENT LETTER NO.22821/H1/99/HOME DATED 29.1.01 EXT.P7- TRUE COPY OF THE GOVERNMENT LETTER NO.22821/H1/HOME DATED 15.2.01 EXT.P8- TRUE COPY OF THE WRITTEN SUBMISSION EXT.P9- TRUE COPY OF THE JUDGMENT IN O.P.1950/2000 OF THIS HONOURABLE COURT EXT.P10- TRUE COPY OF THE WRITTEN SUBMISSION DATED 17.2.01 EXT.P11- TRUE COPY OF THE G.O.(Rt).3127/2001/HOME DATED 13.9.01 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- O.P.36842/2001 -------------------- Dated this the 27th day of May, 2010 JUDGMENT While the petitioner was working as Deputy Superintendent of Police, Ext.P1 memo of charges was issued alleging that in 1994, while working as Circle Inspector, in the course of investigation in Crime No.231/94 of Thiruvalla Police Station, he had accepted illegal gratification. On receipt of the memo of charges, Ext.P2 explanation was submitted by the petitioner. Explanation was held to be unsatisfactory and an oral enquiry was ordered. This resulted in Ext.P4(a) report of the Enquiry Officer where the charges were held not proved. 2. However the 1st respondent disagreed with the findings of the Enquiry Officer and issued Ext.P4 show cause notice, proposing to impose the punishment of barring two increments with cumulative effect. On receipt of the show cause notice, petitioner submitted Ext.P5 reply. Thereafter, he was afforded an opportunity of hearing when the petitioner submitted Ext.P8 written statement. Finally he O.P.36842/01 2 was issued Ext.P11, confirming the provisional decision taken by Ext.P4 to withhold two increments with cumulative effect. It is challenging Ext.P11 the writ petition is filed. 3. Although several contentions are raised in the writ petition, when the matter was taken up for hearing, learned counsel for the petitioner brought to my notice the judgment rendered by this Court in O.P.24391/2002 in which the disciplinary proceedings initiated on this very set of facts against the person who was then working as Sub Inspector of Police was challenged. This Court in the aforesaid judgment, set aside the order of punishment on the ground that the disciplinary authority disagreed with the findings of the Enquiry Officer without putting the delinquent on notice and in violation of principles of natural justice. It is contended that the facts of this case are identical and therefore, Ext.P11 is liable to be set aside on this ground itself. 4. Although the disciplinary authority is not bound by the findings of the Enquiry Officer, once the finding is that the petitioner is not guilty is entered into by the Enquiry Officer and if the disciplinary authority proposed to disagree with that finding, O.P.36842/01 3 such disagreement is possible only after issuing notice to the delinquent and only after giving him an opportunity of hearing, if he has asked for such an opportunity. In this case, relevant portion of Ext.P4 show cause notice reads as under. “In view of the above facts Government disagree with the findings of the Enquiry Officer and hold that the charges levelled against you are proved. Since the charges levelled against you are very grave in nature, Government have provisionally decided to impose you the punishment of withholding of your next two increments with cumulative effect, and to dispose of the PR minutes against you accordingly.” 5. The aforesaid paragraph contained in Ext.P4 shows that the Government disagreed with the findings of the Enquiry Officer without notice to the petitioner and by this notice, he was called upon to show cause only against imposing the punishment. This clearly is in violation of principles of natural justice and therefore, cannot be upheld. Resultantly final order passed in the proceedings viz., Ext.P11, has to be interfered with. O.P.36842/01 4 6. Accordingly Ext.P11 will stand set aside. Petitioner's monetary benefits which are withheld consequent on Ext.P11, shall be disbursed. However, it is made clear that this judgment will not stand in the way of the respondents from initiating proceedings against the petitioner in accordance with law and if they are so advised. Original Petition is allowed as above. ANTONY DOMINIC, Judge mrcs