N.G. Sreemon v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **WA.No.660 OF 2020** **AGAINST THE INTERIM ORDERS DATED 06.03.2020 & 23.03.2020 IN WP(C) 28841/2018(E) OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **N.G.SREEMON STATION HOUSE OFFICER AND CIRCLE INSPECTOR OF POLICE (UNDER SUSPENSION), THODUPUZHA-685584.** **BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) SRI. M.R. RAJENDRAN NAIR SR. ADV. FOR APPELLANT** ## **RESPONDENTS/WRIT PETITIONER & RESPONDENTS IN WP:** - **1 BABYCHAN VARKEY, AGED 64 YEARS, S/O.VARKEY, SASTHAM KUNNEL, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK.** - **2 THE INSPECTOR GENERAL OF POLICE, KOCHI RANGE, ERNAKULAM-682031.** - **3 THE DISTRICT POLICE CHIEF, IDUKKI DISTRICT-685603.** - **4 THE DEPUTY SUPERINTENDENT OF POLICE, THODUPUZHA.** - **5 MR.VIJO SCARIA, NADUKKUDIYIL HOUSE, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK-685895.** WA No.660/2020 -:2:- - **6 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT-695001.** - **7 STATE POLICE CHIEF, TRIVANDRUM-695001.** - **8 ADDITIONAL DGP (STATE INTELLIGENCE), POLICE HEAD QUARTERS, TRIVANDRUM-695001.** **SRI. P.N. SANTHOSH- SR.G.P.FOR R2 TO 4,R6- R8, SRI. THOMAS J. ANAKKALLUNKAL FOR R1 SRI. P.S. APPU FOR R5** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-062020, THE COURT ON 08-06-2020 DELIVERED THE FOLLOWING:** WA No.660/2020 -:3:- **==> picture [66 x 12] intentionally omitted <==** ## **J U D G M E N T** Dated this the 8[th] day of June, 2020 ## _**Shaffique, J.**_ Interim orders dated 6/3/2020 and 23/3/2020 in WP(C) No. 28841/2018 are under challenge in this appeal filed by the 4[th] respondent. The aforesaid orders came to be passed by the learned Single Judge in a writ petition filed by the 1[st] respondent herein alleging that the 4[th] respondent in the writ petition and their subordinates were harassing him. The 4[th] respondent was working as Circle Inspector of Police, Thodupuzha. According to the petitioner, at the instance of the 5[th] respondent, he was being unnecessarily summoned to the police station and harassed, without any complaint whatsoever, by the 5[th] respondent. He apprehended that he will be forced to execute agreements or to issue signed blank cheques in favour of the 5[th] respondent. 2. It seems that during the pendency of the above writ petition, the Inspector General (Vigilance) was directed to WA No.660/2020 -:4:- conduct an enquiry into the complaint made against 4[th] respondent. It was noticed that there were more than 30 complaints against the 4[th] respondent. The Additional Director General of Police (Intelligence) reported that the 4[th] respondent was repeatedly involving in civil disputes over which he has no jurisdiction and he has a tendency to misuse, threat and abuse the position as a police officer. An enquiry report filed by Inspector General of Police, Vigilance and Anti Corruption Bureau had recommended disciplinary action against the aforesaid officer. Having taken note of the said reports, the learned Single Judge by order dated 6/3/2020 directed the concerned authority to pass an order suspending the 4[th] respondent from service forthwith subject to the enquiry to be concluded. The Additional Director General of Police (Crimes) was directed to take immediate action against the 4[th] respondent and also to take follow up action for disciplinary enquiry without any further delay. The appellant/4[th] respondent filed IA No.1/2020 seeking to vacate the interim order dated 6/3/2020 inter alia contending that by order dated 7/3/2020, the Additional Director General of Police and Director, Crime Branch had suspended him from service WA No.660/2020 ## -:5:- pending disciplinary action. It was contended that in so far as the order of suspension had been issued only in obedience with the direction issued by this Court, and that too in the absence of any such prayer in the writ petition, appellant had lost an opportunity to show cause why he should not be suspended from service. By order dated 23/3/2020, the learned Single Judge disposed of the said application _inter alia_ observing that the order dated 6/3/2020 came to be passed since there was serious threat to the society and also to safeguard the interest of persons like the writ petitioner. That apart, the writ petitioner was threatened to withdraw the petition. However, it was further observed that nothing precludes the applicant from challenging the order of suspension pointing out the defects in the enquiry and also challenging the findings and observation in the enquiry reports. It was made clear that the disciplinary authority, the appellate authority, the Tribunal or any other courts, as the case may be, could examine the case set up by the appellant. It was further observed that the order cannot be vacated since the harassment against the public was enormous. Accordingly, the said application was dismissed. WA No.660/2020 -:6:- 3. The learned senior counsel Sri.M.R.Rajendran Nair appearing on behalf of the appellant would contend that the learned Single Judge committed serious error in directing the disciplinary authority to suspend an officer of the Government. The writ petition has been filed alleging harassment by police and while considering the said petition, certain reports were called for and even assuming that the reports indicated further enquiry into the matter, it is for the disciplinary authority to decide whether the delinquent officer should be suspended from service pending any enquiry. It is also pointed out that when an order of suspension had been passed based on an order passed by the Constitutional Court, no authority will endeavour to vacate the said order of suspension and it may even affect the disciplinary proceedings against the appellant. It is also pointed out by the learned counsel for the appellant that during the COVID epidemic, all orders of suspension against various police officers were revoked and they were asked to report to their parent units for being deployed for crisis related duties. In view of the fact that order of suspension was issued by the disciplinary authority as per directions issued by this Court, the appellant's order of WA No.660/2020 -:7:- suspension alone was not revoked. 4. We heard the learned counsel appearing for the writ petitioner, who argued that, in the present instance, there had been several allegations against the delinquent officer. But no action was being taken by the competent authority. It was only when this Court interfered in the matter that they woke up from their slumber and disciplinary proceedings were initiated. The learned Government Pleader submits that there were about 33 complaints against the appellant and disciplinary action had been taken against him in most of the cases. Enquiry reports with respect to 17 cases were submitted to the Court in a sealed cover and they are awaiting instructions from the court to take further action against the delinquent officer. 5. Primarily we are of the view that the learned Single Judge had travelled beyond the scope of the writ petition. The main contention urged by the petitioner was that he was harassed by the 4[th] respondent and his subordinates. Necessarily appropriate orders could have been passed by the learned Single Judge to take necessary action against the delinquent officer for harassing the petitioner and unnecessarily involving in civil WA No.660/2020 -:8:- disputes. But having received the reports from various enquiry officers, learned Single Judge proceeded further and directed suspension of an officer of the Government. An order of suspension can be passed only by the disciplinary authority pending enquiry. If the court directs suspension of an officer pending enquiry, it would virtually amount to interfering with the authority vested with the disciplinary authority pending an enquiry against the said officer. Further, as rightly pointed out by the learned senior counsel for the appellant, when an order of suspension is issued as per directions of the Court, no authority will tend to revoke it. It might be an instance where the delinquent officer is involved in several misconducts, but still, it is not appropriate for the Court to direct suspension of an officer of the Government. The Court cannot exercise the power which is to be performed by the disciplinary authority, and to that extent, no mandamus could be issued. 6. The order of suspension which is produced as Annexure 2 further indicates that the disciplinary authority has ordered suspension only on account of the fact that a direction had been issued by this Court. Suspension of an officer arises only when WA No.660/2020 -:9:- the disciplinary authority _prima facie_ forms an opinion that the officer should be kept under suspension pending enquiry. When a Court directs that an officer should be suspended, it virtually negates the right of such an officer to challenge the order of suspension in appropriate proceedings. The disciplinary authority of course could have ordered suspension depending upon the factual situation arising in the complaint/enquiry. 7. The procedure for conducting an enquiry against a member of Kerala Police Service or the Kerala Police Subordinate Service is in accordance with the Kerala Police Department Inquiries, Punishment and Appeal Rules, 1958. The procedure for enquiry is contemplated under Rule 6 which inter alia indicates that if a complaint is received against a member of the service, the departmental superior shall make a preliminary enquiry and determine whether there are grounds for further action. However, if _prima facie_ it is found that no preliminary enquiry is required and it is established to the satisfaction of the departmental superior that there are _prima facie_ grounds for departmental action, such ground has to be reduced to the form of a definite charge or charges and it has to be communicated to the member WA No.660/2020 ## -:10:- of the service together with a statement of allegations on which such charge is based, and of any other circumstances which it is proposed to take into consideration in passing orders in the matter. The enquiry has to be conducted in accordance with the procedure prescribed under Rule 6 and imposition of penalty shall be in accordance with the procedure so prescribed. 8. An order of suspension can be passed under Rule 7, which reads as under:- ## _**“7. Suspension:-**_ _(1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in this behalf, may place a member of a service under suspension, where-_ _(a) an inquiry – into his conduct is contemplated, or is pending, or_ _(b) a complaint against him of any criminal offence is under investigation or trial._ _(2) A member of a service who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty eight hours shall be deemed to have been suspended by the appointing authority under this rule._ _(3) An order of suspension under sub-rule(1) may be revoked at any time by the authority making the order or by any authority to which it is subordinate.”_ 9. As per Rule 7(3), an order of suspension could be WA No.660/2020 -:11:- revoked at any time by the authority making the order or by any other superior authority. Since the order of suspension has been made pursuant to an order of the court, directing the officer to be placed under suspension, the appellant's opportunity to call upon the competent authority to invoke sub-rule (3), would become futile. That apart, in the facts and circumstances of the present case, when the court places reliance upon an enquiry report and _prima facie_ arrives at a conclusion regarding the conduct of the officer, it will deprive the delinquent officer a fair opportunity to defend himself, which would amount to violation of the principles of natural justice. 10. In _**Rajnit Prasad v. Union of India**_ [(2000) 9 SCC 313], the Apex Court, while considering a public interest litigation held that: _“Disciplinary action against an employee is taken by the Government for various reasons principally for “misconduct” on the part of the employee. This action is taken after a “domestic” inquiry in which the employee is provided an opportunity of hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public interest of general importance is not_ WA No.660/2020 ## -:12:- _involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of the process of court.”_ ## 11. In _**State of W.B. v. Nuruddin Mallick**_ [(1998) 8 SCC ## 143], the Apex Court while considering the scope of a writ of mandamus held as under:- _“The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter.”_ ## 12. In _**State of Karnataka v. State of A.P.**_ [(2000) 9 SCC ## 572], the Apex Court held as under:- _“The law as regards the issuance of a mandatory order or writ depends upon the authority exercising the power as well as the nature of the function and obligations arising therefrom. It is settled law that such a direction cannot possibly be granted so as to compel an authority to exercise a power which has a substantial element of discretion.”_ 13. Accordingly we are of the view that the interim order passed by the learned Single Judge directing suspension of the officer has to be set aside. However, nothing prevents the disciplinary authority to pass an order of suspension pending any WA No.660/2020 -:13:- enquiry in accordance with the procedure prescribed. In the result, the writ appeal is allowed as under:- (a) Order dated 6/3/2020 and order dated 23/3/2020 in IA No.1/2020 are set aside. (b) Annexure A2 order is set aside and the disciplinary authority is directed to take appropriate action against the delinquent officer in accordance with law. (c) The enquiry reports produced before the learned Single Judge in sealed cover shall be returned to the learned Government Pleader for being handed over to the disciplinary authority and disciplinary action against the delinquent officer shall be completed as expeditiously as possible and not later than 3 months from the date of receipt of a copy of this judgment. **Sd/-** Rp **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** WA No.660/2020 -:14:- ## **APPENDIX** **APPELLANT'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF INTERIM ORDER DATED 6.3.2020 IN WPC.NO.28841/2018.** **ANNEXURE A2 TRUE COPY OF THE ORDER NO.H1/4701/2020/CB HQ DATED 7.3.2020. ANNEXURE A3 TRUE COPY OF I.A.NO.1/2020 WITHOUT EXHIBITS FILED BY THE APPELLANT IN WPC.NO.28841/2018. ANNEXURE A4 CERTIFIED COPY OF ORDER DATED 23.3.2020 DISMISSING IA.NO.1/2020 IN WPC.NO.28841/2018.**