IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 OP.No. 22518 of 2002(E) --------------------------------- PETITIONER(S): --------------------- O.J.VARKEY, HC U-645, DISTRICT CRIME RECORDS BUREAU, IDUKKI. BY ADV. MR..S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. INSPECTOR GENERAL OF POLICE, SOUTH ZONE, THIRUVANANTHAPURAM. 4. DEPUTY INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM. 5. SUPERINTENDENT OF POLICE, IUDKKI. R1 TO R5 BY GOVERNMENT PLEADER MR.SHYSON P.MANGUZHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 22518 of 2002(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMO OF CHARGES NO.97/PR/4/97-KIP (H1-27/PR/97 ID) DATED 14/03/1997 OF THE SUPERINTENDENT OF POLICE IDUKKI ADDRESSED TO THE PETITIONER. EXT.P2: COPY OF THE EXPLANATION TO EXT.P1 SUBMITTED BY THE PETITIONER DATED 24/09/1997. EXT.P3: COPY OF THE ORDER NO.H1-27/P.R/97-ID (D.D. NO.66/98-ID) DATED 04/03/1998 OF THE SUPERINTENDENT OF POLICE IDUKKI. EXT.P3(a): COPY OF THE PUNISHMENT ROLL MINUTES APPENDED TO EXT.P3. EXT.P4: COPY OF THE ORDR NO.A2-88/APPEAL/98 ER DATED 05/11/1998 THE DEPUTY INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE. EXT.P5: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER NO.B1-21043/99 SZ DATED 25/11/1999 OF THE INSPECTOR GENERAL OF POLICE, SOUTH ZONE. EXT.P7: COPY OF THE REVIEW PETITION DATED 15/11/2000 SUBMITTED BY THE PETITIONER BEFORE GOVERNMENT. EXT.P8: COPY OF THE G.O.(RT)NO.3588/2001/HOME DATED 12/10/2001. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ HARUN-UL-RASHID,J. --------------------------- O.P.NO.22518 OF 2002 ---------------------------- DATED THIS THE 17TH DAY OF FEBRUARY,2009 JUDGMENT Petitioner is a Police Constable attached to the Peermade Police Station. The sum and substance of the allegation is that while working as Police Constable attached to the Permade Police Station from 11/6/1993, the petitioner developed intimacy with one Rosamma, wife of Sunny, Kaniyarancode Puthen House, Azhutha kara, Peermade Village and got transferred the ownership of 8.25 cents of land and building belonging to Sunny and family in the name of the petitioner's wife and thus committed grave misconduct and dereliction of duty. The Circle Inspector of Police, Kattappana was authorised to conduct an oral enquiry into the allegations levelled against the petitioner. Ext.P1 is the memo of charges. The main allegation is that he had committed grave misconduct and dereliction of duty. Ext.P2 is the explanation submitted by the petitioner denying the allegations. The Enquiry -2- O.P.No.22518/2002 Officer found that dereliction of duty and misconduct have been proved. The Superintendent of Police, Idukki passed an order imposing punishment of barring of next two increments with cumulative effect. Ext.P3 is the order passed by the disciplinary authority. 2. Petitioner challenges Ext.P3 order in appeal. The appeal was rejected by the Deputy Inspector General of Police, Erakulam Range. Ext.P4 is the appellate order. On a reading of the appellate order it is clear that the order does not reflect the consideration of the matter on merits. The Appellate Authority did not discuss the merits of the case. What are the charges, what is the evidence adduced during enquiry, whether those materials are enough to conclude the guilt of the person and several other issues, which are expected to be considered by the Appellate Authority, have not been considered at all. 3. In this connection, the learned counsel for the petitioner drew my attention to Rule 35 of the Kerala Police Departmental -3- O.P.No.22518/2002 Inquiries, Punishment and Appeal Rules, 1958. In Rule 35(1) it is stipulated that in an appeal filed against the order imposing any penalty specified in Rule 15 the Appellate Authority shall consider: (a) whether the facts on which the order was based have been established, (b) whether the facts established afford sufficient ground for taking action and (c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such order as it thinks proper. 4. Ext.P5 order does not reflect the consideration of the facts covered by Clauses a, b and c of Rule 35(1). The Police Officer stated that he has examined the relevant documents and that no grounds are made out to reconsider the punishment imposed. Therefore the appeal fails. This is the consideration and conclusion arrived at by the Appellate Authority. The Appellate Authority, who is the higher Rank Officer in the Police Department, is not expected to pass such orders. Being an -4- O.P.No.22518/2002 Appellate Authority he should bear in mind the duties and responsibilities cast on him to consider a case on hand in accordance with law. In this case no facts on which the order was passed have been discussed or the said facts have been found to be established. There is no further finding that the facts established afford sufficient grounds for taking action. So long as there was no consideration of the questions on merits, there is no question of entering a finding regarding the facts established afford sufficient ground for taking action. Clause (a) is not discussed or considered at all. The question of consideration of Clause (b) does not arise. Clauses (a) and (b) are not followed, since there was no consideration at all regarding the facts and the evidence leading to the guilt of the incumbent. The question as to whether the penalty imposed is excessive or inadequate also does not arise. It is very clear that Clauses a, b and c are not followed by the Appellate Authority while passing Ext.P4 order. 5. The Reviewing Authority passed Ext.P8 order rejecting -5- O.P.No.22518/2002 the review petition. In fact a review petition was filed against Ext.P4 Appellate Order. In the facts and circumstances, the duty of the reviewing authority is to consider the matter on merits and enter a finding as to whether the Appellate Authority did consider the matter on merits and instead of such appreciation the Reviewing Authority confirmed the order passed by the Appellate Authority, by which the same mistake was repeated. Therefore, the order of the Appellate Authority as well as the Reviewing Authority (Ext.P4 and P8) are unsustainable in law and they are accordingly quashed. This Court is not expected to go into the merits of the case and pass orders either confirming the penalty imposed or to enter a reverse finding that the charges are not proved. It is for the statutory authority to look into the question under the statutory provisions. The 4th respondent is directed to re-consider the appeal on merits, after affording an opportunity of being heard to the petitioner. The petitioner is at liberty to urge all the contentions raised and to be raised before -6- O.P.No.22518/2002 the Appellate Authority and the Appellate Authority shall consider and dispose of the appeal within a period of four months from the date of receipt of a copy of this judgment, since it is a long pending matter. In the result, the original petition is allowed. Sd/- HARUN-UL-RASHID, Judge. kcv.