IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 3395 of 2003(D)
1. P.SUKUMARAN,
... Petitioner
Vs
1. THE DIRECTOR GENERAL OF POLICE,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.M.SASINDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/04/2009
O R D E R
S. SIRI JAGAN, J.
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O.P.No.3395 OF 2003
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Dated this the 7th day of April, 2009
JUDGMENT
The petitioner entered service as Sub Inspector of Police on
4.1.1995. Five separate proceedings for disciplinary action were
initiated against him which resulted in five separate punishments
of barring of increments imposed on the petitioner. Subsequently,
in the petitioner’s appeal against those orders, Ext.P1 series of
orders were passed wherein the punishment was converted into
one of censure. Since censure is not a punishment which could
be taken into account for the purpose of denying promotion, the
petitioner filed Ext.P3 representation before the Departmental
Promotion Committee for inclusion in the selection list for the
purpose of promotion as Circle Inspector of Police. By Ext.P3(a)
judgment, this Court directed consideration of the same.
Thereafter, Ext.P4 order was passed, wherein the petitioner’s
claim was rejected. The petitioner challenged the same before
this Court. While that was pending, Exts.P5 to P8 appellate
orders, whereby the conversion of punishment of barring of
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increments into censure was cancelled and the original
punishments were re-imposed. The petitioner is challenging the
same. The petitioner contends that the same are without
jurisdiction. The petitioner also contends that the same have
been issued without notice to the petitioner.
2. The learned Government Pleader submits that under
Rule 36 of the Kerala Police Departmental, Enquiries, Punishment
and Appeal Rules 1958, there is a power of suo motu review on
the authority superior to the authority who passed the original or
appellate orders. According to the learned Government Pleader, it
is pursuant to that power Exts.P5 to P8 orders have been passed.
3. I have considered the rival contentions in detail. Even
assuming that the authority who passed Exts.P5 to P8 orders
have jurisdiction, that jurisdiction could not have been exercised
without first issuing a show cause notice to the petitioner for such
review and hearing the petitioner, which is so stipulated in Rule
36 itself. The learned Government Pleader has not been able to
satisfy me that before issuing Exts.P5 to P8 orders, such a notice
was issued to the petitioner or that the petitioner was heard in
the matter. That being so, Exts.P5 to P8 are clearly
unsustainable. Accordingly, they are quashed. I am not
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expressing any opinion on the contention of the petitioner that
the authorities, who passed Exts.P5 to P8 orders, do not have
jurisdiction to pass those orders. That contention is left open to
be agitated by the petitioner if and when the appropriate
authority decides to pass fresh orders in the matter which they
may do if they have jurisdiction and if they decide to taking into
account the facts and circumstances of the case. If no such fresh
orders are passed within three months from the date of receipt of
a copy of this judgment, the petitioner would be entitled to
consequential benefits regarding promotion with effect from the
date when the same became due to him which was denied to him
on the basis of the punishment of barring of increments.
The original petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
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