High Court Kerala High Court

K.F.Augustin vs State Of Kerala on 7 November, 2008

Kerala High Court
K.F.Augustin vs State Of Kerala on 7 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 34556 of 2000(L)



1. K.F.AUGUSTIN
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.S.P.ARAVINDAKSHAN PILLAY

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :07/11/2008

 O R D E R
                            S. Siri Jagan, J.
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                  O.P. Nos. 34556/2000 & 6932/2001
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                Dated this, the 7th  November, 2008.

                           J U D G M E N T

Since issues in these two original petitions are connected, they

are being heard together and disposed of by this common judgment.

2. The petitioner is presently an Assistant Sub Inspector of

Police. While he was working as Head Constable, disciplinary

proceedings were initiated against him for certain acts of

misconduct, which resulted in Ext. P6 order of punishment of

reduction in rank, as Police Constable for two years. Although

petitioner’s appeal and revision were rejected by Exts.P 8 and P10

orders, in review before the Government, by Ext. P13 order, the

Government reduced the punishment to one of “black mark”.

Pursuant thereto, Ext. P14 order was passed directing that the period

of suspension of the petitioner would be considered as duty for the

purpose of payment of pension and gratuity and he would be eligible

for 80% of the salary during suspension period. The petitioner is

challenging Exts.P 13 and P14 orders in O.P.No. 34556/2000.

3. Subsequently, the petitioner was considered for inclusion in

the select list for promotion. However, on account of the “black

mark” consequent to the disciplinary proceedings, he was superseded

for promotion, in respect of which Ext. P2 order has been issued on a

representation filed by the petitioner against the supersession. The

petitioner is challenging Ext. P2 order in O.P.No. 6932/2001.

4. The petitioner’s contention is that as is evident from Ext. P4

(a) minutes of punishment roll, it is evident that the enquiry officer

found the petitioner not guilty of the misconduct alleged against him.

According to the petitioner, after having not found guilty of the

misconduct as alleged in the charge memo, the petitioner could not

have been imposed with any punishment. Since the petitioner is not

guilty of any misconduct, the petitioner is entitled to full salary and

O.P.Nos.34556/00 & 6932/01. -: 2 :-

benefits for the period of suspension and it cannot be limited to 80%.

As far as supersession is concerned, the petitioner would contend that

in so far as he is not guilty of any misconduct, he could not have been

superseded since the only ground on which he was superseded was

the imposition of punishment of “black mark” on the petitioner.

5. Counter affidavits have been filed in both cases. It is

contended in the counter affidavit that from the evidence on record,

it is clear that the petitioner had tarnished the image of the police

before the public. Therefore, the imposition of black mark on him is

perfectly correct, is the submission made. Once the imposition of

black mark is held to be valid, his supersession for the purpose of

promotion is also correct is the contention raised by the learned

Government Pleader.

6. I have considered the rival contentions in detail.

7. The charges alleged against the petitioner was that while

working as Head Constable attached to Punnapra Police Station, the

petitioner, at about 9.30 p.m. on 16-2-1992, went to the house of one

Lisy, a widow residing at Nedumparambu House in Ward No. 4 of

Punnapra Panchayat, in an intoxicated condition, beat her and

destroyed the articles in that house and uttered obscene words,

which is stated to be the conduct on the part of the petitioner

unbecoming of a member of the police force. From Ext. P4(a), which

is the Punishment Roll Minutes, it is seen that the said Smt. Lisy was

examined as a witness, namely, PW1. She had deposed before the

enquiry officer that the allegations that the petitioner went to her

house in an intoxicated condition, beat her, destroyed her dress and

domestic articles in the house and uttered obscene words are not

correct. She further deposed that some other persons of the locality

assaulted the petitioner and it is one of those persons who caused

O.P.Nos.34556/00 & 6932/01. -: 3 :-

destruction of the household articles of Smt. Lisy. The other

witnesses who have been examined also did not support the

allegations in the charge sheet. In fact, in the concluding portion of

Ext. P4(a) P R minutes, what has been found by the enquiry officer

is that the allegations against the petitioner in the charge memo had

not been proved. What has been found is that in the medical

examination pursuant to the assault on the petitioner in respect of

which a criminal case was registered, the concerned medical officer

had noted that while the petitioner was admitted, he was smelling of

alcohol. A further observation made therein is that the persons of

the locality assaulted the petitioner because they did not like the

petitioner going to the house of Smt. Lisy. Smt. Lisy is a widow. The

petitioner claims that Smt. Lisy is the widow of one of his friends and

that members of both houses used to visit each other and the

petitioner was only visiting the said Lisy in furtherance of his social

obligations. From Ext. P4(a), I am unable to find that the allegations

in the memo of charges have been proved to any extent. On the other

hand, the finding therein is that the petitioner had not committed the

alleged misconduct. The only finding is that at the relevant time, he

was smelling of alcohol. There is no allegation that at the relevant

time, the petitioner was on duty. Consumption of alcohol while not

on duty is not a misconduct also. Therefore, going by Ext. P4(a), I am

unable to find that the petitioner was guilty of any misconduct

whatsoever. When Smt. Lisy herself submitted that the acts

constituting the allegations against the petitioner have not been

committed in her house, then there cannot be any conclusion of any

misconduct whatsoever against the petitioner. As such, the petitioner

cannot be held guilty of any any misconduct as has been done by the

respondents. Consequently, imposition of any punishment including

O.P.Nos.34556/00 & 6932/01. -: 4 :-

black mark cannot be sustained. Accordingly, Ext. P13 order whereby

the punishment of black mark has been imposed on the petitioner is

quashed. It is declared that the petitioner is not liable to be

punished for any misconduct as has been done in this case. However,

I am not inclined to interfere with Ext. P14, whereby the salary and

allowances of the petitioner have been limited to 80% during the

period of suspension in so far as under Rule 56A of the K.S.R, the

disciplinary authority has powers to do so and in this case, there was

some suspicious circumstances which led to the issue of memo of

charges.

8. The supersession of the petitioner for the purpose of

promotion as Assistant Sub Inspector is wholly based on the

punishment of “black mark” imposed on him, as is evident from Ext.

P2 in O.P.No. 6932/2001, which has been quashed by me. Therefore

the supersession of the petitioner also cannot be sustained.

Accordingly, Ext. P2 also is quashed. It is held that supersession of

the petitioner for the purpose of promotion as A.S.I on the basis of

black mark is unsustainable.

9. The petitioner has been subsequently promoted as A.S.I.

However, once the supersession is set aside, his date of promotion is

to be revised by including him in the select list for the previous

periods, if he is otherwise eligible. Orders in this regard shall be

passed, as expeditiously as possible, at any rate, within three months

from the date of receipt of a copy of this judgment. The original

petitions are allowed as above.

Sd/- S. Siri Jagan, Judge.

Tds/