IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15052 of 2009(B)
1. KURIAN,AGED 55 YEARS,POTTANPARAMBIL,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE INSPECTOR GENERAL OF POLICE,
3. THE SUPERINTENDENT OF POLICE,IDUKKI.
4. THE CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.RENJITH B.MARAR
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :10/06/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P(C) No. 15052 of 2009-B
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Dated this the 10th day of June, 2009.
J U D G M E N T
Heard Sri.L.Rajesh Narayan Iyer, the learned counsel appearing for
the petitioner and Smt.Anu Sivaraman, the learned Senior Government
Pleader appearing for the respondents.
2. The petitioner, a Driver in the Police Department was
prosecuted for offences punishable under the Abkari Act along with one
Smt.Radha with whom it is alleged, he was having adulterous
relationship. He and the said Smt.Radha were convicted by the IVth
Additional Sessions Court (Adhoc-II), Thodupuzha and sentenced to
undergo imprisonment for two years and to pay a fine of Rs.1,00,000/-
each. Simultaneously, departmental action was also initiated against the
petitioner. The enquiry into the charges levelled against the petitioner
was conducted and in the enquiry he was found guilty of the charges.
The petitioner and Smt.Radha were convicted by the trial Court by
judgment delivered on 8.1.2008. Thereafter, by Ext.P2 order dated
11.4.2008, the Superintendent of Police, Idukki, the competent
disciplinary authority, imposed on the petitioner the punishment of
removal from service. Aggrieved by Ext.P2 order the petitioner filed an
appeal before the Inspector General of Police, Ernakulam Range under
W.P(C) No. 15052 of 2009-B 2
Rule 36 of the Kerala Police Departmental Inquiries, Punishment and
Appeal Rules, 1958, hereinafter referred to as ‘Rules’ for short. The
petitioner also challenged the judgment of conviction and sentence
passed by the trial Court in S.C.No.132 of 2007 by filing Crl.A.No.341 of
2008 in this Court. By Ext.P3 judgment delivered on 22.8.2008 this
Court set aside the judgment of conviction and sentence passed by the
trial Court and acquitted the petitioner and the other accused giving them
the benefit of doubt. Thereafter, by Ext.P4 order passed on 9.1.2009
the Inspector General of Police, Ernakulam Range dismissed the appeal
filed by the petitioner from Ext.P2 order, removing him from service. The
petitioner again moved the Inspector General of Police, Ernakulam Range
by filing Ext.P5 review petition styled as one filed under Rule 36 of the
Rules. By Ext.P6 letter dated 18.4.2009, the Inspector General of Police,
Ernakulam Range informed the petitioner that Ext.P5 review petition does
not lie before him and that the remedy of the petitioner is to move the
Government. Along with Ext.P6, the original of Ext.P5 review petition and
the papers accompanying it were returned to the petitioner. This writ
petition was thereupon filed challenging Exts.P2, P4 and P6 and seeking a
writ in the nature of mandamus commanding the Inspector General of
Police, Ernakulam Range to consider Ext.P5 review petition and pass
orders thereon within a time limit to be fixed by this Court.
W.P(C) No. 15052 of 2009-B 3
3. Ext.P5 review petition is styled as one filed under Rule 36 of
the Rules, which provides that the authority to which an appeal against an
order imposing any of the penalties specified in Rule 15(1) lies, may of its
own motion or otherwise, call for the records of the case in a disciplinary
proceedings, review any order passed in such a case and, after
consultation with the Public Service Commission where such consultation
is necessary, pass such orders as deemed fit, as if the member of the
service has preferred an appeal against such order. The first proviso to
rule 36 provides that no application for review shall be entertained after
the expiry of a period of two months from the date of passing the order.
The second proviso to Rule 36 provides that no action under that rule
shall be initiated more than one year after the date of the order to be
reviewed. In the instant case, the petitioner had filed an appeal
challenging Ext.P2 order imposing penalty, before the appellate authority
namely the Inspector General of Police, Ernakulam Range. The said appeal
was filed invoking Rule 23 of the Rules, which confers on the petitioner
the right to file an appeal before the appellate authority. The said appeal
was rejected by Ext.P4 order passed by the appellate authority. Rule 36
does not in my opinion confer on the appellate authority, the power to
review its own orders. Rule 36 applies only in a case where the appeal
lies from an order imposing any of the penalties specified in Rule 15(1) of
W.P(C) No. 15052 of 2009-B 4
the Rules and the employee on whom the punishment was imposed does
not challenge the order imposing punishment in appeal, but moves the
appellate authority in review. In such cases Rule 36 empowers the
appellate authority to review the order of the original authority as if the
employee concerned has preferred an appeal against the said order. The
petitioner cannot therefore in my opinion, invoke the power of the
second respondent under Rule 36 and re-agitate the issue that was
concluded by Ext.P4 order passed on the appeal filed by him. The
petitioner ought to have in my opinion, invoked the power of the
Government under Rule 36A of the Rules. I am therefore persuaded to
hold that the petitioner cannot successfully assail Ext.P6 or seek a writ in
the nature of mandamus commanding the second respondent to consider
Ext.P5 review petition and pass orders thereon.
4. Rule 36A empowers the Government to review any order
passed by the subordinate authority which is made or is appealable under
these Rules. Since 36A confers on the petitioner the right to move the
Government, I am of the opinion that he should move the Government
seeking review of the orders passed by the original and appellate
authorities before seeking the intervention of this Court. I accordingly
dispose of this writ petition with the direction that in the event of the
petitioner filing a review petition before the Government within two
W.P(C) No. 15052 of 2009-B 5
months from today, the Government shall consider the same and pass
orders thereon after affording the petitioner a reasonable opportunity of
being heard. Final orders in the matter shall be passed within four
months from the date on which the petitioner files a review petition
before the State Government. The contentions of the petitioner on the
merits are kept open.
Sd/-
P.N.RAVINDRAN
JUDGE
//True Copy//
PA to Judge
ab