State of Kerala and Others v. C.B. Sasidharan (OP(KAT) No.131 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** **OP(KAT).No.131 OF 2020** **ARISING OUT OF THE ORDER DATED 11-06-2019 IN OA 1812/2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/ RESPONDENTS IN O.A.:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, THIRUVANANTHAPURAM, PIN-695010,** - **3 THE INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR, PIN-680001.** - **4 THE DISTRICT POLICE CHIEF (SUPERINTENDENT OF POLICE), THRISSUR RURAL, THRISSUR, PIN-680003.** ## **BY GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN THE O.A:** **C.B.SASIDHARAN AGED 58 YEARS S/O. C.V. BALAKRISHNAN, RETIRED SUB INSPECTOR OF POLICE(GRADE), (HC 3718), OLLUR POLICE STATION, THRISSUR, PIN-680306, RESIDING AT 'CHEMBAKAVEETTIL', MADHAVA ROAD, EDAKUNNY, OLLUR, THRISSUR, PIN-680306.** **OP(KAT).No.131 OF 2020** **2** **BY ADVS.** **R1 BY ADV. SRI.B.RAGHUNATHAN R1 BY ADV. SRI.M.SALIM R1 BY ADV. SRI.V.M.JACOB SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.131 OF 2020** **3** ## **ALEXANDER THOMAS & K.BABU, JJ.** ------------------------------------ OP(KAT) NO.131 of 2020 _[arising out of the order dated 11.06.2019 in O.A.No.1812 of 2014 on the file of KAT, Tvm Bench.]_ ---------------------------------- Dated this the 5[th] day of March, 2021 ## **JUDGMENT** ## ALEXANDER THOMAS, J. The prayers in the afore-captioned original petition filed under Articles 226 and 227 of the Constitution of India are as follows (See page No.9 of the paper book of the O.P.): _“1. To set aside the Exhibit P4 Order of the Kerala Administrative Tribunal in O.A.1812/2014._ _2. To dismiss the Exhibit P1 Original Application No.1812/2014 filed by the Respondent before the Kerala Administrative Tribunal, holding that the said Respondent is not eligible for any of the reliefs claimed in the Exhibit P1 Original Application._ _3. To declare that Exhibit P1 (A16) Order is valid and legally sustainable._ _4. Any other order or direction as this Honourable Tribunal may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Unnikrishna Kaimal, learned Government Pleader, appearing for the petitioners (State of Kerala and three others) in the O.P./respondents in the O.A. and Sri.B.Raghunathan, learned Advocate appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. 3. The prayers in Ext.P1 original application, O.A.No.1812 of 2014 filed by the respondent herein before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, are as follows (see page No.24 **OP(KAT).No.131 OF 2020** **4** of the paper book of the O.P.): - _“i. to issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Annexures A1, A8 & A16 and quash the same._ - _ii. to issue a writ of mandamus or other appropriate writ, order or direction to the 2[nd] & 3[rd] respondents to grant his due promotion to the posts of Assistant Sub Inspector and Sub Inspector of Police dehors Annexures A1 & A16 with all attendant benefits._ - _iii. to grant such other reliefs the applicant may pray for and which this Hon’ble Tribunal deems fit and proper in the circumstances of the case._ - _iv. to award the cost of the proceedings to the applicant.”_ 4. The Tribunal after hearing both sides has passed the impugned Ext.P4 final order dated 11.06.2019 in instant O.A.No.1812 of 2014, wherein it has been held that Annexure A16 penalty order dated 18.08.2014 rendered by R3 in the O.A. (Inspector General of Police), is illegal and ultra vires, as the same has been passed not in accordance with the specific directions issued by this Court in the previous round of litigation as per Annexure A14 final order dated 03.06.2014 rendered by the said Tribunal in O.A.No.303 of 2013 and has accordingly quashed the impugned Annexure A16 appellate order dated 18.08.2014 and has also thereafter quashed Annexure A8 order dated 10.04.2011 in the matter of regularisation of the period in question consequent to the disciplinary proceedings and has further directed the respondents in the O.A. to consider the case of the applicant for promotion and also for revision petition taking note of the orders of penalty, etc. The operative portion of Ext.P4 is contained **OP(KAT).No.131 OF 2020** **5** in para 12 thereof, which reads as follows (see page No.163 of the paper book). _“12. Annexures A16 cannot be sustained and the same is accordingly set aside. In view of quashing of Annexures A16, Annexure A8 order also cannot be survive. Respondents 2 and 3 are directed to consider the claim of the applicant for promotion and revision of pension taking note of the quashing of the orders of penalty. The applicant may submit an appropriate representation before the second respondent along with a copy of this order within one month and the second respondent shall consider the same and pass necessary orders within a period of three months from the date of receipt of the representation.”_ 5. It is this final order Ext.P4 rendered by the Tribunal in the above O.A. that is impugned in the present original petition. 6. R1 herein/the original applicant had entered service as Police Constable in the Police Department of State Government and while working as Assistant Sub Inspector of Police, he was placed under suspension from service as per order dated 03.10.2009 with effect from 19.09.2009 and later the impugned Annexure A1 memo of charges along with the statement of allegations dated 29.11.2009 was issued against him by the Superintendent of Police. Later, the oral/ departmental enquiry was conducted in accordance with the provisions contained in the Kerala Police Departmental Inquiries, Punishment and Appeal Rules and Annexure A3 show cause notice dated 05.10.2010 was issued to him along with the enquiry report in the matter and after consideration of Annexure A4 explanation dated 11.10.2010 submitted by the applicant in response to Annexure A3 show cause notice in the enquiry report, the disciplinary authority **OP(KAT).No.131 OF 2020** **6** concerned, viz. Superintendent of Police, had imposed Annexure A5 penalty order dated 28.01.2011 holding that the allegations raised against applicant in the memo of charges are proved and that the penalty of compulsory retirement from service was imposed on him. 7. It may not be out of place to note that earlier, after the imposition of the original penalty order as per Annexure A5 dated 28.01.2011 issued by the Superintendent of Police, the period of suspension from service, etc. was regularised by the competent authority as per Annexure A8 order dated 10.04.2011, whereby it was ordered that the period of suspension will be treated as duty for the limited purpose of pension and gratuity alone and to limit and regularise the salary during from the period the subsistence allowance already paid, etc. 8. Being aggrieved by Annexure A5 penalty order dated 28.01.2011, the applicant had preferred Annexure A13 appeal dated 11.02.2011, before the appellate authority concerned (Inspector General of Police), in terms of the provisions contained in the abovesaid Rules. The appellate authority had later passed the impugned Annexure A9 appellate order dated 18.06.2011, holding that the penalty of compulsory retirement imposed on the applicant as per Annexure A5 is too harsh and disproportionate and hence has ordered **OP(KAT).No.131 OF 2020** **7** that the said punishment will be modified and substituted with the lessor punishment of bar of increment for two years with cumulative effect and that the applicant shall be re-instated in service in view of the said modified punishment and that the period of compulsory retirement should be treated as duty for the limited purpose of calculation of pension and gratuity, etc. 9. The impugned Annexure A9 appellate order dated 18.06.2011 issued by the Inspector General of Police, reads as follows (see page Nos.90 to 91 of the paper book): ## _“PROCEEDINGS OF THE INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR._ _Present : Dr.B.Sandhya IPS_ _Sub:-Disciplinary action against Sri.Sasidhararn, Grade ASI (HC 3718) Appeal petition – disposed – reg._ _Read:- 1) Order No.H2-PR/69(A)/2009/R.dt 28.1.2011 of District Police Chief, Thrissur._ _2)Report No.H2/APL/2/2011 R dt.23.4.2011 of District Police Chief, Thrissur._ ## _ORDER NO.A2/APL/15/2011/TSR DATED 18.6.2011_ _(TSRO.246/2011/TSR)_ _Sri.Sasidharan, Grade ASI (here in after the appellant) while working in Ollur Police Station, on 1.7.2009 (it was a dry day) he collected a bottle of foreign liquor from one Bar hotel at Marathakara after contacting Supervisor of the Bar and he along with Driver HC Chandran consumed the liquor in a hotel. Moreover driver Chandran who introduced himself as Special Branch Officer contacted Highway Police Party over Mobile phone of Supervisor of the Bar giving directions to the Highway Police not to conduct vehicle checking near the Bar from which they collected the liquor._ _Thus he had committed serious misconduct and indiscipline._ _Subsequently he was dealt with an OE and was awarded a punishment of compulsory retirement by District Police Chief, Thrissur (Rural) as per reference read as 1[st] above._ _Now Sri.Sasidharan G ASI has preferred an appeal petition before the Inspector General of Police, Thrissur Range against order of District Police Chief, Thrissur wherein in he was awarded a punishment of compulsory retirement and the same along with connected records have been received from District Police Chief, Thrissur as per reference read as 2[nd] above._ _I have perused the appeal petition and connected records. The_ **OP(KAT).No.131 OF 2020** **8** _punishment awarded to the appellant by the disciplinary authority is too harsh. Hence I decide to reinstate Sri.Sasidharan Grade ASI (HC 3718) into service by modifying the punishment awarded to him by the disciplinary authority as Increment Bar for 2 years with cumulative effect. The period of compulsory retirement will be treated as duty for the limited purpose of calculation of pension and gratuity._ _Sd/-18.6.2011 Inspector General of Police, Thrissur Range._ _To_ _Sri.Sasidharan, G ASI through District Police Chief, Thrissur (Rural). He will report before District Police Chief, Thrissur (Rural) for posting orders._ - _Copy to:-District Police Chief, Thrissur in triplicate for causing service on the appellant and to return dated acknowledged copy to Range office early, Connected PR file H1-PR/69/A/09 R is returned herewith. Receipt of the same should be acknowledged. He will issue necessary posting orders and report compliance._ - _” :TSRO Book & TSRO File._ _//Approved for issue//_ _I/C Administrative Assistant. Thrissur Range.”_ 10. Being aggrieved by the said Annexure A9 impugned appellate order dated 18.06.2011, the applicant had preferred a review/revision before the Director General of Police, which in turn was dismissed by the said authority as per Annexure A12 order dated 06.10.2012. 11. Being aggrieved by the said order of punishment in the said disciplinary proceedings, the appellant had earlier preferred an original application as O.A.No.303 of 2013 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench. The Tribunal has after hearing both sides, has rendered Annexure A14 final order dated 03.06.2014 in **OP(KAT).No.131 OF 2020** **9** the said O.A.No.303 of 2013. 12. From the submissions made on behalf of the respondent herein/original applicant, it appears that being aggrieved by Annexure A9 appellate order dated 18.06.2011 issued by the Superintendent of Police as well as Annexure A8 order 10.04.2011 issued by the Superintendent of Police in the matter of regularisation of the period of suspension, etc., the applicant herein had earlier approached the Tribunal by filing O.A.No.303 of 2013. The Tribunal after hearing both sides has rendered the impugned Annexure A14 final order dated 03.06.2014 in O.A.No.303 of 2013, wherein the Tribunal has found conclusively that the rendering of the impugned Annexure A9 appellate order dated 18.06.2011 by the Inspector General of Police is without stating proper reasons and without taking into account the various parameters adumbrated in Rule 35 of the abovesaid Rules, cannot be countenanced in law and that therefore, the appellate order is liable to be quashed with the remit so that the appeal could be reconsidered and fresh orders passed thereon, strictly in accordance with the statutory parameters enshrined in Rule 35 of the Rules. In that regard, a reference to Rule 35 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules framed under the Public Service Act would be apposite. The said Rule 35 reads as follows : **OP(KAT).No.131 OF 2020** **10** _**“35. points to be considered by appellate authority.-** (1) In the case of an appeal against an order imposing any penalty specified in Rule 15 the appellate authority shall consider-_ _(a) whether the facts on which the order was based have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such order as it thinks proper:_ _Provided that-_ _(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (j), (ja), (k), (l) and (m) of sub-rule (1) of Rule 15 and an enquiry under Rule 6 by the authority specified in Rule 8 has not already been held in the case, the appellate authority shall itself hold such enquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such enquiry in the matter provided for in Rule 17 pass such orders as it may deem fit._ _(2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error or defect was not material and has neither caused injustice to the person concerned nor affected decision of the case.”_ 13. The operative portion of the impugned Annexure A14 final order dated 03.06.2014 rendered by the Tribunal in the previous round of litigation as per O.A.No.303 of 2013 reads as follows (see page No.127 and 128 of this paper book): _“In the light of the above statutory mandate, we notice that Annexure A9 order is clearly illegal. The last paragraph of Annexure A9 reads as follows:_ _“I have perused the appeal petition and connected records. The punishment awarded to the appellant by the disciplinary authority is too harsh. Hence I decide to reinstate Sri.Sasidharan Grade ASI (HC.3718) into service by modifying the punishment awarded to him by the disciplinary authority as_ **OP(KAT).No.131 OF 2020** **11** _Increment Bar for 2 years with cumulative effect. The period of compulsory retirement will be treated as duty for the limited purpose of calculation of pension and gratuity.”_ _7. Regarding the finding of guilt, there is no consideration by the appellate authority. The contention of the applicant that the punishment is grossly disproportionate to the gravity of the offence alone was considered by the appellate authority positively and a decision in favour of the applicant has been taken. For the failure of the appellate authority to consider the contentions of the applicant regarding the finding of guilt entered by the enquiry officer and its acceptance by the disciplinary authority, the impugned order Annexure A9 is vitiated. Accordingly, Annexure A9 is quashed and the appeal filed by the applicant is remitted to the third respondent for fresh disposal in accordance with law taking into account the mandate of Rule 35 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules which we have already quoted above. This the third respondent shall do after affording an opportunity of being heard to the applicant within two months from the date of receipt of a copy of this order. In view of our quashing of Annexure A9, Annexure A12 is no longer in force and it is so declared._ _The original Application is disposed of as above.”_ 14. In that regard, it is also pertinent to note that Rule 31 of the KCS (CCA) Rules contains also provisions similar as in Rule 35 of the KPDIP & A Rules. 15. A comparison of the said Rules would make it clear that the parameters mentioned in Clauses a to c of Sub Rule 1 of Rule 35 of the KPDIP & A Rules is broadly analogous to the parameters contained in Clauses a to e of Sub Rule 2 of Rule 31 of the CCS Rules. The corresponding provisions in pari materia or analogous terms are also contained in Rule 27 of the Central Civil Service (Classification, Control & Appeals) Rules. 16. A comparison of the provisions in Rule 27 of the CCS (CCA) and that in Rule 31 of the KCS(CCA) Rules would indicate that the **OP(KAT).No.131 OF 2020** **12** parameters covered in Rule 27(2) of the Central CCA Rules are broadly analogous to the parameters covered in Rule 31(2) of the KCS(CCA) Rules and that in Rule 35(1) of the KPDIP & A Rules, if not identically worded. 17. The Apex Court has occasion to consider the impact of the various parameters to be taken into account in the consideration and disposal of statutory appeal in terms of Rule 27 of the CCS (CCA) Rule in the decision in the case in **R.P. Bhatt v. Union of India** [(1986) 2 SCC 651]. Therein it has been held that the word 'consider' appearing in Rule 31(2) of the CCS (CCA) Rule implies due application of mind and the said Rule casts a statutory obligation and duty on the appellate authority to consider the relevant factors and parameters set forth in Clauses (a), (b) and (c) of Sub Rule (2) of Rule 27 of CCS (CCA) Rules. It may be relevant to refer to para Nos.3 to 5 of the decision in Apex Court in **R.P. Bhatt v. Union of India** [(1986) 2 SCC 651], which read as follows: _**“3.** Having heard the parties, we are satisfied that in disposing of the appeal the Director General has not applied his mind to the requirements of Rule 27(2) of the Rules, the relevant provisions of which read as follows:_ _“27. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider:_ - _(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;_ - _(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and_ **OP(KAT).No.131 OF 2020** **13** - _(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;_ - _and pass orders—_ - _(i) confirming, enhancing, reducing, or setting aside the penalty; or_ - _(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.”_ _**4.** The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such noncompliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof._ _**5.** There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.”_ ## 18. This Court in the decision as in **Sudhakaran v. Kerala** **State Road Transport Corporation** [2014 (2) KLT 5] has held, after placing reliance on the dictum laid down by the Apex Court in **R.P. Bhatt v. Union of India and Others** [(1986) 2 SCC 651] (supra) that the said legal principles enunciated thereon by the Supreme Court, would also apply in the case of consideration of statutory appeals in terms of Rule 31 of the KCS (CCA) Rules, which **OP(KAT).No.131 OF 2020** **14** was made applicable and adopted by the KSRTC in that case. Hence it can be noted that the Tribunal in Annexure A14 final order in the previous round of litigation, has followed broadly the abovesaid legal principles flowing out of statutory obligation and duty cast in the abovesaid Rules relating to consideration of statutory appeal in respect of disciplinary proceedings. 19. Later, in purported compliance of the directions issued by the Tribunal as per Annexure A14 final order dated 03.06.2014 in O.A.No.303 of 2013, the appellate authority concerned (viz. The Inspector General of Police) has passed Annexure A16 order dated 18.08.2014, without showing proper reasons and rather in a mechanical manner and without taking into account the specific directions and orders passed by this Court in Annexure A14 order in the matter of consideration of the various parameters contained in Clauses a, b & c of Rule 35(1) of the KPDIP &A Rules, etc. Thereafter, the applicant has challenged the impugned A16 appellate order dated 18.08.2014 and has filed the instant Ext.P1 O.A.No.1812 of 2014 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the aforementioned prayers including for quashment of the impugned Annexure A1 memo of charges. But the appellate authority at Ext.P16 has reduced the original penalty of compulsory retirement from service **OP(KAT).No.131 OF 2020** **15** ordered as per Annexure A9 and has stipulated in Annexure A16 appellate order that the modified punishment will be the penalty of barring of increment for two years with cumulative effect, etc. and thus it can be see that the appellate authority has passed a fresh appellate order as per impugned Annexure A16 dated 18.08.2014, reiterating the very same conclusions in the earlier appellate order at Annexure A12 dated 06.10.2012, which was quashed by the Tribunal as per Annexure A14 order dated 03.06.2014. 20. Thereafter, the applicant has filed the instant Ext.P1 O.A. No.1812 of 2014 with the aforementioned prayers mainly for quashment of the impugned Annexure A1 memo of charges, Annexure A8 order in the matter of regularisation of the suspension period as well as the fresh appellate order as per Annexure A16 dated 18.08.2014, etc. 21. The Tribunal after hearing both sides has rendered the impugned Ext.P4 final order dated 11.06.2019, which is under challenge in this case. 22. In the impugned Ext.P4 final order dated 11.06.2019 in O.A.No.1812 of 2014 the Tribunal, has referred to some of the contentions of the applicant that the finding of guilt is on the basis of scanty materials, etc. However, a mere reading of Ext.P4 makes it clear **OP(KAT).No.131 OF 2020** **16** like the day light that there are no findings by the Tribunal therein that the allegations in the memo of charges at Annexure A1 have not been proved at least with the minimal acceptable legal evidence and that the finding that the delinquent is guilty of the charges is perverse and unreasonable and is on the basis of “no evidence” etc. On the other hand, the main findings made by the Tribunal in Ext.P4 are that the Tribunal has again gone wrong in mechanically passing a fresh appellate order at Annexure A16, though with the modified and lower punishment penalty of barring of increment for two years with cumulative effect compared to the original penalty order at Annexure A9 imposed by the disciplinary authority. But that none of the parameters directed to be considered in terms of Rule 31(1) of the Rules as ordered in the previous round of litigation as per Annexure A14 order dated 03.06.2014 have been even remotely adverted to or considered by the appellate authority. Hence, it can be seen from a mere comparison of the findings in Annexure A14 order of the Tribunal in the previous round as well as Ext.P1 final order in the present round that the findings therein are to the effect that the appellate authority has not discharged its statutory duty to consider the various parameters as per the Rule and in accordance with previous verdict of the Tribunal at Annexure A14, etc. Hence, on this **OP(KAT).No.131 OF 2020** **17** basis, the Tribunal has found that the fresh appellate order at Annexure A16 cannot be legally sustained and the same shall stand quashed. However, without making any finding that there is not even minimal legally acceptable evidence to prove the allegations in Annexure A1 memo of charges, etc. the Tribunal has straight away set aside Annexure A8 order, which is not the original penalty order at Annexure A5, as Annexure A8 order is only a consequential order, regularizing the period of suspension consequent to the original penalty order at Annexure A5. Further, it appears that the original applicant had retired from service during the pendency of the present O.A. and the Tribunal as per Ext.P4 has directed that the claim of the applicant should be considered for promotion and also for revision of pension taking note of quashing of the orders of penalty. The Tribunal has made the approach as if the Tribunal has already found on the basis of well-conceived grounds in judicial review that there is no minimal acceptable evidence to prove the memo of charges in Annexure A1 to hold that the delinquent is guilty of the charges as found in the impugned orders, etc. and as if the very finding of guilt made in the impugned orders has also been quashed by the Tribunal, etc. The said finding of the Tribunal at para No.12 of Ext.P4 to the extent of even proceeding as if guilt has not been established in the **OP(KAT).No.131 OF 2020** **18** manner known to law, etc. and even issuing directions in the matter of consideration of the request for promotion and revision of pension, etc., is grossly illegal and improper. Sri.B.Raghunathan, learned counsel appearing for the respondent herein/original applicant would submit that if this Court is taking that view, then this Court may also direct that the quashment of Annexure A16 appellate order is to be upheld and that therefore, the appeal considered in Annexure A16 should be remitted to the appellate authority for consideration and decision afresh in accordance with law and in the light of Annexure A14 order and in the light of parameters mentioned in Rule 31(1) of the Rules and in the light of the afore-cited judgments of the Apex court and this Court, etc. The said submission made by Sri.B.Raghunathan, learned counsel appearing for the respondent herein/original applicant appears to be eminently fair, reasonable and just. Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners would also fairly not oppose the said submission made by the counsel for the original applicant. This is so, as the main attempt of the petitioners herein (State of Kerala and others) is that their main challenge is as against the consequential findings made by the Tribunal in para No.12 of Ext.P-4 to the extent of even proceeding as if the finding of guilt is illegal, improper, etc. After hearing both **OP(KAT).No.131 OF 2020** **19** sides, it appears that there cannot be any two opinions regarding the quashment of the fresh appellate order at Annexure A16 ordered by the Tribunal as per Ext.P(4) order. Annexure A16 has been passed mechanically in the same manner as in previous round of appellate order as per Annexure A12, which has been interfered with by the Tribunal at Annexure A14. A reading of Annexure A16 would make it clear that none of the parameters directed to be considered by the Tribunal at Annexure A14 order, as conceived in Rule 31(1) of the Rules, have been even remotely adverted to, considered and addressed by the appellate authority. True that the original penalty order of compulsory retirement from service imposed on the appellant as per Annexure A5 dated 28.01.2011 has been interfered with by the appellate authority as per Annexure A16 by reducing the same to penalty of baring of increment for two years with cumulative effect. But the issue regarding the finding of guilt or otherwise is not seen addressed by the Tribunal and none of the parameters covered by Annexure A14 order as well as in Rule 31(1) has been duly adverted to and considered by the appellate authority. Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners would point out that if this Court is sustaining the quashment of Annexure A16 and remitting the statutory appeal at Annexure A13 to the appellate **OP(KAT).No.131 OF 2020** **20** authority for consideration and decision afresh and in accordance with Annexure A14 order of the Tribunal, etc., then there is no necessity to quash Annexure A8 order, and the issue regarding Annexure A8 order need be considered only after the appellate authority passes fresh orders in Annexure A13 appeal and in case the said appellate order in any manner significantly favourable to the applicant, then Annexure A8 order may have to be reviewed and modified accordingly and that therefore, there is no necessity to uphold the quashment of Annexure A8 order, though the petitioners will not stand in the way of upholding the quashment of impugned Annexure A16 order. The said submissions made on behalf of the petitioners appear to be tenable. Accordingly, the following directions and orders are passed. - _i) The impugned Ext.P4 final order rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench dated 11.06.2019 in O.A.No.1812 of 2014 to the extent it has quashed the impugned fresh appellate order at Annexure A16 will stand upheld and sustained._ - _ii) However, the other consequential directions issued by the Tribunal in para No.12 of Ext.P4 to the extent of proceeding as if even the guilt of the delinquent is not established in the manner known to law, etc. and for a direction in the matter of consideration for promotion and revision of pension of the petitioner, etc. and the interference with Annexure A8, etc. will stand set aside. It is made clear that those matters including_ **OP(KAT).No.131 OF 2020** **21** _that in relation to Annexure A8 need be considered by the competent authority among the petitioners depending upon the outcome of Ext.P13 appeal to be decided by the appellate authority afresh as directed now._ - _(iii) Further, it is ordered that Annexure A13 appeal dated 11.02.2011 filed by the applicant before the appellate authority (Inspector General of Police) will stand remitted to the said appellate authority for consideration and decision afresh._ - _(iv) The applicant is permitted to file written submissions in the matter dealing with his various contentions both regarding the issue of guilt as well as various aspects covered by Annexure A14 order of the Tribunal as well as various parameters mentioned in Rule 31(1) of the Rules, etc. Written submissions shall be filed by the applicant within two weeks along with the certified copy of this judgment from the date notified for receiving copy of this judgment._ - _(v) The appellate authority viz. Inspector General of Police will thereafter afford reasonable opportunity of being heard to the applicant either in person or through his authorized representative/ counsel, if any, if so chosen by him, and should advert to the various aspects in the matter as to whether the materials on record in the enquiry report, etc. and disciplinary proceedings will justify the findings of guilt, etc. and also should take into account various parameters covered by Rule 31(1) of Rules and the various matters dealt with in Annexure A14 order of the Tribunal and then should pass a wellconsidered order on all issues of the matter including that regarding the issue of guilt or otherwise of the delinquent as_ **OP(KAT).No.131 OF 2020** **22** _well as the other consequential issues thereon, in accordance with law, without much delay, preferably within an outer time limit of three months from the date of production of a certified copy of the judgment. The orders and findings of Tribunal at Ext.P4 will stand modified as above._ With these observations and directions, the above original petition will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE Sd/K. BABU JUDGE** **==> picture [19 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> SCS<br>**----- End of picture text -----**<br> **OP(KAT).No.131 OF 2020** **23** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OA NO.1812/2014 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** ## **ANNEXURES** **EXHIBIT P1(A1)** **TRUE COPY OF THE MEMO OF CHARGES ALONG WITH THE STATEMENT OF ALLEGATIONS NO.46/GL/ECO/09 DATED 29.11.2009.** **EXHIBIT P1(A1)(a) TRUE ENGLISH TRANSLATION OF ANNEXURE A1. EXHIBIT P1(A2) TRUE COPY OF THE WRITTEN STATEMENT OF** **TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE SUBMITTED BY THE APPLICANT DATED 27.03.2010.** **EXHIBIT P1(A2)(a) TRUE ENGLISH TRANSLATION OF ANNEXURE A2 EXHIBIT P1(A3) TRUE COPY OF SHOW CAUSE NOTICE** **TRUE COPY OF SHOW CAUSE NOTICE NO.H2/PR/69/A/09/R DATED 05.10.2010 OF THE 4TH RESPONDENT ALONG WITH THE ENQUIRY REPORT (PR MINUTES).** **EXHIBIT P1(A3(a) TRUE ENGLISH TRANSLATION OF ANNEXURE A3. EXHIBIT P1(A4) TRUE COPY OF THE EXPLANATION SUBMITTED** **TRUE COPY OF THE EXPLANATION SUBMITTED BY THE APPLICANT DATED 11.10.2010.** **EXHIBIT P1(A4)(a) EXHIBIT P1(A5)** ## **TRUE ENGLISH TRANSLATION OF ANNEXURE A4** **TRUE COPY OF ORDER NO.H2/PR/69/A/2009/R DATED 28.01.2011 OF THE 4TH RESPONDENT.** **EXHIBIT P1(A5) (a) EXHIBIT P1(A6)** **TRUE ENGLISH TRANSLATION OF ANNEXURE A5** **TRUE COPY OF SHOW CAUSE NOTICE NO.H2/PR/69/A/09/R DATED 06.04.2011 OF THE 4TH RESPONDENT.** **EXHIBIT P1(A6)(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A6 EXHIBIT P1(A7) TRUE COPY OF THE EXPLANATION SUBMITTED** **TRUE COPY OF THE EXPLANATION SUBMITTED TO THE SHOW CAUSE NOTICE TO THE 4TH RESPONDENT DATED 07.04.2011.** **OP(KAT).No.131 OF 2020** **24** **EXHIBIT P1(A7) (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A7 EXHIBIT P1(A8) TRUE COPY OF ORDER NO.H2/PR/69/A/2009/R** **TRUE COPY OF ORDER NO.H2/PR/69/A/2009/R DATED 10.04.2011 OF THE 4TH RESPONDENT.** - **EXHIBIT P1(A8)(a) TRUE ENGLISH TRANSLATION OF ANNEXURE A8 EXHIBIT P1(A9) TRUE COPY OF THE ORDER** **TRUE COPY OF THE ORDER NO.A2/APL/15/2011/TSR DATED 18.06.2011 OF THE 3RD RESPONDENT.** - **EXHIBIT P1(A10)** - **TRUE COPY OF THE REVIEW PETITION DATED 15.07.2011 TO THE 2ND RESPONDENT.** - **EXHIBIT P1(A10) (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A10 EXHIBIT P1(A11) TRUE COPY OF THE ORDER DATED 23.08.2012** - **TRUE COPY OF THE ORDER DATED 23.08.2012 IN OA NO.1514/2012.** - **EXHIBIT P1(A12)** - **TRUE COPY OF ORDER NO.G6/68121/2011 DATED 06.10.2012 OF THE 2ND RESPONDENT.** - **EXHIBIT P1(A13)** - **TRUE COPY OF THE APPEAL PETITION SUBMITTED TO THE 3RD RESPONDENT DATED 11.02.2011.** - **EXHIBIT P1(A14)** - **TRUE COPY OF THE ORDER IN OA 303/2013 OF THE HON'BLE KAT DATED 03.06.2014.** - **EXHIBIT P1(A15)** - **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT DATED 23.06.2014.** - **EXHIBIT P1(A16)** **TRUE COPY OF ORDER NO. A2-7392/2014/TSR DATED 18.8.2014 OF THE 3RD RESPONDENT.** - **EXHIBIT P1(A16)(a) TRUE ENGLISH TRANSLATION OF ANNEXURE A16** - **EXHIBIT P2** - **TRUE COPY OF THE REPLY STATEMENT DATED 10.12.2015 FILED BY THE FIRST PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT DATED 25.02.2017** **EXHIBIT P4** **CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 11.06.2019 IN O.A.No.1812/2014**