State of Kerala and Others v. R. Syam Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **OP(KAT).No.341 OF 2017(Z)** **AGAINST THE JUDGMENT IN TA 6266/2012 DATED 15-11-2016 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIATE, THIRUVANANTHAPRUAM, PIN 695 014, KERALA** - **2 THE INSPECTOR GENERAL OF POLICE ARMED POLICE BATTALIONS, THIRUVANANTHAPURAM, PIN 685 005, KERALA** - **3 COMMANDANT, SPECIAL ARMED POLICE, THIRUVANANTHAPURAM, PIN 685 005, KERALA** **BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH** ## **RESPONDENT/S:** **R. SYAM KUMAR, PCT 2754, ARMED RESERVE CAMP, THIRUVANANTHAPRUAM RURAL, PULINKUDY, KERALA 695 001.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.L.ANNAPOORNA R1 BY ADV. SMT.B.ANANJANA R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(kat)341/2017 ..2.. ## **JUDGMENT** ## **K.VINOD CHANDRAN,J.** The Tribunal, in the impugned order only directed re-consideration of the review filed by the applicant under the Kerala Police Departmental Inquires (Punishment and Appeal) Rules, 1958. The Tribunal directed the Government to take a decision independent of the recommendation of the Kerala Public Service Commission (KPSC). The Government has filed an appeal since the findings of the Tribunal to the effect that the Government need not consult the KPSC in an appeal or review is not the dictum as laid down in _**Deputy Director General, N.C.C.**_ v. ## _**K.V.Gopinathan [2006(3)KLT 247]**_ . OP(kat)341/2017 ..3.. 2. On facts, it has to be noticed that the petitioner; a Police Constable was alleged to have entered a Police Station without authorisation and talked to a person kept in custody, in the lockup and that he interfered with the functions of the Station House Officer {SHO} of that Police Station. The allegation as to interference with the duties of the SHO was found not proved in the Punishment Roll Minutes, on the evidence adduced at the enquiry. However, the unauthorised entry into a Police Station to converse with a person in the lockup was found against the applicant. The Tribunal too concurred with the findings in the enquiry, while considering the order passed by the Government on review. OP(kat)341/2017 ..4.. 3. The punishment imposed was of withholding of three increments with cumulative effect. An appeal filed by the applicant having been rejected, a review was filed before the Government. The Government in the review, proposed to reduce the punishment to withholding of two increments without cumulative effect. The Government, in accordance with the Kerala Public Service Commission (Consultation) Regulations, 1957 (herein after referred to as 'the Consultation Regulations' for short), sought the opinion of the KPSC. The KPSC diferred with the Government and recommended imposition of the punishment as imposed by the original authority. The Government taking the recommendation to be binding on it, upheld the punishment as imposed by the original OP(kat)341/2017 ..5.. authority. The Tribunal found on the basis of _**K.V.Gopinathan**_ (supra) that the Government could take a decision, un-tramelled by the recommendation of the KPSC since the obligation to consult the KPSC was only when the Government was the original authority. 4. We have gone through _**K.V.Gopinathan**_ (supra), in which the contention raised by the petitioner/appellant therein was that the order of punishment imposed by the Deputy Director General of NCC was nonest, for reason of there being no consultation with the KPSC. The Division Bench looked at Rule 6(1) of the Consultation Regulations and found that an order passed by any authority other than the Government need not be preceded by a consultation with the KPSC. Reading from the OP(kat)341/2017 ..6.. provision, it was found that only when the Government passes an original order, the consultation as required under Rule 6 is mandatory. There cannot be any corollary taken that only when the original order is passed by the Government there should be consultation and there is no requirement in an appeal revision or review, especially looking at the entire Rule as is available in the Consultation Regulation. We extract here under Rule 6(1)(b) and (c). ## xxxxxx 6(1)(b) Where the Government propose to pass an order in appeal or revision [or review] imposing any of the penalties referred to in sub-clause (a); or (c) where in an appeal or revision from [or review of] an order which has imposed any of the penalties referred to OP(kat)341/2017 ..7.. in sub-clause (a) Government propose to pass any order. 5. Clause(c) is what is applicable to the present case. Here, the original authority had imposed a punishment of withholding of three increments with cumulative effect, which did not require any consultation with the KPSC for reason of the order being passed by an Officer under the Government, who is the Disciplinary Authority of the delinquent as distinguished from the Government. However, if the Government had passed that original order, it would have required consultation. Similarly, if the Government is dealing with an appeal, revision or review of an order, which, by the nature of the penalty imposed, if originally passed by the Government require consultation, then OP(kat)341/2017 ..8.. again, the consultation is mandatory. We find the consultation sought for by the Government to be proper. 6. However, we also have to notice that going by the binding precedents, if in a consultation, the KPSC differs from the opinion of the Government, the Government could always stick to its opinion, after recording sufficient reasons. The Government is not bound by the recommendation of the PSC. 7. On the above reasoning, we interfere with the order of the Tribunal, only to the extent it held the consultation to be not mandatory, but all the same direct the Government to independently take a decision and if it is against the recommendation of the KPSC, then give sufficient reasons for so OP(kat)341/2017 ..9.. doing. A decision shall be taken within a period of three months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. The parties to suffer their respective costs. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** SB/21/11/2019 OP(kat)341/2017 ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF THE T.A NO. 6266/2012 ANNEXURE A2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT** - **ANNEXURE A3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE GOVERNMENT** **ANNEXURE A4 TRUE COPY OF THE ORDER IN T.A NO. 6266/2012 DATED 15-11-2006** **EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES WITH THE STATEMETN OF ALLEGATIONS APPENDED EXHIBIT P2 TRUE COPY OF THE EXPLANATION EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE EXHIBIT P4 TRUE COPY OF THE DETAILED REPLY DATED 27.2.2014 EXHIBIT P5 TRUE COPY OF TH EORDER NO. H1/PR1/03-S DATED 5.7.2004 EXHIBIT P6 TRUE COPY OF THE MEMORANDUM APPEAL EXHIBIT P7 TRUE COPY OF THE ORDER NO. A2/12392/04 APB EXHIBIT P8 TRUE COPY OF THE REVIEW PETITION EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER RESPONDENTS EXTS: NIL // TRUE COPY // P.A TO JUDGE**