IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 WP(C).No. 32178 of 2007(E) --------------------------------------- PETITIONER: ------------------- MUHAMMED ABDUL KHADER, AGED 53 YEARS, HEAD CONSTABLE 6971, CITY CONTROL ROOM, THIRUVANANTHAPURAM. BY ADV. MR.T.G.RAJENDRAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. DEPUTY INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM RANGE, THIRUVANANTHAPURAM. 4. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY. 5. CIRCLE INSPECTOR OF POLICE, THAMPANOOR, THIRUVANANTHAPURAM CITY. R1 TO R5 BY GOVT. PLEADER SMT. SMITHA SUKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32178/2007-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CHARGE MEMO NO. 7/GL/05/C.I.T ALONG WITH THE STATEMENT. EXT.P.2: COPY OF THE ORDER NO. H2/66319/04 TC DT. 27/12/04. EXT.P.3: COPY OF THE DEFENCE STATEMENT. EXT.P.4: SHOW CAUSE NOTICE NO. H-2/66319/04 TC DT. 11/01/2006. EXT.P.5: REPLY DTD. 24/01/2006. EXT.P.6: ORDER NO. H2/66319/04 TC DTD. 26/04/2006 COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. EXT.P.7: APPEAL DTD. 17/05/2006 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.8: ORDER NO. A2 (B) 3303/06 TR DTD. 12/09/06 DEPUTY INSPECTOR GENERAL OF POLICE. EXT.P.9: ORDER NO. G.O.(RT).1995/2007 DTD. 26/07/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 32178 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd May, 2009. J U D G M E N T The petitioner is a Head Constable in the Armed Reserve Camp, Thiruvananthapuram. He was served with Ext. P1 memo of charges holding serious acts of misconduct calling upon him to submit his explanation. Although, he submitted Ext. P3 explanation denying the charges, the disciplinary authority found it fit to proceed further and an enquiry was ordered. In the enquiry, the enquiry officer found the petitioner guilty of the charges levelled against him. By Ext. P4 show cause notice, the petitioner was directed to show cause as to why the punishment of barring of three increments with cumulative effect should not be imposed on him. The petitioner filed Ext.P5 representation against the same disputing the findings in the enquiry also. By Ext. P6, the disciplinary authority imposed on the petitioner the punishment of barring of three increments with cumulative effect. The petitioner filed an appeal before the Deputy Inspector General of Police, who, by Ext. P8 order, rejected the same. The petitioner filed a review before the Government, which also was dismissed by Ext.P9. The petitioner is challenging Exts.P7, P8 and P9 orders. 2. A counter affidavit has been filed by the 4th respondent supporting the impugned orders. 3. I have considered the rival contentions in detail. 4. The primary contention raised by the petitioner is that the petitioner has not been given an opportunity to represent against the findings in the enquiry, which amounts to serious violation of the principles of natural justice as held by the Supreme Court in Managing Director, ECIL v. B. Karunakar, AIR 1994 SC 1074. According to the petitioner, the opportunity to show cause against the findings in the enquiry is a very valuable right of the petitioner, which has been denied in this case. He points out that under the W.P.C. No. 32178/07 -: 2 :- cover of Ext. P4 show cause notice, a copy of the P.R. Minutes was forwarded to him. In Ext. P4 itself, the disciplinary authority concurred with the findings in the enquiry and he has been directed only to show cause against the proposed penalty. According to him, although in Ext. P5 he had represented against the validity of the findings, that also has not been considered by the disciplinary authority while passing Ext. P6 punishment order. 5. In answer to the same, the learned Government Pleader submits that although it is not specifically shown in Ext. P4, Ext. P4 was a composite show cause notice calling for representation against the findings in the enquiry as also the proposed punishment. It is further submitted by the learned Government Pleader that Ext. P6 order has been passed taking into account Ext. P5 representation of the petitioner also. The learned Government Pleader further points out that in Ext. P9 order of the Government, the validity of the findings also has been specifically gone into by the Government and Government found that the charges against the petitioner has been properly proved. 6. On a consideration of the rival contentions, I find merit in the particular contention of the petitioner. Ext. P4 is the show cause notice by which the petitioner has been asked to show cause. From the same, I find that the disciplinary authority had specifically stated in Ext. P4 itself that on a consideration of the P.R. Minutes and the accompanying documents, the charges against the petitioner have been proved and the disciplinary authority agrees with the findings of the enquiry officer. In fact, it is only after stating that the disciplinary authority agrees with the findings of the enquiry officer, the petitioner has been directed to show cause against the proposed punishment. In Ext. P5, the petitioner had specifically referred to the evidence and W.P.C. No. 32178/07 -: 3 :- contended that the findings are against the evidence adduced by him. In Ext. P6 punishment order also, the disciplinary authority has not separately considered the validity of the findings of the enquiry officer. In fact, there also it was specifically stated that it is after agreeing with the findings that the show cause notice regarding the punishment has been issued to the petitioner. In Rule 6(11) of the Kerala Police Departmental Inquiries Punishment and Appeal Rules, it is specifically stipulated that the authority competent to dispose of the enquiry proceedings shall, on an examination of the proceedings, record his findings on the several charges inquired into and record a further finding in cases where no charges have been made out. Neither in Ext. P4 nor in Ext. P6 is there a specific finding by the disciplinary authority regarding the guilt of the petitioner on the basis of the enquiry. The fact that the Government had in the review petition considered the matter on merits cannot cure the basic defect in the proceedings . It is settled law that a delinquent employee is entitled to an opportunity to represent against the findings of the enquiry officer, if the enquiry is conducted by an officer other than the disciplinary authority, which is the situation in this case. That being so, I am satisfied that there is a serious procedural error in the disciplinary proceedings against the petitioner. I am of opinion that before the punishment was imposed, the petitioner was entitled to an opportunity to represent against the findings in the enquiry. The least the disciplinary authority ought to have done is to consider Ext. P5 representation in respect of the findings of the enquiry officer and enter a specific finding regarding the contentions raised by the petitioner against the findings in the enquiry. Accordingly, Exts.P6, P8 and P9 are quashed. The matter is remanded to the 4th respondent for fresh consideration in accordance W.P.C. No. 32178/07 -: 4 :- with the above findings. The 4th respondent shall afford the petitioner an opportunity of hearing regarding the validity of the findings in the enquiry. Thereafter, the 4th respondent shall enter specific findings on the guilt of the petitioner after considering the representation of the petitioner in respect of the said findings. Only if the 4th respondent still finds the petitioner guilty, he shall proceed to impose punishment after complying with the procedure prescribed. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/