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mark” consequent to the disciplinary proceedings, he was superseded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/