IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 36842 of 2001(J)
1. S.ABDUL RASHEED
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :27/05/2010
O R D E R
ANTONY DOMINIC, J
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O.P.36842/2001
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Dated this the 27th day of May, 2010
JUDGMENT
While the petitioner was working as Deputy Superintendent of
Police, Ext.P1 memo of charges was issued alleging that in 1994,
while working as Circle Inspector, in the course of investigation in
Crime No.231/94 of Thiruvalla Police Station, he had accepted
illegal gratification. On receipt of the memo of charges, Ext.P2
explanation was submitted by the petitioner. Explanation was held
to be unsatisfactory and an oral enquiry was ordered. This resulted
in Ext.P4(a) report of the Enquiry Officer where the charges were
held not proved.
2. However the 1st respondent disagreed with the findings of the
Enquiry Officer and issued Ext.P4 show cause notice, proposing to
impose the punishment of barring two increments with cumulative
effect. On receipt of the show cause notice, petitioner submitted
Ext.P5 reply. Thereafter, he was afforded an opportunity of hearing
when the petitioner submitted Ext.P8 written statement. Finally he
O.P.36842/01
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was issued Ext.P11, confirming the provisional decision taken by
Ext.P4 to withhold two increments with cumulative effect. It is
challenging Ext.P11 the writ petition is filed.
3. Although several contentions are raised in the writ petition,
when the matter was taken up for hearing, learned counsel for the
petitioner brought to my notice the judgment rendered by this
Court in O.P.24391/2002 in which the disciplinary proceedings
initiated on this very set of facts against the person who was then
working as Sub Inspector of Police was challenged. This Court in
the aforesaid judgment, set aside the order of punishment on the
ground that the disciplinary authority disagreed with the findings
of the Enquiry Officer without putting the delinquent on notice and
in violation of principles of natural justice. It is contended that the
facts of this case are identical and therefore, Ext.P11 is liable to be
set aside on this ground itself.
4. Although the disciplinary authority is not bound by the
findings of the Enquiry Officer, once the finding is that the
petitioner is not guilty is entered into by the Enquiry Officer and if
the disciplinary authority proposed to disagree with that finding,
O.P.36842/01
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such disagreement is possible only after issuing notice to the
delinquent and only after giving him an opportunity of hearing, if
he has asked for such an opportunity. In this case, relevant portion
of Ext.P4 show cause notice reads as under.
“In view of the above facts Government
disagree with the findings of the Enquiry Officer
and hold that the charges levelled against you are
proved. Since the charges levelled against you are
very grave in nature, Government have
provisionally decided to impose you the
punishment of withholding of your next two
increments with cumulative effect, and to dispose
of the PR minutes against you accordingly.”
5. The aforesaid paragraph contained in Ext.P4 shows that the
Government disagreed with the findings of the Enquiry Officer
without notice to the petitioner and by this notice, he was called
upon to show cause only against imposing the punishment. This
clearly is in violation of principles of natural justice and therefore,
cannot be upheld. Resultantly final order passed in the proceedings
viz., Ext.P11, has to be interfered with.
O.P.36842/01
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6. Accordingly Ext.P11 will stand set aside. Petitioner’s monetary
benefits which are withheld consequent on Ext.P11, shall be
disbursed. However, it is made clear that this judgment will not
stand in the way of the respondents from initiating proceedings
against the petitioner in accordance with law and if they are so
advised.
Original Petition is allowed as above.
ANTONY DOMINIC,
Judge
mrcs