M.P. Surendran v. State of Kerala and Director General of Police

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931** **OP.No. 3085 of 2003(P)** **------------------------------** ## **PETITIONER(S):** **----------------------** **M.P.SURENDRAN, DETECTIVE INSPECTOR, CRIME BRANCH CID, KANNUR.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT. N. SANTHA SMT.RESMI G. NAIR** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI FOR R1 & 2** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 3085 of 2003(P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 - TRUE COPY OF THE MEMO OF CHARGES NO. 2910/A1/96/VIG.DATED 4.7,1996 ALONG WITH THE STATEMENT OF ALLEGATIONS.** - **EXT.P2 - TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE FILED BY THE PETITIONER BEFORE THE ENQUIRY TRIBUNAL DATED 8.10.1997.** - **EXT.P3 - TRUE COPY OF THE SHOW CAUSE NOTICE NO.11825/A1/97/VIG.DATED 19.1.1998 TO THE PETITIONER ISSUED BY GOVERNMENT.** - **EXT.P4 - TRUE COPY OF THE REPORT OF THE VIGILANCE TRIBUNAL IN ENQUIRY CASE NO. 3/97.** - **EXT.P5 - TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 7.4.98.** - **EXT.P6 - TRUE COPY OF THE LETTER NO.A1(I)-25535/98/GW DATED 2.2.1999 OF THE SECRETARY, KPSC.** - **EXT.P7 - TRUE COPY OF THE G.O.(Rt) NO.132/2000/VIG. DATED 12.6.2000.** - **EXT.P8 - TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT OF KERALA, TVPM. DATED 14.9.2000.** - **EXT.P9 - TRUE COPY OF THE JUDGMENT IN O.P. NO. 31684/2000V DATED 10.11.2000 OF THIS COURT.** - **EXT.P10 - TRUE COPY OF THE G.O.(Rt) 47/2001/VIG. DATED 6.2.2001.** - **EXT.P11 - TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 29.12.2001.** ## **// TRUE COPY //** **PA TO JUDGE** **rhs** ## **S. SIRI JAGAN, J** **............................................... O.P. No.3085 of 2003** **................................................. Dated this the 17[th] day of September, 2009** ## **J U D G M E N T** While the petitioner was working as a Deputy Superintendent of Police, disciplinary proceedings were initiated against him on certain charges of misconduct. The matter was referred to the Vigilance Tribunal for an enquiry. Vigilance Tribunal conducted an enquiry and filed a report to the Government holding the petitioner guilty of certain misconducts. Thereupon enclosing a copy of the enquiry report, Ext.P3 show cause notice was issued to the petitioner, directing the petitioner to show cause why the provisional decision of the Government to remove the petitioner from service as punishment should not be confirmed. To Ext.P3 show cause notice, petitioner submitted Ext.P5 reply inter alia taking the contention that the petitioner had not been given an opportunity to represent against the findings of the Vigilance Tribunal before the disciplinary authority accepted the findings, which amounts to violation of principles of natural justice as laid down by the decisions of the Supreme Court of India. Without answering this specific **O.P. No.3085 of 2003** -2- contention, by Ext.P7 order, the Government imposed on the petitioner the punishment of reduction in rank to the lower post for a period of five years. The petitioner filed a review petition which was dismissed by Ext.P10 order. The petitioner is challenging Ext.P7 and Ext.P10 orders in this original petition. 2. Petitioner challenges the orders on several grounds. I am not going into all those grounds in detail since one of the grounds raised by the petitioner itself is sufficient to set aside the impugned order. The contention of the petitioner is that it is one of the cardinal principles of natural justice that before the disciplinary authority accepts the findings of the enquiring authority, it is mandatory for the disciplinary authority to furnish a copy of the enquiry report to the delinquent giving him an opportunity to represent against the findings in the enquiry. According to the petitioner, in Ext.P3 such an opportunity had not been given to the petitioner. Instead after agreeing with the report of the Vigilance Tribunal, the Government had straight away directed the petitioner to show cause why the punishment of removal from service should not be imposed on him, without an opportunity to show cause against the findings in the enquiry. 3. The learned Government Pleader would strenuously **O.P. No.3085 of 2003** -3- contend that Ext.P3 is only a provisional decision in respect of the findings in the enquiry also and the petitioner was required to show cause against the finding also. Therefore the principles of natural justice had been duly complied with in so far as along with Ext.P3 show cause notice the petitioner had been furnished with a copy of the enquiry report asking him to show cause against the finding therein also is the contention of the learned Government Pleader. ## 4. I have considered the rival contentions in detail. 5. In Ext.P3 show cause notice what has been stated is as follows: “Government examined the whole issue in detail with reference to the relevant documents, statement of witnesses and the report of the Vigilance Tribunal and considering the gravity of the offence committed by the AO-1, Government have provisionally decided to remove Shri. M.P. Surendran, formerly Deputy Supdt. of Police, CB CID (CFS), Ernakulam from service. Shri. M.P.Surendran, is therefore, requested to show cause, if any, within 15 days from the date of receipt of this notice, why the above provisional decision of Government should not be confirmed. If no reply is received within the stipulated time, the matter will be proceeded with on the presumption that he has nothing to offer as explanation in the matter.” ## 6. In Ext.P5 reply to the same, the petitioner had categorically stated thus: **O.P. No.3085 of 2003** -4- “5. Before deciding to accept and act upon the report of the Vigilance Tribunal I should have been given an opportunity to show cause by Government. Instead of doing that what has now been done is to accept the finding and recommendation of the Vigilance Tribunal and to issue a show cause notice to me calling upon me to show cause why the provisional decision of the Government to punish me should not be confirmed. This it is respectfully pointed out, is violative of the principles of natural justice and against the legal position laid down by the decision of the Hon'ble Supreme Court of India reported in 1993 (4) SCC 727 and 1991(1) SCC 588.” There is absolutely no reference to the said contention of the petitioner in Ext.P7 order. On the other hand in Ext.P7 it is specifically stated thus: “Government have examined the report and recommendation of the Vigilance Tribunal with reference to the connected records of the case and have accepted the above findings of the Vigilance Tribunal. Show Cause Notices were also served on the accused officer and their explanations obtained.” The same would categorically show that at the time of issuing Ext.P3 show cause notice itself the Government had already accepted the findings of the Vigilance Tribunal that the petitioner is guilty of misconducts alleged against him. In the decision of this court in **Dr.C.B.Sudhakaran v. Cochin Education Society and Another** [2009 (1) KHC 685(DB), in paragraph 14, this court has held thus: “14. By virtue of the Constitution Bench of the Apex Court, the position of law is settled that furnishing a copy of the enquiry report, before accepting the same **O.P. No.3085 of 2003** -5- by the employer and proposing a punishment, is a mandatory requirement of the principles of natural justice. As such, a report also forms part of the proceedings in a disciplinary action, based on which the management decides as to whether a punishment should be imposed of not. Thereofe, it is not only the materials before the enquiry, but the enquiry report also forms the basis of further action, and hence as held by the Apex Court, in case, the report is not furnished to the delinquent employee before arriving at a conclusion as to accept or reject the finding thereof, will certainly vitiate the disciplinary action taken against him. Even though, the learned counsel appearing for the respondents placed reliance on the decision of the Apex Court in **State of U.P. v. Harendra Arora and Another** 2001 SCC (L&S) 959 and canvassed for the position that unless any prejudice is shown, such nonfurnishing of the report will not be fatal to the disciplinary proceedings. But in the light of the Constitution Bench of the Apex Court, wherein unambiguous terms, it was held that furnishing of the enquiry report is a mandatory requirement embodied under Article 311 (2) of the Constitution of India. An opportunity to show cause why the finding of the enquiry officer shall not be accepted is mandatory, so that before accepting the finding, the disciplinary authority can consider as to whether all or any of the finding should be accepted or not, in the light of the objection filed by the delinquent employee. If an opportunity is not given in the manner as laid down by the Apex Court, by furnishing a report, virtually it denies to the delinquent a fair opportunity of being heard in the matter, because the enquiry report is not known to the delinquent employee, which also is a material relied on by the management, based on which action is proposed. Therefore, when that material is kept away from the employee, that itself works not to his prejudice. In the result, we find that the failure to supply a copy of the enquiry report to the delinquent employee before accepting the finding thereon has vitiated the disciplinary proceedings” 7. From the facts as held above, it is quite clear that the petitioner had not been afforded an opportunity to represent **O.P. No.3085 of 2003** -6- against the findings of the Vigilance Tribunal as required under law. 8. Accordingly, Exts.P7 and P10 orders are quashed. Ext.P3 show cause notice shall be construed as a composite notice to the petitioner directing him to file his representation as to why the findings of the Vigilance Tribunal should not be accepted by the Government and why, if after considering the representation of the petitioner, the Government accepts the findings why the punishment of removal of service should not be imposed on him. The petitioner shall file his representation with regard to both within one month from today. On receipt of the same, the Government shall consider the representation and enter a finding as to whether the Government accepts the findings of the Vigilance Tribunal giving reasons and proceed thereafter in accordance with law. The original petition is disposed of as above. ## **S. SIRI JAGAN, JUDGE** rhs