IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 6289 of 2009(E) ----------------------------- PETITIONER: ----------------- V. DEVARAJ DETECTIVE INSPECTOR CRIME BRANCH CID CHALAPURAM KOZHIKODE BY ADV. MR.A.K.ALEX MR.M.T.BALAN RESPONDENTS: --------------------- 1. THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 2. THE CONVENOR AND DIRECTOR GENERAL OF POLICE DEPARTMENTAL PROMOTION COMMITTEE (LOWER) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. R1 BY SMT. ANU SIVARAMAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 WP(C).No. 6289 of 2009(E) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 : COPY OF ORDER NO.A2/23094/2005/NZ DATED 6.10.2005 ISSUED BY THE INSPECTOR GENERAL OF POLICE, NORTH ZONE, KOZHIKODE. EXT.P2 : COPY OF THE MEMO OF CHARGES DATED 24.2.2006 FRAMED BY DEPTY SUPERINTENDENT OF POLICE (ADMN), KOZHIKODE RURAL AGAINST PETITIONER. EXT.P3 : COPY OF THE ORAL EVIDENCE GIVEN BY PWs 1 TO 3 IN CRIME NO.23/2004 OF SULTHAN BATHERY POLICE STATION. EXT.P4 : COPY OF THE REPORT SENT BY CIRCLE INSPECTOR, SASI TO LEARNED ADVOCATE GENERAL, KERALA HIGH COURT EXT.P5 : COPY OF THE F.I.R. IN BRIEF IN CONNECTION WITH CRIME NO.23/2004 OF SULTHAN BATHERY POLICE STATION SENT BY CIRCLE INSPECTOR OF POLICE, SRI.C. SASI DATED 11.4.2004 EXT.P6 : COPY OF THE FINDINGS IN ENQUIRY WITH THE CHARGES IN BRIEF, FACTS AND EVIDENCE AND EXPLANATION SUBMITTED BY PETITIONER. EXT.P7 : COPY OF THE SHOW CAUSE NOTICE DATED 14.1.2008 SENT FROM THE OFFICE OF THE INSPECTOR GENERAL OF POLICE, KANNUR RANGE. EXT.P8 : COPY OF THE EXPLANATION DATED 15.3.2008 SUBMITTED BY PETITIONER TO THE INSPECTOR GENERAL OF POLCE, KANNUR RANGE. EXT.P9 : COPY OF THE ORDER PASSED BY THE INSPECTOR GENERAL OF POLICE, KANNUR RANGE ON 31.5.2008 EXT.P10 : COPY OF THE APPEAL DATED 15.1.2009 FILED BEFORE THE ADDITIONAL DIRECTOR GENERAL OF POLICE, (NZ), KOZHIKODE. EXT.P11 : COPY OF PROCEEDINGS OF THE ADDITIONAL DIRECTOR GENERAL OF POLICE (NZ), KOZHIKODE DATED 14.7.2008. EXT.P12 : COPY OF THE MEMO OF CHARGES DATED 10.9.2008 ISSUED BY THE ASSISTANT COMMISSIONER OF POLICE, DCRB, KOZHIKODE CITY. EXT.P13 : COPY OF THE EXPLANATION DATED 6.11.2008 SUBMITTED BY PETITIONER TO THE ASSISTANT COMMISSIONER OF POLICE, DCRB, KOZHIKODE CITY. 3 WP(C).No. 6289 of 2009(E) EXT.P14 : COPY OF THE RELEVANT PAGES OF THE INSPECTION REPORT DATED 12.12.2003 OF PETITIONER IN CRIMES OF AMBALAVAYAL POLICE. EXT.P15 : COPY OF THE RELEVANT PORTION OF THE CIRCLE INSPECTOR'S CRIME REGISTER IN CONNECTION WITH CRIME NOS. 100/02, 88/03, 116/03, 53/04 AND 150/03 EXT.P16 : COPY OF THE REPRESENTATION DATED 10.2.2009 SENT BY PETITIONER TO THE 2ND RESPONDENT DPC. EXT.P17 : COPY OF THE REPRESENTATION DATED 14.2.2009 TO THE CHAIRMAN AND INSPECTOR GENERAL OF POLCE, (ADMN) SERVICE GRIEVANCE CELL, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF ORDER NO.A2/2340/09 DATED 12.10.09 // TRUE COPY // PA TO JUDGE “C.R” C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 6289 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2010 J U D G M E N T The petitioner is working as a Detective Inspector in the Crime Branch CID, Kozhikode. While the petitioner was working as Circle Inspector of Police, Sulthan Bathery disciplinary action was initiated against him as per Ext.P2 Memo of Charges. During its pendency, the DPC (Departmental Promotion Committee) (Higher) met on 19.2.2006 for preparing the select list of Circle Inspectors fit for promotion as Deputy Superintendent of Police, for the year 2005 for the anticipated vacancies in the year 2006. Admittedly, it is the pendency of the said disciplinary proceedings initiated for imposition of a major penalty as per Ext.P2 that resulted in the non-inclusion of the petitioner in the said select list for the year 2005. 2. Admittedly, said disciplinary action initiated as per Ext.P2 culminated in imposition of barring of one increment for two years with cumulative effect. Ext.P9 is the said order of the disciplinary authority. Though an appeal was preferred WPC.6289 of 2009 : 2 : against Ext.P9 it was rejected as per Ext.R1(a) dated 12.10.2009 on the ground of delay. The contention of the petitioner is that as per 15(1)(g) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, hereinafter referred for brevity 'KPDIP & A Rules' only, the said penalty imposed on the petitioner is only a minor penalty. But in the counter affidavit filed on behalf of the respondents, the stand taken by them is that the penalty imposed on the petitioner viz., barring of one increment for two years with cumulative effect is a major penalty. It is based on such assumption that the petitioner's case was not reviewed though an Ad-hoc DPC(Higher) considered his claim for inclusion in the said list for the year 2005. The said ad-hoc DPC was met on 5.5.09 and as is obvious from Ext.R1(a) it was issued subsequent to the said ad-hoc DPC. The respondents must have reached into such a conclusion that the penalty imposed on the petitioner is a major penalty presumably on account of the fact that withholding of increments with cumulative effect was brought under major penalties as per amendment to Rule 11(1) of the Kerala Civil Services(Classification, Control and Appeal)Rules, 1960 by inserting item(vA) by G.O(P)No. 28/2002/P&ARD dated 16.5.2002 published as per SRO WPC.6289 of 2009 : 3 : No.409/2002 in Kerala Gazette Extra-ordinary No. 72 dated 27.5.2002. The relevant provision in this case viz., Rule 15(1) (g) of the KPDIP&A Rules, is worthy to be extracted in the context of the said rival contentions and the same reads thus:- “15. Penalties:-(1) The following penalties may, for good and sufficient reasons and as provided under these rules, be imposed upon members of the Services, namely:- a.... b.... g. Withholding of increments or promotion including stoppage at an efficiency bar.” 3. To ascertain the nature of the said penalty KPDIP & A Rules especially Rule 17, have to be looked into. The major penalties are classified under Rule 15(1)(i), (j), (k),(l) and (m). Obviously, still 15(1)(g) is not brought under that classification and hence withholding of increments with or without any hedge under the KPDIP & A Rules can still be construed only as a minor penalty. I am fortified in my view by a Division Bench of this Court reported in State of Kerala Vs. T.M. Ranganathan (1997(2)KLJ 239). “.......This reduced the last pay drawn by him and it had also marginally affected his pension. In that view of the matter the learned Single Judge held that the impugned order of penalty had a cumulative effect. But we are unable to accept this view for the reason that in the Kerala WPC.6289 of 2009 : 4 : Police Departmental Inquiries Punishment and Appeal Rules, it is specifically stated that the withholding of increments or promotion is a minor penalty. The major penalties are classified under Rule 15(i), (j), (i)(1) and (m). They are the reduction to a lower rank in the seniority list or to the lower post or time scale, compulsory retirement, removal from service of the State Government or dismissal from service of the State Government. As the penalty imposed on the respondent does not come under any of this category and it comes only under rule15(1)g. We can only hold that it is a minor penalty. Therefore a full-fledged enquiry is not necessary and an oral enquiry will satisfy the rules provided under the Kerala Police Departmental Inquiries, Punishment and Appeal Rules 1958.” In the circumstances, I am inclined to accept the contention of the petitioner that the penalty imposed on the petitioner as per Ext.P9 is only a minor penalty. Now the question is with regard to the entitlement of the petitioner to the reliefs sought for in the Writ Petition. Admittedly, no steps have so far been taken by the respondents to convene review DPC to consider the case of the petitioner for inclusion in the select list for the year 2005, after taking the penalty WPC.6289 of 2009 : 5 : imposed on him as per Ext.P9 as a minor penalty. Such an action should have been taken especially in view of the statement in paragraph 2 of the counter affidavit. In paragraph 2, it has been stated that the preparation of select list was conditional as regards the petitioner and it was subject to the outcome of the disciplinary action initiated against him as per Ext.P2. A scanning of the contentions in the counter affidavit would reveal that it is only on the wrong assumption on the part of the respondents that the penalty imposed on the petitioner as per Ext.P9 is a major penalty that no review DPC was convened to consider the petitioner's claim for inclusion in the aforesaid select list. In view of my finding that the punishment imposed on the petitioner as per Ext.P9 is only a minor penalty the respondents are bound to convene a review DPC to consider the claim of the petitioner for inclusion in the select list of Circle Inspector fit for promotion as Dy.SPs for the year 2005. In the said circumstances, there will be a direction to the respondents to take appropriate steps for convening a review DPC for considering the claim of the petitioner for inclusion in the select list of Circle Inspectors, in the year 2005, for promotion to the post of DySP. The respondents shall convene WPC.6289 of 2009 : 6 : such a review DPC to consider the claim of the petitioner as aforesaid, expeditiously. The first respondent shall endeavour to convene such a review DPC in terms of the above direction on or before 30.3.2010. This Writ Petition is accordingly disposed of. (C.T. RAVIKUMAR, JUDGE) jma