V. E. Surendranathan v. State of Kerala and Others (OP(KAT).No.102 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939** ## **OP(KAT).No. 102 of 2017 ()** **----------------------------------------AGAINST THE ORDER/JUDGMENT IN OA 1244/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 15.03.2017** ## **PETITIONER(S)/APPLICANT:** **----------------------------------------** **V.E.SURENDRANATHAN, AGED 62 YEARS, S/O. T.K. NANU, FORMER CIRCLE INSPECTOR OF POLICE, NEELESWARAM, KASARAGOD : 671 121, CURRENTLY RESIDING AT ESWARANILAYAM, PERUMKUNNAM P.O, KUZHALMANNAM (VIA), PALAKKAD - 678 702.** ## **BY ADVS.SRI.SHABU SREEDHARAN** **SRI.S.VIJAYAN SRI.V.PRINCE DEV SRI.M.RAHUL SRI.C.RAJESWARA KUMAR SRI.JINSON OUSEPH SMT.CHITRA VIJAYAN** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** **2. SECRETARY TO VIGILANCE(A) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 010.** **3. STATE POLIC CHIEF, POLICE HEAD QUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM, KERALA - 695 010.** **4. INSPECTOR GENERAL OF POLICE,** - **NORTHERN RANGE, OFFICE OF THE INSPECTOR GENERAL OF POLICE, NORTHERN RANGE, KANNUR DISTRICT, KERALA - 670 001.** ## **R BY SRI.T.RAJASEKHARAN NAIR, GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **OP(KAT).No. 102 of 2017 () -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE OA NO. 1244/2016 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **EXHIBIT P2: THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT DATED 03/08/2016.** - **EXHIBIT P3: THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT DATED 23/01/2017.** - **EXHIBIT P4: THE TRUE COPY OF THE REJOINDER TO EXHIBIT P2 FILED BY THE PETITIONER DATED 02/02/2017.** - **EXHIBIT P5: THE TRUE COPY OF THE REJOINDER TO EXHIBIT P3 FILED BY THE PETITIONER DATED 02/02/2017.** - **EXHIBIT P6: THE CERTIFIED COPY OF THE ORDER IN OA (EKM) NO. 1244/2016 DATED 15.3.2017 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL.** ## **RESPONDENT(S)' EXHIBITS - NIL** **TRUE COPY** ## **P.A.TO JUDGE** # **P.R.RAMACHANDRA MENON & SHIRCY V.,JJ.** ----------------------------------------------------------- O.P (KAT).No.102 of 2017 ---------------------------------------------------------Dated this the 5[th] day of July, 2017 ## J U D G M E N T ## **P.R.Ramachandra Menon, J.** Interference declined by the Tribunal as per Ext.P6 in the original application filed by the petitioner/applicant, challenging the punishment of compulsory retirement imposed upon him is sought to be intercepted in this original petition. 2. The learned counsel for the petitioner points out that the petitioner had entered service of the respondent/police as a Sub Inspector and thereafter he was promoted to the post of Circle Inspector. While serving as a Circle Inspector, some incident of serious delinquency was noted against him, particularly as to the alleged acceptance of bribe, which led to a vigilance enquiry by the Vigilance Tribunal. The Vigilance Tribunal, Kozhikode, after conducting an enquiry in terms of relevant points of law, recommended punishment of 'compulsory retirement' from service in terms of Rule 11(1)(VI) of Kerala Civil Service (Classification, Control and Appeal) Rules, 1960 (the proper rule which ought to have been applied was the Kerala _O.P (KAT).No.102/2017_ **2** Police Departmental Inquires, Punishment & Appeal Rules, 1958) and obviously, there was a misquoting of Rules. 3. The petitioner, on issuance of show-cause notice based on the findings in the enquiry, sought to challenge the same by filing O.P.No.3933 of 2001 before this Court, particularly with reference to the Rule cited in the said notice. The said original petition was disposed of enabling the petitioner to file proper representation to the Public Service Commission. On filing such representation the Public Service Commission advised the Government to proceed with further steps in accordance with the Kerala Police Departmental Inquires, Punishment & Appeal Rules, 1958 and not under the Kerala Civil Services (Classification, Control and Appeal) Rules. It was accordingly, that the matter was considered and finalized by passing Annexure-A1(a) order dated 05.10.2002 imposing punishment of 'compulsory retirement' to the petitioner. 4. The petitioner challenged the same by filing O.P.No.34248 of 2002 before this Court on various grounds. After hearing the parties, the order under challenge was set aside as per Annexure-A2 order dated 17.02.2006 and the matter _O.P (KAT).No.102/2017_ **3** was directed to be reconsidered, holding that a proper order was required to be passed after affording opportunity of hearing to the writ petitioner. It was accordingly that the matter was reconsidered, leading to Annexure-A7 order dated 11.01.2007, whereby the punishment of compulsory retirement was effected upon the petitioner. This made the petitioner to challenge the same by filing Annexure-A8 appeal; which was rejected as per Annexure-A9 order dated 16.10.2009. The petitioner approached this Court by filing W.P.(C).No.18976 of 2010 and when the matter was pending, on constitution of the Kerala Administrative Tribunal, the case came to be transferred to the Tribunal. The petitioner sought to withdraw the said application with liberty to file a fresh Original Application, which was granted. Accordingly, Ext.P1 original application was filed. After completing the pleadings, the Tribunal found that there was absolutely no merit or bona fides in the contentions raised by the applicant and accordingly, the Original Application was dismissed as per Ext.P6, which in turn is under challenge now. 5. The learned counsel for the petitioner points out that the Tribunal was not correct in passing Ext.P6 order, in so far as _O.P (KAT).No.102/2017_ **4** there was a specific direction given by this Court as per Annexure-A2 to have the matter considered afresh. In such circumstances, it was never open for the Department to proceed with further steps from the stage where it was found as effective and that a fresh enquiry ought to have been conducted. The learned counsel also points out that, in the first round of litigation, the various grounds projected by the petitioner were not considered and it was accordingly that they were directed to be considered by this Court. This has not been complied with and as such, the order passed by the authority is defective which ought to have been intercepted by the Tribunal, submits the learned counsel. Further grievance of the petitioner is that, no copy of the enquiry report was given to the petitioner at any point of time and as such, much prejudice has been caused to him in view of the violation of the principles of natural justice. 6. The learned Government Pleader submits that the entire aspects have been looked into by the Tribunal and an illustrative order has been passed as per Ext.P6. Reference is also made to the findings in Annexure-A1 enquiry report, which was not set aside by this Court; nor was it challenged from the _O.P (KAT).No.102/2017_ **5** part of the petitioner at any point of time when he approached this Court earlier or at the time of approaching the Tribunal. 7. After hearing both the sides, this Court finds that the factual sequence has been discussed in detail by the Tribunal in paragraph 1 to 3 of Ext.P6 verdict. The rival case projected by the parties has been discussed in paragraphs 4 and 5 and there is a specific observation that, Annexure A1 enquiry report was not challenged by the applicant/petitioner at any point of time. Various aspects to be considered as raised by the applicant have been looked into. Three different issues have been raised by the Tribunal in 'paragraph 6' which is extracted below: “On consideration of the facts, the documents and the rival submissions at the Bar it is found that the points that arise for consideration are: (1) whether the enquiry report which recommends a punishment as per a statute which does not govern the delinquent employee can be accepted. (2) Whether the enquiry proceedings had to be initiated afresh on the Hon'ble High Court interfering with the final order in the departmental proceedings. (3) Whether the first respondent could delegate the matter to a subordinate authority when the Hon'ble High Court directed it to consider the matter afresh. (4) Whether the final order Annexure A4 and the order in appeal have been issued in compliance with the provisions of the _O.P (KAT).No.102/2017_ **6** KPDIP & A Rules, 1958.” 8. The Tribunal held in 'paragraph 7' that the enquiry report was never challenged by the applicant and that there was no direction to have a fresh enquiry conducted in accordance with the relevant Rules. What was directed by this Court was only with regard to the order to be passed in accordance with the relevent rules, in so far as KCS & CCA Rules were not applicable. Thereafter, it was also held that the various points raised by the petitioner were not considered and hence, a fresh order was to be passed after affording an opportunity of hearing as mentioned in Annexure-A2 and that alone. It was accordingly, that the matter was considered affording an opportunity of hearing. The Tribunal also observed that there was absolutely no merit or bona fides in stating that, on passing Annexure-A2 order, it was not proper for the authorities to have banked upon the materials on record by proceeding further, instead of conducting a fresh enquiry. The law declared by the Apex Court in **ECIL v. B.Karunakar [(1993) 4 SCC 727]** was also adverted to by the Tribunal, holding that, if the enquiry was bad or defective in any manner, it would be open for the disciplinary _O.P (KAT).No.102/2017_ **7** authority to proceed with further steps from the stage were it was held as defective. It was accordingly, that the contention raised by the petitioner was repelled. 9. The sequence of events were noted by the Tribunal, especially with regard to the competency of the 4[th] respondent to have passed the order. Right from the beginning, it was contended by the petitioner that the Rule was wrongly applied and thereafter it was contended that it was not for the Government to pass orders and that as per the relevant Rules, it was only to be passed by the competent authority. It was accordingly, that the matter was placed by the Government, on reconsidering the matter in compliance with the direction of this Court, causing it to be considered by the 4[th] respondent competent authority. The said aspect has been dealt with by the Tribunal in paragraphs 10 and 11 in Ext.P6. The Tribunal was also held in paragraph 11 that the orders passed by the Disciplinary Authority by way of Annexure-A7 and the subsequent order by the Appellate Authority as per AnneuxureA9 were in conformity with the relevant Rules (KPDIP & A Rules 1958) and that there was no scope for interference. _O.P (KAT).No.102/2017_ **8** 10. With regard to the contention raised by the petitioner that no copy of the enquiry report was served to him, it has been observed by the Tribunal that there was no such case by the petitioner at any point of time earlier. Specific reference is also made to Annexure-A6 reply submitted by the petitioner in response to the notice and further Annexure-A8 appeal as well. Nowhere has it been stated by the petitioner that there was infringement of the principles of natural justice or the relevant rules in this regard. In the said circumstances, this Court finds that the said ground does not contain any water at all so as to call for interference. 11. Lastly, proportionality of the punishment has been dealt with by the Tribunal in paragraph 14 of the verdict under challenge, observing that the proven misconduct is a serious one, which warrants a major punishment in accordance with Rules. The gravity of the punishment is held as proportionate to the proved misconduct. There is force in the submission made by the learned Government Pleader with regard to the antecedents of the petitioner as well, as discussed in AnnexureA1 enquiry report. It is seen that the petitioner had joined _O.P (KAT).No.102/2017_ **9** service in the year 1981 and during the span of 17 years, he was awarded with various punishments (as many as 20 in number) as seen from the service records. This aspect has not been denied by the petitioner any where. More so, the findings in AnnexureA1 enquiry report have not been subjected to challenge. It is further to be noted that, unlike a criminal case, preponderance of probability is sufficient to arrive a finding in a disciplinary proceeding. There is no allergy even to hearsay evidence as made by the Apex Court in decision reported in **S.N.Nagarajulu v. Railway Board [1982 (2) LLJ 54]** . In the said circumstance, this Court finds that this is not at all a fit to call for interference invoking the power under Article 227 of the Constitution of India. Original petition fails and it is dismissed accordingly. Sd/- ## **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- **(SHIRCY V., JUDGE)** TRUE COPY P.A.TO JUDGE DG