IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 20452 of 2009(B) ------------------------------------------ PETITIONER(S): ------------------------ V.PUSHPAKUMAR, JR.SUPERINTENDENT, SAP TVM, RESIDING AT TC 11/1841 (3), "PUSHPANJALI", Y.M.R. JUNCTION, NANTHANCODE, TRIVANDRUM. BY ADVS.MR.P.VIJAYA BHANU MR.M.REVIKRISHNAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.20452 of 2009-B ------------------------------ Dated this the 24th day of July, 2009. J U D G M E N T Heard Sri.M.Revikrishnan, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioner who was working as Junior Superintendent in the Special Armed Police, Thiruvananthapuram was prosecuted by the Vigilance and Anti-corruption Bureau in five different cases for the offences punishable under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act, 1988 and Sections 201, 409, 477-A and 120B of the Indian Penal Code. By Ext.P1 judgment delivered on 24.6.2009 the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram held the petitioner guilty of the charges. The petitioner was convicted for the offences levelled against her and sentenced to undergo imprisonment. Aggrieved by Ext.P1 judgment of conviction and sentence, the petitioner has filed Crl.A Nos. 1353 of 2009, 1382 of 2009, 1383 of 2009, 1389 of 2009 and 1391 of 2009 in this Court. The said appeals have been admitted and this Court has suspended the execution of the sentence of imprisonment awarded to the petitioner. In the meanwhile, by Ext.P2 order passed on 28.6.2009, the W.P(C) No.20452 of 2009-B 2 Director General of Police dismissed the petitioner from service with effect from 24.6.2009. Ext.P2 is under challenge in this writ petition. The petitioner contends that before Ext.P2 order was passed, the Kerala Public Service Commission was not consulted. She also contends relying on the decision of the Division Bench of this Court in K.S.R.T.C V. Abdul Latheef (2005(3) KLT 955) that removal/dismissal from service is not automatic and before removal/dismissal is effected, the appointing authority is bound to consider whether the misconduct which led to the conviction should entail dismissal/removal from service. The petitioner contends that the Director General of Police has acted mechanically and without application of mind while passing Ext.P2. She also relies on the decision of a learned Single Judge of this Court in Sudheer V. K.S.R.T.C (2004(3) KLT 217) and Ext.P3 Government order. 3. In K.S.R.T.C V. Abdul Latheef (supra) , the Division Bench of this Court was considering Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, as it stood prior to its amendment by G.O.(P) 28/2003/P&ARD dated 18.9.2003. It was held that even if there is conviction in a criminal case it is incumbent on the appointing authority to consider the circumstances as to the misconduct which led to the conviction and to pass appropriate orders. In the case decided by the Division Bench, the employee concerned was dismissed from service after enquiry under the Kerala Civil Services (Classification, W.P(C) No.20452 of 2009-B 3 Control and Appeal) Rules, 1960. The employee had also been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. Though a detailed enquiry was held, a copy of the enquiry report was not furnished to the employee. It was in such circumstances that this Court held that the competent authority has to consider the misconduct which led to the conviction while passing orders. In Sudheer V. K.S.R.T.C (supra) a learned Single Judge of this Court while considering the effect of the amendment to Rule 18 held that consultation with the Kerala Public Service Commission is not necessary. It was held that a Government servant who is proceeded against under the second proviso to Rule 18 for dismissal/removal from service on the ground of misconduct which led to conviction on criminal charge by the criminal court is not entitled to notice or hearing. The learned Single Judge also held that when a Government servant is convicted on a criminal charge by a criminal court and sentenced to imprisonment or fine or with both, the appointing authority shall invoke Rule 18 of the Rules to dismiss/remove him from service. The learned Judge also held that such dismissal or removal does not automatically follow and that the authority concerned has to exercise the power in a fair, just and reasonable manner. 4. In the instant case, the petitioner was prosecuted in five different cases. The charges levelled include misappropriation also. The W.P(C) No.20452 of 2009-B 4 trial court found the petitioner guilty on all counts. The petitioner was accordingly convicted and sentenced to undergo imprisonment. The Director General of Police, the appointing authority on a consideration of the findings and observations of the criminal court in Ext.P1 judgment held that her conduct which led to conviction on criminal charge by the competent criminal court renders her retention in public service undesirable. On the facts borne out by Ext.P1 judgment it cannot be said that the Director General of Police has acted mechanically or that he has not acted in a fair, just and reasonable manner. As held by this Court in Sudheer V. K.S.R.T.C (supra) the Director General of Police was not bound to consult the Kerala Public Service Commission before taking a decision to remove/dismiss the petitioner from service. Nor was the petitioner entitled to notice and hearing. This Court while admitting the appeals filed by the petitioner from Ext.P1 judgment did not find it fit and proper to stay the conviction, but stayed the execution of sentence alone. As regards Ext.P3 Government order, the learned Government Pleader submitted that the amendment to Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 has not been taken note of therein and that the opinion given by the learned Advocate General referred to therein was in respect of a case decided prior to the amendment of Rule 18. The Government have not in Ext.P3 order, adverted to the amendment to Rule 18 or the interpretation placed on the W.P(C) No.20452 of 2009-B 5 amended Rule 18 by this Court in Sudheer V. K.S.R.T.C (supra) . Therefore, in my opinion, the petitioner cannot rely on Ext.P3 to successfully assail Ext.P2. I am therefore not persuaded to agree with the learned counsel for the petitioner that Ext.P2 order passed by the Director General of Police dismissing the petitioner from service is arbitrary or illegal. In the result, I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. Sd/- ab P.N.RAVINDRAN, JUDGE //True Copy// PA TO JUDGE