IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 OP.No. 3395 of 2003(D) ---------------------------- PETITIONER(S): --------------- P.SUKUMARAN, SUB INSPECTOR OF POLICE, MATTANNUR, KANNUR DISTRICT. BY ADV. MR.M.SASINDRAN RESPONDENT(S): -------------------- 1. THE DIRECTOR GENERAL OF POLICE, KERALA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE INSPECTOR GENERAL OF POLICE, NORTH ZONE, KOZHIKODE. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, KANNUR ZONE, KANNUR. 5. THE DEPUTY INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM ZONE, THIRUVANANTHAPURAM. 6. THE SUPERINTENDENT OF POLICE, KANNUR. GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 3395 of 2003 ORDERS ON C.M.P.NO.5995/03, I.A.NOS.9297/03,11562/08,15080/08 & 1955/09 IN O.P.NO.3395 CLOSED. 7.4.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT. P1: COPY OF THE PROCEEDINGS NO.G4-49519/2001 OF THE PROCEEDINGS NO.G4-49519/2001 OF THE DIRECTOR GENERAL OF POLICE DTD 31-10-2001. EXT.P1(a): COPY OF PROCEEDINGS NO.G4-49520/2001 OF THE DIRECTOR GENERAL OF POLICE DTD 31.10.2001. EXT.P1(b): COPY OF PROCEEDINGS NO.G2-49521/2001 OF THE DIRECTOR GENERAL OF POLICE DTD 31.10.2001. EXT.P1(c): COPY OF THE PROCEEDINGS NO.G2-49522/01 OF THE DIRECTOR GENERAL OF POLICE DTD 30.10.2001. EXT.P1(d): COPY OF PROCEEDINGS NO.G4-49523/2001 OF THE DIRECTOR GENERAL OF POLICE DTD 31.10.2001. EXT.P2: COPY OF LIST OF SUPERSEDED CANDIDATES DTD 10-8-2002 PUBLISHED BY THE DIRECTOR GENERAL OF POLICE. EXT.P3: COPY OF REPRESENTATION DTD 26.8.2002 SUBMITTED ] BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P3(a): COPY OF JUDGMENT DATED 4.10.2002 IN O.P.NO.28572 OF 2002. EXT.P4: COPY OF THE ORDER DATED 5.12.2002 ISSUED BY THE FIRST RESPONDENT. EXT.P5: COPY OF THE ORDER DATED A2/4536/03 NZ DTD 18-3-2003. EXT.P6: COPY OF THE ORDER NO.A2(A)6581/2003 KR DTD 18-3-2003 ISSUED BY THE 4TH RESPONDENT. EXT.P7: COPY OF THE COMMUNICATION ISSUED BY THE 6TH RESPONDENT BEARING D.O. NO.387/03 C DTD 22-5-2003. EXT.P8: COPY OF THE ORDER NO.A2(B) 1507/03/TR DTD 28-5-2003. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.3395 OF 2003 ---------------------------------------- Dated this the 7th day of April, 2009 JUDGMENT The petitioner entered service as Sub Inspector of Police on 4.1.1995. Five separate proceedings for disciplinary action were initiated against him which resulted in five separate punishments of barring of increments imposed on the petitioner. Subsequently, in the petitioner's appeal against those orders, Ext.P1 series of orders were passed wherein the punishment was converted into one of censure. Since censure is not a punishment which could be taken into account for the purpose of denying promotion, the petitioner filed Ext.P3 representation before the Departmental Promotion Committee for inclusion in the selection list for the purpose of promotion as Circle Inspector of Police. By Ext.P3(a) judgment, this Court directed consideration of the same. Thereafter, Ext.P4 order was passed, wherein the petitioner's claim was rejected. The petitioner challenged the same before this Court. While that was pending, Exts.P5 to P8 appellate orders, whereby the conversion of punishment of barring of O.P.No.3395/03 2 increments into censure was cancelled and the original punishments were re-imposed. The petitioner is challenging the same. The petitioner contends that the same are without jurisdiction. The petitioner also contends that the same have been issued without notice to the petitioner. 2. The learned Government Pleader submits that under Rule 36 of the Kerala Police Departmental, Enquiries, Punishment and Appeal Rules 1958, there is a power of suo motu review on the authority superior to the authority who passed the original or appellate orders. According to the learned Government Pleader, it is pursuant to that power Exts.P5 to P8 orders have been passed. 3. I have considered the rival contentions in detail. Even assuming that the authority who passed Exts.P5 to P8 orders have jurisdiction, that jurisdiction could not have been exercised without first issuing a show cause notice to the petitioner for such review and hearing the petitioner, which is so stipulated in Rule 36 itself. The learned Government Pleader has not been able to satisfy me that before issuing Exts.P5 to P8 orders, such a notice was issued to the petitioner or that the petitioner was heard in the matter. That being so, Exts.P5 to P8 are clearly unsustainable. Accordingly, they are quashed. I am not O.P.No.3395/03 3 expressing any opinion on the contention of the petitioner that the authorities, who passed Exts.P5 to P8 orders, do not have jurisdiction to pass those orders. That contention is left open to be agitated by the petitioner if and when the appropriate authority decides to pass fresh orders in the matter which they may do if they have jurisdiction and if they decide to taking into account the facts and circumstances of the case. If no such fresh orders are passed within three months from the date of receipt of a copy of this judgment, the petitioner would be entitled to consequential benefits regarding promotion with effect from the date when the same became due to him which was denied to him on the basis of the punishment of barring of increments. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.3395/03 4