IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 OP.No. 34556 of 2000(L) ----------------------- PETITIONER(S): --------------- K.F. AUGUSTIN, ASST. SUB INSPECTOR OF POLICE, CHINGAVANAM POLICE STATION, KOTTAYAM DIST. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.RESMI G. NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, 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, ALAPPUZHA. GOVERNMENT PLEADER SRI. M.R. SABU FOR R1TO5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ALONG WITH OP NO. 6932 OF 2001 ON 07/11/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 34556/2000. --------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO OF CHARGES. EXT.P2 EXPLANATION SUBMITTED BY PETITIONER. EXT.P3 WRITTEN STATEMENT OF DEFENCE. EXT.P4 SHOW CAUSE NOTICE DT. 28-3-1993 EXT.P4(a) COPY OF PUNISHMENT ROLL MINUTES. EXT.P5 REPLY SUBMITTED BEFORE R5. EXT.P6 ORDER DT. 11-5-1993. EXT.P7 APPEAL DT. 1-7-1993. EXT.P8 ORDER DT. 26-11-1993. EXT.P9 REVISION PETITION DT. 22-12-1993. EXT.P10 ORDER DT. 22-2-1995. EXT.P11 PETITION DT. 29-3-1995. EXT.P12 JUDGMENT IN O.P.NO. 2765/1996. EXT.P13 ORDER DT. 15-7-1996. EXT.P14 ORDER DT. 7-7-1997. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 34556/2000 & 6932/2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th November, 2008. J U D G M E N T Since issues in these two original petitions are connected, they are being heard together and disposed of by this common judgment. 2. The petitioner is presently an Assistant Sub Inspector of Police. While he was working as Head Constable, disciplinary proceedings were initiated against him for certain acts of misconduct, which resulted in Ext. P6 order of punishment of reduction in rank, as Police Constable for two years. Although petitioner's appeal and revision were rejected by Exts.P 8 and P10 orders, in review before the Government, by Ext. P13 order, the Government reduced the punishment to one of “black mark”. Pursuant thereto, Ext. P14 order was passed directing that the period of suspension of the petitioner would be considered as duty for the purpose of payment of pension and gratuity and he would be eligible for 80% of the salary during suspension period. The petitioner is challenging Exts.P 13 and P14 orders in O.P.No. 34556/2000. 3. Subsequently, the petitioner was considered for inclusion in the select list for promotion. However, on account of the “black mark” consequent to the disciplinary proceedings, he was superseded for promotion, in respect of which Ext. P2 order has been issued on a representation filed by the petitioner against the supersession. The petitioner is challenging Ext. P2 order in O.P.No. 6932/2001. 4. The petitioner's contention is that as is evident from Ext. P4 (a) minutes of punishment roll, it is evident that the enquiry officer found the petitioner not guilty of the misconduct alleged against him. According to the petitioner, after having not found guilty of the misconduct as alleged in the charge memo, the petitioner could not have been imposed with any punishment. Since the petitioner is not guilty of any misconduct, the petitioner is entitled to full salary and O.P.Nos.34556/00 & 6932/01. -: 2 :- benefits for the period of suspension and it cannot be limited to 80%. As far as supersession is concerned, the petitioner would contend that in so far as he is not guilty of any misconduct, he could not have been superseded since the only ground on which he was superseded was the imposition of punishment of “black mark” on the petitioner. 5. Counter affidavits have been filed in both cases. It is contended in the counter affidavit that from the evidence on record, it is clear that the petitioner had tarnished the image of the police before the public. Therefore, the imposition of black mark on him is perfectly correct, is the submission made. Once the imposition of black mark is held to be valid, his supersession for the purpose of promotion is also correct is the contention raised by the learned Government Pleader. 6. I have considered the rival contentions in detail. 7. The charges alleged against the petitioner was that while working as Head Constable attached to Punnapra Police Station, the petitioner, at about 9.30 p.m. on 16-2-1992, went to the house of one Lisy, a widow residing at Nedumparambu House in Ward No. 4 of Punnapra Panchayat, in an intoxicated condition, beat her and destroyed the articles in that house and uttered obscene words, which is stated to be the conduct on the part of the petitioner unbecoming of a member of the police force. From Ext. P4(a), which is the Punishment Roll Minutes, it is seen that the said Smt. Lisy was examined as a witness, namely, PW1. She had deposed before the enquiry officer that the allegations that the petitioner went to her house in an intoxicated condition, beat her, destroyed her dress and domestic articles in the house and uttered obscene words are not correct. She further deposed that some other persons of the locality assaulted the petitioner and it is one of those persons who caused O.P.Nos.34556/00 & 6932/01. -: 3 :- destruction of the household articles of Smt. Lisy. The other witnesses who have been examined also did not support the allegations in the charge sheet. In fact, in the concluding portion of Ext. P4(a) P R minutes, what has been found by the enquiry officer is that the allegations against the petitioner in the charge memo had not been proved. What has been found is that in the medical examination pursuant to the assault on the petitioner in respect of which a criminal case was registered, the concerned medical officer had noted that while the petitioner was admitted, he was smelling of alcohol. A further observation made therein is that the persons of the locality assaulted the petitioner because they did not like the petitioner going to the house of Smt. Lisy. Smt. Lisy is a widow. The petitioner claims that Smt. Lisy is the widow of one of his friends and that members of both houses used to visit each other and the petitioner was only visiting the said Lisy in furtherance of his social obligations. From Ext. P4(a), I am unable to find that the allegations in the memo of charges have been proved to any extent. On the other hand, the finding therein is that the petitioner had not committed the alleged misconduct. The only finding is that at the relevant time, he was smelling of alcohol. There is no allegation that at the relevant time, the petitioner was on duty. Consumption of alcohol while not on duty is not a misconduct also. Therefore, going by Ext. P4(a), I am unable to find that the petitioner was guilty of any misconduct whatsoever. When Smt. Lisy herself submitted that the acts constituting the allegations against the petitioner have not been committed in her house, then there cannot be any conclusion of any misconduct whatsoever against the petitioner. As such, the petitioner cannot be held guilty of any any misconduct as has been done by the respondents. Consequently, imposition of any punishment including O.P.Nos.34556/00 & 6932/01. -: 4 :- black mark cannot be sustained. Accordingly, Ext. P13 order whereby the punishment of black mark has been imposed on the petitioner is quashed. It is declared that the petitioner is not liable to be punished for any misconduct as has been done in this case. However, I am not inclined to interfere with Ext. P14, whereby the salary and allowances of the petitioner have been limited to 80% during the period of suspension in so far as under Rule 56A of the K.S.R, the disciplinary authority has powers to do so and in this case, there was some suspicious circumstances which led to the issue of memo of charges. 8. The supersession of the petitioner for the purpose of promotion as Assistant Sub Inspector is wholly based on the punishment of “black mark” imposed on him, as is evident from Ext. P2 in O.P.No. 6932/2001, which has been quashed by me. Therefore the supersession of the petitioner also cannot be sustained. Accordingly, Ext. P2 also is quashed. It is held that supersession of the petitioner for the purpose of promotion as A.S.I on the basis of black mark is unsustainable. 9. The petitioner has been subsequently promoted as A.S.I. However, once the supersession is set aside, his date of promotion is to be revised by including him in the select list for the previous periods, if he is otherwise eligible. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The original petitions are allowed as above. Sd/- S. Siri Jagan, Judge. Tds/