State of Kerala v. K. Nazar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940 **OP(KAT).No. 119 of 2018** AGAINST THE ORDER IN OA 1282/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 22-08-2017 ## **PETITIONER(S)/RESPONDENTS IN OA** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695014. 3 THE INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, OFFICE OF THE INSPECTOR GENERAL OF POLICE, HIGH COURT JUNCTION, ERNAKULAM, PIN 682031 4 THE DISTRICT POLICE CHIEF, OFFIE OF THE DISTRICT POLICE CHIEF, CIVIL STATION, KOTTAYAM, PIN-686002. BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE ## **RESPONDENT(S)/APPLICANT IN THE O.A:** K.NAZAR, S/O YUSUF, VADAKKEDATHU HOUSE, MARAVANTHURUTHU P.O., VAIKKOM, KOTTAYAM DISTRICT, NOW RESIDING AT 'KEENAMPARAMBIL VEEDU'. THATHAPPALI ROAD, VALLASSERI, KADUTHURUTHI P.O., KOTTAYAM, PIN-686604, OBTAINED VOLUNTARY RETIREMENT WHILE WORKING AS SUB INSPECTOR OF PALA POLICE STATION, KOTTAYAM, PIN-686604,(MOB:9446023766) BY SRI.G.SIVASANKAR THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 119 of 2018 (Z) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE OA NO. 1282/2016 ALONG WITH ANNEXURE A1 TO A15 BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 10.07.2014 FILED BY THE FIRST RESPONDENT BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P3 COPY OF THE ORDER OF THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL DATED 22.08.2017. //TRUE COPY// Sd/- P.S. TO JUDGE ## K. SURENDRA MOHAN & ANNIE JOHN, JJ. - - - - - - - - - - - - - - - - - ## O.P.(KAT) No. 119 of 2018 - - - - - - - - - - - - - - - - - Dated this the 9[th] day of April, 2018 ## JUDGMENT ## Surendra Mohan, J. The State is before us challenging the order dated 22.08.2017 of the Kerala Administrative Tribunal, Thiruvananthapuram ('KAT' for short) in O.A. No. 1282 of 2016. As per the impugned order, the O.A. filed by the respondent has been allowed. 2. The respondent while working as Sub Inspector of Police was proceeded against departmentally. While working as Assistant Sub Inspector of Police (Grade) at Kaduthuruthi Police Station, he was placed under suspension alleging that he had accepted bribe for releasing an accused in a criminal case. Later on, he was reinstated in service following an enquiry in which he was exonerated. Thereafter, a criminal case had been filed against him alleging that he had O.P.(KAT) 119/2018 2 threatened the Sub Inspector over phone. He was acquitted by the Criminal Court, in the said case. However, disciplinary action was initiated against him simultaneously for threatening his superior officer and also for defaming him by publishing a news item in a vernacular daily. Though a domestic enquiry was conducted, the Enquiry Officer found that the respondent was not guilty. However, the disciplinary authority disagreed with the findings of the Enquiry Officer and issued Annexure A5 show cause notice proposing to impose a penalty of barring three increments with cumulative effect on the ground that the authority was convinced of the culpability of the respondent. Though Annexure A6 explanation was submitted, Annexure A7 was passed confirming the penalty imposed on him. An appeal, Annexure A8, preferred against the same was dismissed by Annexure A9. Annexure A11 review petition also met with the same fate as per Annexure A13 order. Annexures A7, A9 and A13 orders were under challenge in the O.A. A direction to release the Death Cum Retirement Gratuity O.P.(KAT) 119/2018 3 ('DCRG' for short) withheld by the authorities was also sought for. 3. The O.A. was contested by the petitioners. It was contended that, the disciplinary authority had specific reasons for disagreeing with the findings of the Enquiry Officer. The action was taken impartially and therefore there were no grounds for interference. 4. The KAT considered the respective contentions, found that since the disciplinary authority had disagreed with the findings of the Enquiry Officer, further action could have been initiated only after considering the explanation offered by the delinquent employee. Though he had submitted his explanation, the order imposing punishment had not considered the various aspects raised in the explanation. Therefore, the proceedings have been found to be unsustainable and set aside. 5. According to the learned Government Pleader, this is a case in which the delinquent employee had threatened O.P.(KAT) 119/2018 4 a superior officer, an act that could not be countenanced in view of the discipline that is required to be maintained in a uniformed force. Therefore, it is contended that, the order of the KAT requires to be interfered with and set aside. We also heard Sri. P. Nandakumar, who appears for the respondent. The learned counsel has placed reliance on the decision of a Division Bench of this Court in State of Kerala v. Venugopal (2002(1) K.L.T. 146), particularly paragraphs 4 and 5 to contend that, the provisions of the Rule ought to have been complied with. 6. Heard. In the present case, the respondent was admittedly exonerated at the domestic enquiry that was conducted. However, the disciplinary authority disagreed with the findings of the Enquiry Officer. The procedure to be followed by the authorities in such a case has been set out by the Division Bench in State of Kerala v. Venugopal (supra) in the following words: O.P.(KAT) 119/2018 5 “.... Disciplinary authority could accept the report or not accept the report. If disciplinary authority proposes not to accept the report necessarily it has to give reason why it is not accepting the report. The Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 placing reliance on the decision of the Apex Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 held that a delinquent officer is entitled to represent to the disciplinary authority where the findings in the enquiry report are against him. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard.” In the present case, however, no such opportunity was afforded to the respondent as rightly found by the KAT. In Annexure A5, the disciplinary authority has disagreed with the findings of the Enquiry Officer and has afforded an opportunity to the respondent to submit his explanation only O.P.(KAT) 119/2018 6 with respect to the punishment that was proposed against him. Even the explanation that was submitted by the respondent has not been considered properly in Annexure A7 order. The subsequent proceedings, Annexure A9 and Annexure A13 also have not considered the contentions of the respondent. Therefore, the orders Annexures A7, A9 and A13 in the O.A. were unsustainable and have been rightly set aside by the KAT. We do not find any grounds to interfere with the said orders. The consequent direction to release the DCRG to the respondent also cannot be found fault with. In the result, this O.P.(KAT) fails and is accordingly dismissed. Sd/- K. SURENDRA MOHAN JUDGE Sd/ANNIE JOHN JUDGE sb