OP(KAT) No.336/2020 (Arising out of OA 230/2018, KAT, Thiruvananthapuram Bench)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** # **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** **OP(KAT).No.336 OF 2020** **AGAINST THE ORDER IN OA 230/2018 DATED 07-01-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS NO.1 TO 4 IN O.A:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY HOME DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM KERALA, 695 001.** - **2 INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM RANGE, OFFICE OF THE INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM RANGE, NANDAVANAM. THIRUVANANTHAPURAM, KERALA, 695 033.** - **3 DEPUTY POLICE COMMISSIONER (L AND O), OFFICE OF THE DISTRICT POLICE CHIEF AND COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THYCAUD P.O. THIRUVANANTHAPURAM , KERALA, 695 014.** - **4 CIRCLE INSPECTOR OF POLICE, PEROORKADA POLICE STATION, PEROORKADA, THIRUVANANTHAPURAM , KERALA 695 005.** **BY SRI.ANTONY MUKKATH, SR.GOVT.PLEADER** ## **RESPONDENT/APPLICANT IN O.A/RESPONDENT NO.5 IN O.A:** **1 S.VIJAYAKUMAR AGED 57 YEARS S/O. R. SHAMNUGAN, GRADE SUB INSPECTOR OF POLICE (GN T 9208), POLICE CONTROL ROOM, THIRUVANANTHAPURAM CITY, CURRENTLY RESIDING AT GEETHANJALI, DEVARVILAKOM, AYANIMOODU, VEDIVECHANKOIL, THIRUVANANTHAPURAM , KERALA 695 501,** O.P(KAT) No.336/2020 2 **2 SRI. P. SUKUMARAN NAIR, SUB INSPECTOR OF POLICE (RETIRED), CRIME BUREAU, NEMOM POLICE STATION, NEMOM, THIRUVANANTHAPURAM 695 020.** **R1 BY ADV. SRI.SHABU SREEDHARAN R1 BY ADV. SRI.S.VIJAYAN R1 BY ADV. SRI.V.PRINCE DEV R1 BY ADV. SRI.JINSON OUSEPH R1 BY ADV. SMT.CHITRA VIJAYAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.336/2020 3 **(C.R)** ## **ALEXANDER THOMAS & K.BABU, JJ.** ------------------------------------ O.P(KAT) No.336 of 2020 ( _Arising out of the order dated 07-01-2020 in O.A No.230 of 2018 of KAT, Tvm Bench_ ) -----------------------------------Dated this the 25[th] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayer in the afore captioned Original Petition filed by the petitioners herein in this O.P (State of Kerala & three others)/ respondents 1 to 4 in the O.A is as follows (See page No.11 of the paper book of this O.P): _“…….to set aside Ext.P4 order dated 07-01-2020 in O.A No.230/2018 on the file of the Hon’ble Kerala Administrative Tribunal, Thiruvananthapuram Bench by allowing this Original Petition (KAT).”_ 2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners herein. In the nature of the orders proposed to be passed by this Court in this petition, notice to the respondents in the O.P/sole original applicant in the O.A and R5 in the O.A before the Tribunal will stand dispensed with. 3. The prayers in Ext.P1 original application, O.A No.230/2018 filed by R1 herein/applicant before KAT, Thiruvananthapuram Bench are as follows (See page No.26 of this paper book): - _“(i) To call for the records leading to Anx.A3, Anx.A6, Anx.A8 & Anx.A11 and to set aside the same._ - _(ii) To issue such other orders or directions as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.”_ O.P(KAT) No.336/2020 4 4. The Tribunal after hearing both sides has rendered the impugned Ext.P4 order dated 07-01-2020 in O.A No.230/2018, whereby it has been held that the applicant was entitled to succeed and that the impugned Anx.A3 punishment roll minutes, Anx.A6 penalty order, Anx.A8 appellate order and Anx.A11 review order have been set aside and the respondents in the O.A had been directed to issue consequential orders within three months in the light of the abovesaid orders, etc. It is this final order at Ext.P4 rendered by the Tribunal that is under challenge in this original petition. 5. At the time when the applicant had filed Ext.P1 O.A before the Tribunal, he was serving as Grade Sub Inspector in the Kerala Police Department. It is common ground that during the pendency of the O.A, he had retired from service while holding the said post. He had earlier entered service as a Police Constable in the Special Armed Police (SAP), Thiruvananthapuram on 05-11-1990 and he was transferred to the District Armed Reserve and further to the Local Wing of the Police and later promoted as Head Constable some time in the year 2014. It was while working as a Police Constable at Thiruvananthapuram, Nemom Police Station, that the applicant and two of his colleagues were arrayed as accused in FIR in crime 5 O.P(KAT) No.336/2020 No.468/2004 of Thiruvananthaparam Nemom Police Station for offences punishable under Secs.379, 120 and 34 of IPC read with Sec.8(i)(ii) of Abkari Act. The applicant was arrayed as accused No.4 therein. The allegations of the abovesaid crime were to the effect that, the spirit, which is allegedly the subject matter of the theft and seized and kept in the Nemom police station was stolen with the connivance of the police personnel of that police station and that the applicant and others are alleged to have connivance to the main accused for taking away the illicit liquor from the police station premises for an amount of Rs.6,000/-. The applicant and the other co-accused police personnel were placed under suspension from service on 22-12-2004 and later the disciplinary enquiry was ordered in terms of the provisions contained in the Kerala Police Departmental Inquires, Punishment and Appeal Rules, 1958. The applicant was later reinstated in service as per order dated 08-082005. An officer of the rank of Inspector of Police was appointed as the Enquiry Officer in the said disciplinary enquiry proceedings and the applicant & the other delinquent police personnel were issued with the impugned Anx.A1 memo of charges dated 21-06-2005. The enquiry officer had completed the enquiry and had submitted Anx.A3 O.P(KAT) No.336/2020 6 Punishment Roll (PR) minutes/enquiry report, finding that, the applicant and other co-delinquents personnel are guilty of the allegations raised against them in the memo of charges. However, presumably in view of the pendency of the criminal proceedings, the passing of final order was kept in abeyance in view of the provisions of the Rules. 6. Further it appears that, the police had also completed the investigation in the criminal proceedings and final report/charge sheet was filed in the said case, which led to the institution of Sessions Case, S.C No.1037/2010 on the file of the VI Additional Sessions Court, Thiruvananthapuram. Later, the Sessions Court had passed Anx.A4 order dated 30-05-2016, discharging the accused police personnel (accused 3 to 6) including A4/applicant herein finding that, the criminal proceedings against them are liable to be dropped. It was found that there was no legally acceptable evidence to proceed further with trial in the case so as to enable the Sessions Court to frame charges against them. Thus by Anx.A4 order, the Sessions Court had discharged the said accused persons including the applicant in terms of the provisions contained in Sec.227 of the Cr.PC. Later, in the abovesaid disciplinary proceedings, which was kept in O.P(KAT) No.336/2020 7 abeyance, the applicant was served with Anx.A5 show cause notice directing to show cause as to why the tentative decision proposed therein to impose punishment of barring of three increments with cumulative effect should not be confirmed. The applicant’s explanation was rejected by the impugned Anx.A6 order dated 24-102016 and the Deputy Superintendent of Police had imposed the abovesaid penalty. Annexure A6 penalty order was confirmed by Anx.A8 appellate order dated 12-02-2017, which in turn was also confirmed by AnxA11 Review/Revisional order dated 28-09-2017 issued by the competent authority of the State Government in the Home Department. The abovesaid impugned proceedings at Anx.A6 penalty order, Anx.A8 appellate order & Anx.A11 review/revisional order that were challenged by the applicant in the O.A filed before the Tribunal. The Tribunal has found after consideration of the rival pleas that the original applicant is entitled for the benefit of the statutory provisions contained in Sec.101 (8) (1) of the Kerala Police Act, 2011. It was also held therein that the petitioner is entitled to succeed in view of some of the decisions of the Apex Court cited therein. 7. Section 101 deals with the departmental Enquiry O.P(KAT) No.336/2020 8 Proceedings and Sub Sec.(1) of Sec.101 stipulates that any police officer, who commits any misconduct or offence under the said Act or any other Act for the time being in force or rule or order made thereunder may be subjected to departmental enquiry proceedings under the Kerala Police Departmental Enquiries, (Punishment and Appeal) Rules 1958 notified by the Government. The relevant provision concerned in this case as per Sub Sec.(8)(1) of Sec.101, which reads as follows: _**“Sec.101** xxx xxx xxx_ _**Sec.101 (1)** xxx xxx xxx_ _**(8) (1)** Department level enquiry proceedings may be initiated against any police officer_ _**for the same matter** even though he was exonerated by a criminal court after trail, he shall not be subjected to penalties_ _**on the basis of the same facts** in department level enquiry. (emphasis Supplied)_ It may also be profitable to refer to the abovesaid provision as contained in the original Malayalam version of the Act, which is given on page 72 of this paper book and the same reads as follows: _**"101(8)(1).-**_ ഒര� പ��ല�സ ഉപ���ഗസന� ഒര� ക��മ��ൽ പ��ടത�യ�നട വ�ച�രണക� പ�ഷ! നവറ�നത വ�ട��യ�നണങ�ൽ അപത സ!ഗത�ക� ��കണ �ട�ട� വ��പ'തല അപത സ)��ര�ക�വ�നത�നണങ�ല�! വസത�ത�ള'നട അട�സ��ത�ൽ വ��പ'തല അപ�)ഷണത�ൽ അപത ��റത�ന ��കണ �ട�ട�ക� വ�പ/യ��ക�ൻ ��ട�ളതല2 _." (Emphasis Supplied)_ 8. We have heard both sides and gone through the pleadings and materials on record. O.P(KAT) No.336/2020 9 9. It is seen that from a reading of materials on record, more particularly, Anx.A4 order of discharge rendered by the Sessions court as well as Anx.A3 Punishment Roll report, the gist of the criminal proceedings in the instant case is as follows: _That the case/matter related to the allegations that illicit spirit/illicit alcohol seized and kept in the premises of the Thiruvananthapuram Nemom police station, was stolen with the connivance of the delinquent police personnel including the applicant at the police station and that the delinquent police officials had acted in concert with the main accused for taking away the seized illicit liquor from the police station premises, etc. The main allegation in the said case/matter was that the applicant and other delinquent police officials are guilty of the abovesaid charges inasmuch as the prime accused had allegedly given a confession statement to the police in that regard._ 10. A reading of Anx.A4 order of discharge issued by the Sessions Court in the criminal proceedings would show that, even going by the prosecution case, there was no recovery of any material, which can be treated as discovery of fact in pursuance of the confession statement as understood in Sec.27 of the Indian Evidence O.P(KAT) No.336/2020 10 Act. So even going by the admitted prosecution materials, not even the alleged seized material was actually recovered in pursuance of the confession statement. In other words, the very foundation and substratum of the prosecution case is that the alleged illicit spirit was seized etc, was not factually tenable. Since there was no recovery of the alleged material in pursuance of the confession statement, criminal court has rightly held that there was no discovery of facts in pursuance of the confession statement as understood in Sec.27 of the Indian Evidence Act and therefore the very confession statement itself is in a inadmissible evidence. That apart, the very substratum of the prosecution case regarding the alleged seizure of the illicit liquor in pursuance of the confession statement said to have been given by the prime accused, has not been proved in the case. 11. The petitioners do not have any case that the abovesaid facts disclosed in the impugned criminal proceedings at Anx.A4 have in any manner improved in the departmental proceedings referred to in Anx.A3 punishment roll report inasmuch as they do not have a case that any evidence or materials have been let in to show that the set of facts which came out in the impugned criminal proceedings are in any manner substantially or significantly different from that O.P(KAT) No.336/2020 11 disclosed in the departmental enquiry. The very substratum of the prosecution allegations regarding the seizure of the alleged illicit, based on the alleged confession statement of the prime accused, had collapsed. In cases of this nature, the Tribunal has held that though the departmental enquiry is not barred in the same matter covered by the impugned criminal proceedings, the legislature has clearly mandated in Sub Sec.8 of Sec.101 that departmental penalties cannot be imposed on the alleged delinquents on the same set of facts in the subject matter of the criminal proceedings. In the instant case, the matter of the case as conceived in the first limb of Sec.101 (8) (1) (which is referred to in the original malayalam version of the Act as " സ!ഗത�"), is the case relating to the alleged seized illicit liquor, which was later allegedly stolen and taken away by the police personnel, etc. 12. The facts disclosed and proved in the impugned criminal proceedings as disclosed in Anx.A4 order of discharge are that not even recovery of the alleged material said to have been seized, has been made out in pursuance of the confession statement. In other words, not even the confession statement is inadmissible inasmuch as there is no independent discovery of facts in pursuance of O.P(KAT) No.336/2020 12 confession statement but the crucial fact of the matter is that even the very substratum of the prosecution case regarding the alleged seized illicit alcohol, etc was found to be not disclosed in the criminal proceedings at all. The said facts in relation to the impugned criminal proceedings as referred to in the second limb of Sec.101(8) (1) (which is referred to as Page No.72 in the malayalam Act), is that even the very substratum of the prosecution case regarding the alleged seized illicit spirit, etc has not been disclosed or proved therein. The petitioners do not have any case that the said factual aspects disclosed in the criminal proceedings have in any manner significantly improved in the departmental proceedings at Anx.A3 by any evidence or material which may even satisfy the norm of lower standard of proof based on preponderance of probabilities. Therefore, the Tribunal has rightly held that the departmental authorities concerned are barred in imposing any penalty on the delinquent, in terms of the embargo created in Sec.101 (8)(1) of the Kerala Police Act, 2011. There was no bar as such in initiating proceedings both for criminal proceedings as well as the departmental proceedings. In that regard, the Tribunal has also placed reliance on the dictum laid down by the Apex Court in O.P(KAT) No.336/2020 13 decisions as in _**Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. & another**_ [AIR (1999) SC 1416]=[1999 (3) SCC 679]. In _**Capt.M.Paul Anthony's case**_ supra, the delinquent employee was proceeded against both in criminal proceedings as well as in disciplinary proceedings. The case or matter was on the basis of raid and recovery at his residence, which allegedly showed his criminal culpability. In the criminal proceedings the trial court found that there was in fact neither a raid nor a recovery. However, later the departmental authorities had imposed punishment of dismissal from service on the delinquent employee, based on the alleged raid and recovery. Wherein also the Apex Court found that the fact disclosed and proved in the criminal proceedings was that, the alleged raid and recovery which is very substratum of the prosecution case, could not be proved. It appears that there was no significant improvement of the case regarding any contra proof or material to show the guilt of the accused based either on the alleged raid and recovery by any other evidence or any other legally acceptable evidence, even going by the norms of preponderance of probabilities Hence in the said case, it was found that the action of the departmental authorities in imposing penalty on the delinquent employee, when the very O.P(KAT) No.336/2020 14 essential facts regarding raid and recovery could not be proved, etc would be nothing but unjust, oppressive and unfair etc and hence the impugned penalty order was quashed by the Apex Court and direction for reinstatement of the employee was also granted. 13. However while concluding, the Tribunal in this case has observed in the last sentence of para 16 on internal page No.16 of Ext.P4 final order (See page No.117 of this paper book) that in view of the provisions contained in Sec.101(8)(1) which provide that when the departmental enquiries were initiated on the same set of facts as in the criminal case which ended in an acquittal, then no punishment could be imposed on the applicant. It appears that the said observations may not be as intended and what would have been intended to convey is that, though the departmental proceedings could be initiated in the same matter of case on the basis of which the criminal proceedings arose, once the delinquent is exonerated by the criminal court after trial, then he shall not be subjected to penalties on the basis of the same set of facts (on the basis of the proved facts in the departmental enquiry), which is the same as the proved facts disclosed in the impugned criminal proceedings. The exception would be when there are materials to hold that the facts proved against the delinquent in O.P(KAT) No.336/2020 15 the department enquiry is different from the facts proved in the criminal trial which exonerated him. The substance and essence of the findings of the Tribunal are as indicated hereinabove and cannot be in any manner disputed in this case. Moreover, it has to be borne in mind that the abovesaid provision in Sec.101 (8)(1) has been engrafted by the State legislature themselves and therefore there cannot be any two views that the provisions contained in the Kerala Police Departmental Enquiries Punishment & Appeal Rules though framed under the provisions of the Kerala Public Service Act, is subservient to the provisions contained in the Kerala Police Act, since the subject matter of Sec.101(8)(1) is departmental enquiry proceedings taken in pursuance of the abovesaid statutory rules. 14. In the light of these aspects, we are of the considered view that, the Tribunal cannot be faulted for having issued the impugned directions in question. At any rate, the said directions cannot be said to be illegal or perverse, etc. Hence, in other words, no grounds for judicial review or judicial superintendence in terms of Articles 226 & 227 of Constitution of India are made out by the petitioners in this case. However, we note that the directions had been issued by the Tribunal at Ext.P4 dated 07-01-2020 directing that the respondents O.P(KAT) No.336/2020 16 therein should also issue consequential proceedings in view of the quashment of the impugned disciplinary proceedings. The time limit thereof was three months, which has expired long ago. The present O.P(KAT) has been filed before this Court on 06-10-2020. In view of the long delay in the matter, it is ordered that the petitioners shall ensure the immediate compliance of the abovesaid directions issued by the Tribunal at Ext.P4, without any further delay, at any rate, within six weeks from the date of receipt of a certified copy of this judgment. 15. The Secretary to the Office of the Advocate General will ensure that the certified copies of this judgment are forwarded to all the petitioners herein by registered speed post with acknowledgment due. The Registry will ensure that a copy of this judgment is forwarded to R1 herein (Original applicant) for necessary information. With these observations and directions, the above original petition will stand disposed of. ## Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **K.BABU, JUDGE** KAS O.P(KAT) No.336/2020 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE O.A. 230/2018 ALONG**| |---|---| ||**WITH EXHIBITS BEFORE THE HONOURABLE**| ||**KERALA ADMINISTRATIVE TRIBUNAL.**| |**ANNEXURE A1**|**TRUE COPY OF THE MEMO OF CHARGE DULY**| ||**APPROVED BY THE COMMISSIONER OF POLICE,**| ||**THIRUVANANTHAPURAM CITY AND ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER NO.**| ||**H2/66662/2004 TC DATED 08.08.2005**| ||**ISSUED BY THE COMMISSIONER OF POLICE,**| ||**THIRUVANANTHAPURAM CITY REINSTATING THE**| ||**APPLICANT INTO SERVICE.**| |**ANNEXURE A3**|**TRUE COPY OF THE PR MINUTES DATED**| ||**17.06.2006 SUBMITTED BY 4TH RESPONDENT**| ||**BEFORE THE 3RD RESPONDENT.**| |**ANNEXURE A4**|**TRUE COPY OF THE ORDER IN SC NO.**| ||**1037/2010 DATED 30.05.2016 ISSUED BY**| ||**THE HONOURBLE ADDITIONAL DISTRICT AND**| ||**SESSIONS JUDGE IV, THIRUVANANTHAPURAM.**| |**ANNEXURE A5**|**TRUE COPY OF THE SHOW CAUSE NOTICE NO.**| ||**H2/66662/2004TC DATED 23.07.2016 ISSUED**| ||**FROM THE OFFICE OF THE 3RD RESPONDENT.**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER NO.**| ||**H2/66662/2004 TC DATED 24.10.2016**| ||**IMPOSING MAJOR PENALTY OF 3 YEARS**| ||**ISSUED BY THE 3RD RESPONDENT.**| |**ANNEXURE A7**|**TRUE COPY OF THE APPEAL DATED**| ||**12.12.2016 SUBMITTED BY THE APPLICANT**| ||**BEFORE THE 2ND RESPONDENT.**| |**ANNEXURE A8**|**TRUE COPY OF THE ORDER NO. A2(B) /**| ||**17561/2016/TR DATED 12.02.2017 OF THE**| ||**2ND RESPONDENT REJECTING THE APPEAL**| ||**SUBMITTED BY THE APPLICANT.**| O.P(KAT) No.336/2020 18 **ANNEXURE A9** **TRUE COPY OF THE REVIEW PETITION DATED 04.04.2017 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT.** **ANNEXURE A10** **TRUE COPY OF THE ORDER IN OA 567/2017 DATED 12.04.2017 ISSUED BY THE HONOURABLE KAT, THIRUVANANTHAPURAM.** **ANNEXURE A11** - **TRUE COPY OF GO (RT) NO. 2555/2017/HOME DATED 28.09.2017 OF THE 1ST RESPONDENT, REJECTING THE REVIEW PETITION SUBMITTED BY THE APPLICANT.** **EXHIBIT P2** - **TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT DATED 09.10.2018.** - **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT AGAINST THE REPLY STATEMENT OF THE 1ST REPRESENTATION.** - **EXHIBIT P4 TRUE COPY OF THE ORDER IN OA NO. 230/2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** ## **RESPONDENT'S/S EXHIBITS: NIL**