IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 736 of 2009()
1. STATE OF KERALA, REP. BY ITS
... Petitioner
2. DIRECTOR GENERAL OF POLICE,
3. SUPERINTENDENT OF POLICE,
Vs
1. IVAN RATHINAM S/O. RATHINAM PILLAI,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :08/04/2009
O R D E R
K.BALAKRISHNAN NAIR &
M.L.JOSEPH FRANCIS, JJ.
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W.A. NO. 736 OF 2009
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Dated 8th April, 2009.
JUDGMENT
Balakrishnan Nair, J.
The respondents in the Writ Petition are the appellants. The writ
petitioner is the respondent herein. The learned Single Judge by the
judgment under appeal, quashed Ext.P11 order of the Government dated
16.12.2008, as per which the respondent/writ petitioner was suspended from
service, pending decision in the disciplinary enquiry going on against him.
Aggrieved by the said decision of the learned Single Judge, the official
respondents in the Writ Petition have filed this Writ Appeal.
2. The brief facts of the case are the following. The respondent filed
the Writ Petition, making the following pleadings. He is presently working
as Assistant Commandant in the Armed Police at Malappuram. He joined
the police in 1991 and has rendered meritorious service for more than 17
years. He has received several good service entries. While so, a lady,
hereinafter referred to as Mrs.X, started filing complaints against him
WA 736/2009 2
repeatedly before various authorities. She is married to Mr.Y and two
children are born in that wedlock. The respondent is also married and is
living with his family at Alappuzha. The main complaint raised against him
by Mrs.X was that he has committed adultery with her and her second son
Master Z was born out of that relationship. She has moved superior police
officers, demanding action against him. She has also filed a private
complaint before the competent criminal court, alleging that the respondent
has physically attacked and manhandled her and her son. She has filed a suit
before the competent Munsiff’s Court, seeking a declaration that the
respondent is the father of her second child. She has moved the Family
Court, claiming maintenance. She moved the Women’s Commission,
seeking action against him. The District Police Complaints Authority,
Alappuzha was also moved. The respondent submitted that the allegations
of manhandling, etc. made against him by Mrs.X were enquired into by the
Deputy Inspector General of Police, Ernakulam Range. It was found that
the allegations were unfounded. He further submitted that the complaint
before the Women’s Commission was also closed. The District
Superintendent of Police, Alappuzha has also held an enquiry into some of
the allegations against the respondent. They were also found to be baseless.
But, the District Police Complaints Authority filed Ext.P8 report dated
WA 736/2009 3
3.5.2008, making certain prima facie findings against him and suggesting
initiation of disciplinary action. Apparently, based on that report, he has
been served with Ext.P1 memo of charges dated 26.8.2008. The allegation
against him was that he had adulterous relationship with Mrs.X for the last
few years, while he was working as Assistant Commandant in the District
Armed Reserve. He is alleged to be the father of the second child of Mrs.X.
Abusing his official position, he has manhandled the said child and also
defamed Mrs.X. By the above conduct, he has marred the good name of the
police force and has committed gross misconduct, disclosing moral
turpitude.
3. An enquiry officer was appointed to enquire into the charges.
While the enquiry was progressing, allegedly under the influence of Mrs.X,
the Director General of Police filed a report before the Government and
based on that report, the Government suspended him by Ext.P11 order. The
relevant portion of that order reads as follows:
“As per the order read as 1st paper above an Oral Enquiry
was ordered against Sri.Ivan Rathinam, Assistant
Commandant, Armed Reserve, Malappuram for his official
misconduct and moral turpitude. Later, Director General of
Police has, as per the letter read as 2nd paper above, reported
that the Police Complaints Authority had made some serious
observations on his moral turpitude and official misconduct
and recommended departmental action against him. The
Director General of Police has also pointed out that theWA 736/2009 4
continuance of the officer in service is undesirable and hence
recommended to place him under suspension.
In the circumstance Government order that Sri.Ivan
Rathinam, Assistant Commandant, Armed Reserve,
Malappuram be placed under suspension with immediate effect
under Rule 7(1)(a) of the KPDIP & A Rules, 1958, in public
interest, pending final decision in the Oral Enquiry ordered.”
4. The respondent filed the Writ Petition, challenging the
suspension order Ext.P11. He stated that all the allegations in the charge
memo are unfounded. At any rate, they cannot be the subject-matter of any
disciplinary action. He has been suspended because of the political
influence of the father of Mrs.X. He was already transferred from
Ernakulam to Malappuram. The enquiry is almost over. Therefore, there
was no necessity to suspend him. So, the suspension is vitiated. Based on
these and other grounds, the Writ Petition was filed, challenging the
suspension order.
5. The appellants/respondents filed a counter affidavit. They
submitted that the respondent/writ petitioner was suspended on valid
grounds. In an enquiry conducted by the Inspector General of Police,
Ernakulam Range, it was disclosed that the respondent had illicit
relationship with Mrs.X. The Police Complaints Authority also, prima
facie, found that the respondent had adulterous relationship with Mrs.X.
WA 736/2009 5
Therefore, the respondent was suspended from service. In the counter
affidavit, it is stated as follows:
“Government found that the continuance of the petitioner in
service would become an obstacle for the smooth conduct of
the enquiry. Moreover, it is against the public interest to
allow a Government employee to continue in service, who
possessed extra-marital relations, which became public and
seriously observed by a legally constituted body like Police
Complaints Authority.”
The respondent was transferred on 24.5.2008 to Malappuram, long before
the initiation of the disciplinary proceedings. This has nothing to do with
the enquiry ordered against him, it was submitted. The official respondents
denied the allegations against them and supported the suspension order as
one passed in accordance with law.
6. The learned Single Judge, after hearing both sides, allowed the
Writ Petition by the judgment under appeal. The learned Judge noted that
since the respondent is working in Malappuram, the chances of his
interfering with the enquiry or influencing the witnesses are remote.
Therefore, it was unnecessary to suspend him. The Government failed to
notice the above aspect before ordering his suspension. So, it was found
that the suspension order was passed only to victimise the respondent and it
amounted to abuse of the power vested in the Government. At any rate, it
was held that there was no administrative necessity to place him under
WA 736/2009 6
suspension on the date of Ext.P11. Based on the above findings, Ext.P11
order was quashed.
7. The appellants preferred this appeal, seriously aggrieved by the
above findings of the learned Single Judge. According to them, if the above
findings of the learned Judge are allowed to stand, the disciplinary action
itself will become a futile exercise. Further, it is pointed out that whether
the delinquent will influence the witnesses or interfere with the enquiry, is
only one of the relevant considerations. There are other considerations as
well, which are relevant. It is against public interest to retain such an
officer in service, whose adulterous relationship has become public. So, the
appellants prayed for allowing the appeal.
8. We heard the learned counsel on both sides. The learned
Government Pleader Mr.Benny Gervasis highlighted the above contentions
of the appellants. The learned counsel for the respondent Mr.Dinesh R.
Shenoy reiterated the contentions raised in the memorandum of Writ
Petition, which were upheld by the learned Single Judge.
9. Going by the judgment under appeal, we feel that the Court has
exercised appellate function over the administrative decision of the
Government, contained in Ext.P11. Before examining this aspect in depth,
we would first re-state some fundamental principles governing judicial
WA 736/2009 7
review. The doctrine of ultra vires is the basis of judicial review. The
superior courts of England claimed inherent power to examine whether the
actions of inferior Tribunals and statutory authorities were taken within the
limits of their powers. If any action taken by them was found to have
exceeded the limits of their power, such actions were condemned as ultra
vires,unauthorised and therefore,void by the Courts. The juristic foundation
of judicial review is the concept of ultra vires. Professor H.W.R. Wade and
C.F. Forsyth in Administrative Law, 9th Edition, stated as follows:
“The simple proposition that a public authority may not act
outside its powers (ultra vires) might fitly be called the central
principle of administrative law. The juristic basis of judicial
review is the doctrine of ultra vires. To a large extent, the courts
have developed the subject by extending and refining this
principle, which has many ramifications and which in some of
its aspects attains a high degree of artificiality.”
De Smith, Woolf and Jowell, in Judicial Review of Administrative Action,
have stated:
“In essence, the doctrine of ultra vires permits the courts to
strike down decisions made by bodies exercising public
functions which they have no power to make. Acting ultra
vires and acting without jurisdiction have essentially the same
meaning, although in general the term ‘vires’ has been
employed when considering administrative decisions and
subordinate legislative orders and ‘jurisdiction’ when
considering judicial decisions, or those having a judicial
flavour.”
10. In this case, admittedly, the Government have power under Rule
WA 736/2009 8
7 of the Kerala Police Departmental Inquiries, Punishment and Appeal
Rules, 1958, to suspend the respondent. Rule 7 of the said Rules reads as
follows:
“7.(1) The appointing authority or any authority to
which it is subordinate or any other authority empowered by
the Government in this behalf, may place a member of a
Service under suspension, where–
(a) an inquiry into his conduct is contemplated, or is
pending, or
(b) a complaint against him of any criminal offence is
under investigation or trial.
(2) A member of a Service who is detained in custody
whether on a criminal charge or otherwise, for a period longer
than forty-eight hours shall be deemed to have been suspended
by the appointing authority under this rule.
(3) An order of suspension under sub-rule (1) may be
revoked at any time by the authority making the order or by any
authority to which it is subordinate.”
A contention was sought to be urged to the effect that once the enquiry is
over, the suspension cannot be continued, in view of the words contained in
clause (a) of sub-rule (1) of Rule 7. We find it difficult to accept that
contention. Suspension is permissible even in contemplation of disciplinary
proceedings. So, it can continue till the disciplinary authority passes final
orders. The enquiring authority holds the enquiry for the disciplinary
authority. The disciplinary authority, on receipt of the enquiry report,
WA 736/2009 9
decides whether the same may be accepted or not and after following due
procedure, passes the final order. The enquiry will be over in substance
only when final orders are passed. If the delinquent is to be reinstated
immediately after the enquiry by the enquiring officer is over, the same will
produce an anomalous result, that is, the first part of the above said clause
enables suspension, even in contemplation of an enquiry, whereas the latter
part does not permit continuance of the suspension after the completion of
the enquiry by the enquiry officer, even if the delinquent is found guilty.
So, we feel that it will be irrational to interpret the rule to mean that the
suspension cannot be continued till the final orders are passed.
11. But, a public authority having jurisdiction to do something, while
doing that something, may step outside its jurisdiction and the same will
render its decision ultra vires and therefore, it will become a nullity. In this
context, it is apposite to quote a few words from the speech of Lord Pearce
in the House of Lords in Anisminic Ltd. v. Foreign Compensation
Commission [1969(2) AC 147]. The relevant portion of the said speech
reads as follows:
“Lack of jurisdiction may arise in many ways. There
may be an absence of those formalities or things which are
conditions precedent to the tribunal having any jurisdiction to
embark on an inquiry. Or the tribunal may at the end make anWA 736/2009 10
order that it has no jurisdiction to make. Or in the intervening
stage, while engaged on a proper inquiry, the tribunal may
depart from the rules of natural justice; or it may ask itself the
wrong questions; or it may take into account matters which it
was not directed to take into account. Thereby it would step
outside its jurisdiction. It would turn its inquiry into something
not directed by Parliament and fail to make the inquiry which
Parliament did direct. Any of these things would cause its
purported decision to be a nullity.”
If the Government have failed to advert to the relevant matters or have taken
into account irrelevant matters, the decision will be vitiated. According to
the respondent, the Government did not take into account the relevant
matter that he is working in Malappuram and therefore, the suspension was
unnecessary. The Government also failed to notice that the enquiry was
almost over and therefore, the suspension, which was meant to prevent
interference with the enquiry, was unwarranted. The above contention has
been accepted by the learned Single Judge. But, we find it difficult to
accept the above proposition. A police officer in service, irrespective of
whether he is working in Ernakulam or Malappuram, can influence the
conduct of the enquiry and also the witnesses. We notice that in Ext.P3
enquiry report submitted by the Deputy Inspector General of Police, it is
seen that the said officer has questioned a lady residing in the
neighbourhood of the respondent. She has deposed that she has not seen the
alleged incident. A lady residing in the neighbourhood of a senior police
WA 736/2009 11
officer, going by normal human conduct, would not dare to depose against
him. So, if a police officer, even if transferred out, if he is continuing in
service, can be a cause of influence on the witnesses. So, the finding that
because of his transfer to a distant place, the suspension of the respondent is
unwarranted, is unsustainable. Even assuming that the enquiry is over and
therefore, there is no question of influencing any witnesses, still, we feel
that there is yet another important reason for keeping the delinquent officer
under suspension. When a senior police officer is accused of serious
offences involving moral turpitude, it is in public interest to keep him
outside the force. His presence will sully the discipline of the force and
show it in poor light in the eyes of the general public. So, public interest,
being an overriding consideration, demands that such officers, especially,
in disciplined police force, accused of serious derelictions, should be kept
out. This very important aspect, which was highlighted in the counter
affidavit, also was not noted by the learned Judge.
12. Even if a public authority has jurisdiction to do something, if it
acts in a manner, which no man in his senses will do, then its action can be
safely described as ultra vires and unauthorised. We cannot say Ext.P11 is
so arbitrary or irrational or “so absurd that no sensible person could ever
dream that it lay within the powers of the authority” (Lord Green M.R. in
WA 736/2009 12
Associated Provincial Picture House, Ltd. v. Wednesbury Corpn., 1948
(1) KB 223). We notice the prima facie findings made by the Police
Complaints Authority against the respondent in Ext.P8. The Police
Complaints Authority consists of a retired District Judge, an I.A.S. officer
and an I.P.S. officer. Their findings against the respondent are summarized
as follows:
(i) He failed to deny the execution of letters in possession of
Smt. X alleged to have been sent by him which disclose that he
is the father of the child.
(ii) There was a series of photographs of the child and Shri.Ivan
Rathinam together, for which, he failed to give any satisfactory
explanation.
(iii) The evidence before the Police Complaints Authority prima
facie disclosed that the child was begotten out of sexual
relationship of Smt.X with Shri.Ivan Rathinam. Evidence
adduced if unrebutted is sufficient to prove that Shri.Ivan
Rathinam had sexual intercourse with her in the year 2000
while subsistence of marriage of her with Y. It was clear from
the provisions of Sec.497 IPC that he had committed the
offence of adultery.
(iv) His conduct was one punishable under Sec.41(d) of Kerala
Police Act 1960.
(v) His conduct was in violation of Rule 3 of the Government
Servants Conduct Rules 1960.
(vi) His conduct will be a good and sufficient reason to impose
penalty as per Rule 15 of KPDIP & A Rules, if proved in a full-
fledged enquiry.
WA 736/2009 13
Finally, the authority recommended as follows:
“We unanimously recommend to the Appointing
Authority/Disciplinary Authority/Government of Kerala to
initiate departmental proceedings against the respondent on the
basis of the allegation that he had sexual intercourse with the
complainant during subsistence of her marriage with Mr.Y.”
As per the provisions of the Police Amendment Act, 2007 (Act 21/2007),
when such a recommendation of the Police Complaints Authority is
received, the disciplinary authority is bound to take disciplinary action,
though the disciplinary authority or the enquiring authority should not be
influenced by the prima facie findings of the Police Complaints Authority.
13. The respondent was not suspended when disciplinary action was
initiated by serving Ext.P1 charge memo. But, later the Director General of
Police addressed a communication on 12.12.2008 to the Government and
based on that communication, the Government decided to suspend him.
Going by the allegations against the respondent, it cannot be contended that
this is not a fit case to place him under suspension, in public interest. The
view taken by the Government in this regard cannot be described as
arbitrary or perverse or one, which no man in his senses will take. The fact
that at the first instance the respondent was spared, does not mean that
subsequently the Government cannot wake up, when it was alerted by the
Director General of Police and order suspension. While reviewing an
WA 736/2009 14
administrative action, the court should bear in mind that on the same set of
facts, different views are possible. Even if the view taken by the
Government is different from the view entertained by the Court, it is not a
ground to interfere with the administrative action concerned. Lord
Hailsham LC said:
“Two reasonable persons can perfectly reasonably come
to opposite conclusions on the same set of facts without
forfeiting their title to be regarded as reasonable”. (In Re W. v.
An Infant, 1971 AC 682).
Lord Diplock in his speech in Secretary of State for Education and
Science v. Metropolitan Borough Counsel of Tameside, 1977 AC 1014
said:
“The very concept of administrative discretion involves a
right to choose between more than one possible course of
action, upon which, there is room for reasonable people to hold
differing opinions as to which is to be preferred.”
Our Apex Court in U.P. Financial Corporation v. Gem Cup (India) Pvt.
Ltd. & Ors.[(1993)2 SCC 299] held as follows:
“In the matter of administrative action, it is well known,
more than one choice is available to the administrative
authorities. They have a certain amount of discretion available
to them….. . The Court cannot substitute its judgment for the
judgment of the administrative authority in such case.”
14. Even assuming, in the view of the court, a different or better view
WA 736/2009 15
is possible, still, the court cannot substitute its decision for that of the
Government. Professor H.W.R. Wade and C.F. Forsyth in Administrative
Law (Ninth Edition) have stated as follows:
“The doctrine that powers must be exercised reasonably
has to be reconciled with the no less important doctrine that the
court must not usurp the discretion of the public authority
which Parliament appointed to take the decision. Within the
bounds of legal reasonableness is the area in which the
deciding authority has genuinely free discretion. If it passes
those bounds, it acts ultra vires. The Court must therefore
resist the temptation to draw the bounds too tightly, merely
according to its own opinion. When a Divisional Court yielded
to that temptation by invalidating a Secretary of State’s decision
to postpone publication of a report by company inspectors, the
House of Lords held that the judgments ‘illustrate the danger of
judges wrongly though unconsciously substituting their own
views for the views of the decision-maker who alone is charged
and authorised by Parliament to exercise a discretion. The court
must strive to apply an objective standard which leaves to the
deciding authority the full range of choices which the
legislature is presumed to have intended. Decisions which are
extravagant or capricious cannot be legitimate. But if the
decision is within the confines of reasonableness, it is no part
of the court’s function to look further into its merits. …………….”
(Emphasis supplied)
The above statement of law has been quoted and followed by our Supreme
Court in G.B.Mahajan v. The Jalgaon Municipal Council [AIR 1991 SC
1153]. Going by the above mentioned well-settled principles of judicial
review, we feel that no ground has been made out, warranting interference
with Ext.P11.
WA 736/2009 16
15. Even if the view taken in the judgment under appeal, mentioned
earlier, that it is not necessary to suspend the respondent to prevent him
from influencing the witnesses is accepted, still, his suspension is justified
in public interest. The learned Judge failed to advert to that relevant aspect.
Further, we notice that the finding of the learned Judge that the suspension
order was passed only to victimise the respondent and it will amount to
abuse of the power vested in the Government, is not supported by any
material on record. Of course, the respondent has made certain self serving
statements regarding the mala fide action from the part of the State. But, the
appellants in their counter affidavit have denied those allegations of mala
fide also. Allegations of mala fide are easily made, but they are seldom
sustained. In this case,the respondent is accused of serious misconduct and
pending enquiry, he has been suspended. There is nothing unusual, irregular
or irrational about it. It cannot be said that this is a case where the
respondent would not have been suspended, but for the political clout of the
father of Mrs.X.
16. We have gone through the decisions relied on by the learned
Single Judge. Going by the principles laid down in A.K.Veeramani v.
State of Kerala [1974 K.L.T. 630], the decision of the Government to
WA 736/2009 17
suspend the respondent is fully justified. This Court in Mathew v. State of
Kerala [2000(1) K.L.T. 245] held that there should be application of mind
before suspending an employee. The decisions in Surendran K v.
Government of Kerala [I.L.R. 2008(3) Kerala 587] and Vikraman Nair v.
State of Kerala [2008(4) K.L.T. SN 63 (case No.59)] are rendered on the
special facts of those cases. The observations in those cases have no
application to the facts of this case.
17. In the result, the Writ Appeal is allowed. The judgment of the
learned Single Judge is reversed and the Writ Petition is dismissed. But,
this judgment will not stand in the way of the Government, either suo motu
or on application, reviewing the suspension order and reinstating the
respondent in service, if it thinks fit.
K.BALAKRISHNAN NAIR, JUDGE.
M.L.JOSEPH FRANCIS, JUDGE.
nm/ WA 736/2009 18