Rajan Antony v. State of Kerala and The Director General of Police

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944** **RP NO. 730 OF 2022** **AGAINST THE ORDER/JUDGMENTOP(KAT) 28/2022 OF HIGH COURT OF KERALA REVIEW PETITIONER/PETITIONER:** RAJAN ANTONY,AGED 53 YEARS S/O (LATE) ANTONY, PC NO. 3482, CIVIL POLICE OFFICER, RAILWAY POLICE STATION, KOLLAM- PIN-691 001 RESIDING AT SABIN VILLA, VADAKKUMBHAGOM, CHAVARA SOUTH, KOLLAM, KERALA-, PIN - 691584 BY ADVS. R.REJI M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE SUNEESH KUMAR R. ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY , HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001 2 THE DIRECTOR GENERAL OF POLICE, HEAD QUARTERS, THIRUVANANTHAPURAM- PIN- 695 014, KERALA HEAD QUARTERS, THIRUVANANTHAPURAM, KERALA, PIN - 695014 ## **OTHER PRESENT:** SRI. SAIGI JACOB PALATTY-SR.GP THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.P No.730 of 2022 2** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **======================================** ## **R.P No.730 of 2022** _[Against the judgment dated 18.02.2022 in OP(KAT) No.28/2022 of High Court of Kerala]_ ## **===============================** Dated this the 21[st] day of February, 2023 ## **ORDER** ## **Viju Abraham, J.** The above review petition is filed pointing out an error in the judgment in as much as the fact that the disciplinary authority has violated the rules of natural justice while issuing the show cause notice as well as the impugned Annexure-A1 punishment order, was not duly considered while passing the said judgment. 2. The specific contention taken in paragraph 7 of the review petition is that a perusal of Annexure-A1 order makes it clear that the disciplinary authority has not informed the points of disagreements with the inquiry report to the applicant. Since the points of disagreement has not been put to the notice of the applicant, serious prejudice has been caused to him since he was unable to furnish a proper objection to the show cause notice. Petitioner submits that **R.P No.730 of 2022 3** the said position has been upheld by the Apex Court in **Punjab National Bank v. S.P.Goel, reported in 1998 (7) SCC 84** . Petitioner also relies on the judgment of the Apex Court in **SBI and** **Others v. Arvind.K.Shukla, reported in 2004(13)SCC 797** and also the judgment of this Court in **Philipose v. State Bank of Hyderabad, reported in 2001 (3) KLT 378.** 3. A perusal of OA No.812 of 2019 filed before the Kerala Administrative Tribunal challenging Annexure-A1 order imposing punishment the only contention taken by the petitioner is that before inflicting a major punishment no charge memo was served on him and that he was not given a chance to explain his defence in person and natural justice has been violated to him. In the present OP(KAT) also only such a similar contention was raised by the petitioner. Now the petitioner is agitating a ground in this review petition which has not been taken while filing an OA or at the time of filing an OP(KAT). Though no such contentions were raised before the Kerala Administrative Tribunal and before this Court, We are inclined to consider the said contention now raised in this review petition. This Court while passing the judgment in the OP(KAT) referred to the ## **R.P No.730 of 2022 4** judgment of the Apex Court in **Punjab National Bank v. Kunj Behari Misra (1998 (7) SCC 84** and also the judgment in **J.A.Naiksatam v. Prothonotary & Senior Master, High Court of Bombay and Others (2004) 8 SCC 653** . The Apex Court in a subsequent judgment in **J.A.Naiksatam's** case supra after referring to the judgment in **S.P.Goel's** case supra has considered a similar issue. In the said case, it was contended that an opportunity should be given to the delinquent before the report of the inquiry officer is reversed by the disciplinary authority and it is also argued that the appellant should be heard by the disciplinary authority before such decision was rendered. The Apex Court after considering the said contention held that if at all the disciplinary authority gave details of tentative decision before seeking explanation from the appellant, it enabled the delinquent to give an effective representation and the principles of natural justice were fully complied with and it cannot be said that the appellants were not being heard in the matter. Relevant portion of the said judgment in J.A.Naiksatam's case reads as follows: _“5. The learned counsel for the appellants contended that as per the Bombay High Court (Discipline and Appeal) Rules (for short “the Bombay Rules”), the appellants were entitled to get a_ ## **R.P No.730 of 2022 5** _copy of the report of the enquiry officer and they should have been heard OP(KAT) No.28 of 2022 10 before the same was accepted or rejected by the disciplinary authority. The contention was that by virtue of Rule 8, according to the appellants' counsel, though the report of the enquiry officer was furnished, the appellants were not given an effective opportunity to place their arguments against this and it was contended that even before the issuance of show-cause notice the disciplinary authority had made up his mind and had already taken a decision disagreeing with the enquiry officer and seeking an explanation from the delinquent officers was only an empty formality and there was thus serious violation of principles of natural justice._ _6. xxxxxx xxxxxx xxxxxx Relying on these decisions, the counsel for the appellants contended that after the receipt of the report from the enquiry officer, the disciplinary authority should have given notices to the appellants with its tentative conclusion and an opportunity be given to the delinquent before the report of the enquiry officer is reversed by the disciplinary authority. It was also argued that the appellants should have been heard by the disciplinary authority before such a decision was rendered. Even though the rule as such does not contemplate giving an opportunity to the appellant delinquents before the disciplinary authority takes a final decision to disagree with the reasons given by the enquiry officer, such a provision could be read into the rule but even then the appellants cannot be heard to say that there shall be a personal hearing by the disciplinary authority. In the instant case, the appellants were given a copy of the tentative decision of the disciplinary authority and the appellants furnished detailed explanation and we are of the view that the principles of natural justice have been fully complied with and we do not find any infraction of rules or infirmity in the said decision._ _7. The counsel further contended that from the tentative decision it could be spelt out that the disciplinary authority had already taken a final decision in the matter and the details have been given therein and the opportunity which was given to the appellants was only an exercise in futility. We are not inclined to accept this contention. It is true that the disciplinary authority gave its reasons for disagreement with the report of the enquiry - officer and the appellants had given their full fledged explanation and if at all the disciplinary authority gave detailed tentative decision before seeking explanation from the appellants, it enabled them to give an effective representation and the principles of natural justice were fully complied with and it cannot be said that the appellants were not being heard in the_ ## **R.P No.730 of 2022 6** _matter.” (underline supplied)_ A perusal of Annexure-A1 order imposing punishment would reveal that the disciplinary authority has given its clear reasons for not accepting the findings of the inquiry officer and a show cause notice was issued to the delinquent to submit his explanation and a perusal of the order would reveal that an explanation was also submitted by the delinquent and it is after hearing the delinquent that AnnexureA1 order was passed imposing the punishment of barring of increment with cumulative effect. In **J.A.Naiksatam's** case supra held that even though the disciplinary authority has given a detailed tentative decision without seeking explanation of the appellant as it has given an effective opportunity to represent, the principles of natural justice has been fully complied with. In the present case also before the punishment was imposed an opportunity of being heard was provided to the petitioner and the petitioner in fact submitted an explanation also and it is after considering the explanation offered by the review petitioner that the impugned order was passed. All these aspects have been considered in detail while passing the judgment in OP(KAT) No.28 of 2022. Therefore, we find n0 reason to review the order passed in OP(KAT) No.28 of 2022. It ## **R.P No.730 of 2022 7** is also the settled law as held in **N.Anantha Reddy v. Anshu Kathuria and Others (2013) 15 SCC 534** , that the review jurisdiction is extremely limited and unless there is a mistake apparent on the face of record the order/judgment does not called for review and that the review jurisdiction is not an appeal in disguise and a review does not permit rehearing on the matter on merits. In view of the same, we find no reason to entertain the review petition and the same is accordingly dismissed. sd/- ## **ALEXANDER THOMAS, JUDGE** sd/- ## **VIJU ABRAHAM, JUDGE** pm **R.P No.730 of 2022 8** ## **APPENDIX OF RP 730/2022** PETITIONER ANNEXURES Annexure I TRUE COPY OF THE SHOW CAUSE NOTICE NO. H2-P.R/20/07 DT. 20.07.2007