IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 28329 of 2003(V) -------------------------- PETITIONER(S): --------------- M.P.SURENDRAN, DETECTIVE INSPECTOR, CRIME BRANCH C.I.D., SIG-2, ERNAKULAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE RESPONDENT(S): --------------- STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVT. PLEADER SHRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 28329/03. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE MEMO OF CHARGES DTD.8.7.96. P2. COPY OF THE REPLY TO Ext.P1. P3. COPY OF THE WRITTEN STATEMENT DTD.1.2.99. P4. COPY OF THE SHOW CAUSE NOTICE DTD.31.7.99. P4(A) COPY OF THE REPORT OF THE VIGILANCE TRIBUNAL, THIRUVANANTHAPURAM. P5. COPY OF THE REPLY DTD.22.10.99. P6. COPY OF THE GOVT. ORDER DTD.10.9.2002. P7. COPY OF THE REVIEW PETITION. P8. COPY OF THE GOVT. ORDER DTD.25.4.03. P9. COPY OF THE JUDGMENT IN O.P.No. 3085/03 OF THIS COURT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 28329 of 2003 ================== Dated this the 22nd day of March, 2011 J U D G M E N T While working as a Deputy Superintendent of Police under the Government of Kerala, disciplinary proceedings were initiated against the petitioner. In the enquiry conducted by the Vigilance Tribunal, Thiruvananthapuram, the petitioner was found guilty in Ext.P4(a) report. The Government accepted the findings and thereafter provisionally decided to remove the petitioner from service, pursuant to which, Ext.P4 show cause notice was issued, to which, the petitioner submitted Ext.P5 reply, in which, one of the specific contentions of the petitioner was that before accepting the findings of the Vigilance Tribunal, the Government ought to have given the petitioner an opportunity to show cause against the enquiry proceedings and the findings in the enquiry report. But, without considering the same, by Ext.P6, the Government imposed on the petitioner the punishment of reduction to a lower rank in the seniority list and placed the petitioner as the junior-most among the Circle Inspectors of Police. Ext.P7 review petition was rejected by Ext.P8. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P6 and P8 and w.p.c.28329/03 2 quash them. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent to give the petitioner all service benefits as if Exts.P6 and P8 were never issued.” 2. The petitioner points out that in exactly identical circumstances, this Court has, by Ext.P9 judgment, quashed similar orders directing the Government to treat the show cause notice for punishment as a composite one to show-cause against the enquiry report and the proposed punishment. The petitioner seeks the same now. 3. I have heard the learned Government Pleader also. He does not dispute the fact that the facts of the case in Ext.P9 judgment are identical to the facts of this case. But he points out that simply because the petitioner was not given an opportunity to show cause against the enquiry report, that does not ipso facto vitiate the enquiry proceedings unless the petitioner pleads and proves prejudice on account of non-furnishing of the report and opportunity to show cause against the same. The learned Government Pleader cites Supreme Court decisions in support of his contentions. 4. The learned counsel for the petitioner points out that in Ext.P5 reply to the show cause notice, in paragraphs 6 and 7, the petitioner has specifically taken the contention that lack of opportunity to show cause against the report of the Vigilance Tribunal has prejudiced him. In Ext.P5, in paragraphs 6 and 7, the petitioner has w.p.c.28329/03 3 stated thus: “6. Before the Government took a decision to accept the findings of the Vigilance Tribunal and proceed against me I should have been given an opportunity to show cause why the report of the Vigilance Tribunal was not liable to be accepted by Government. Had I been given such an opportunity I would have been in a position to convince Government that the report of the Vigilance Tribunal had only to be rejected. Denial of such an opportunity to me is illegal, against the principles of natural justice and the decisions of the Hon'ble Supreme Court of India reported in 1993(4) SCC 727 and 1991 (1) SCC 588. 7. The present show cause notice is one wherein I have been afforded an opportunity to show cause only against the punishment. This is not sufficient to satisfy the principles of natural justice. I ought to have been afforded a pre-decisional opportunity to show cause against the acceptance of the report of the Vigilance Tribunal.” 5. I am of opinion that apart from the same, if the petitioner was given an opportunity, the petitioner could have brought to the attention of the Government extenuating circumstances warranting a lesser punishment, from the facts revealed in the enquiry report themselves, if there were such circumstances. As such, it cannot be said that the petitioner was not prejudiced because of lack of opportunity to show cause against the enquiry report. Accordingly, following Ext.P9 judgment, this writ petition is disposed of with the following directions: Exts.P6 and P8 orders are quashed. Ext.P4 show cause notice shall be construed as a composite notice to the petitioner directing him to file his representation as to why the findings of the Vigilance Tribunal should not be accepted by the Government and why, if after considering the representation of the petitioner, the Government w.p.c.28329/03 4 accepts the findings, the punishment of reduction to a lower rank should not be imposed on him. The petitioner shall file his representation with regard to both within one month from today. On receipt of the same, the Government shall consider the representation and enter a finding as to whether the Government accepts the findings of the Vigilance Tribunal giving reasons and proceed further in accordance with law. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge