IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 2678 of 1999(R)
1. SOMASUNDARAM KARTHA
... 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 :09/01/2007
O R D E R
S. SIRI JAGAN, J.
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O.P. No. 2678 OF 1999 R
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Dated this the 9th day of January, 2007
J U D G M E N T
The petitioner, while working as a police constable attached to the
Perumbavur police station, was proceeded against for disciplinary action on
the ground that the accused in crime No.212/93, under sections 457, 380 and
461 of the Indian Penal Code, of Perumbavur police station, escaped from
police custody while the petitioner was on turn duty due to his carelessness
and negligence. An oral enquiry was conducted into the allegations of the
misconduct, which resulted in Ext.P4(a) punishment roll in which the petitioner
was found guilty of the charges levelled against him for which the punishment
of barring of two increments with cumulative effect was imposed on the
petitioner. Petitioner’s appeal, review, etc having become unsuccessful, he is
challenging Exts.P4, P6, P7 and P9 orders, which are the original order,
appellate order and order in review in the disciplinary proceedings,
respectively.
2. The contention raised by the petitioner is that on the fateful day,
one Kareem was on sentry duty and the petitioner along with one George was
on turn duty. The petitioner contends that the duty of the policeman on turn
duty is only to take over from the person on sentry duty if he is unable to
continue on sentry duty. Otherwise he is only to be present in the police
station and he is not expected to be actually on duty. The further contention
OP.2678/99
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of the petitioner is that the evidence in the enquiry shows that at the time
when the accused in the crime escaped from the police custody Sri.Kareem
was actually on sentry duty and the petitioner was taking rest in an ante room,
from where the spot where the accused was kept was not visible. That being
so, the petitioner could not have been made liable for any carelessness or
negligence since he could not have been expected to be on sentry duty at the
relevant time. He would further submit that if he were to be made liable, then
the other turn duty policeman namely, Sri.George should also have been
made liable because the petitioner and Sri.George stand on the same footing
as turn duty policemen. However, the said George was made a witness in
the enquiry against the petitioner and the petitioner a delinquent which is
patently discriminatory and unsustainable. The petitioner also points out that
the depositions of the various witnesses recorded in Ext.P4(a) punishment roll
itself is to the effect that the petitioner was not at all responsible for the
escape of the accused.
3. On the other hand, the learned Government Pleader would
stoutly deny all the contentions of the petitioner. He would submit that as turn
duty policeman, it was the duty of the petitioner to help the sentry duty
policeman and, therefore, he was also responsible for the escape of the
accused, who was kept under detention in the police station.
4. I have considered the rival contentions in detail.
5. I am of opinion that even going by Ext.P4(a) punishment roll
itself, the petitioner is entitled to succeed. First of all, I find considerable force
in the contention of the petitioner that when he as well as the other turn duty
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policeman namely, George, were similarly situated, the petitioner alone could
not have been proceeded against. Instead the said George has been made a
witness in the enquiry against the petitioner. I do not find any logic in this
approach made by the respondents. I also find substance in the contentions
of the petitioner that since the turn duty policeman is expected to be on duty
only when the sentry duty cannot discharge his duties the turn duty policeman
cannot be held responsible for what happened when the sentry duty
policeman was actually on duty. Ext.P4(a) makes it abundantly clear that at
the relevant time, Sri.Kareem was on sentry duty and, therefore, the full
responsibility for seeing that accused kept at the police station does not
escape was squarely on the said Sri.Kareem. In Ext.P4(a), the evidence of
the PW1 namely, Sri.George is summarised. In that, it is stated that the said
George had categorically deposed that the accused escaped at the time of
the duty time of PCE 6436. PCE 6436 is Sri.Kareem. Again, PW3, who was
the Circle Inspector of the police station, also categorically stated that the
accused escaped at 9.35 at night and at that time, PCE 6436 Sri.Kareem was
on sentry duty. Again, the Sub Inspector of the police station categorically
stated that it is as per his direction that the accused was kept outside without
putting him in the lockup and it cannot be said that it was because of the
negligence of the turn duty policeman that the accused has escaped. On the
face of this evidence, I do not think that any reasonable person could have
come to the conclusion that the petitioner was responsible for the escape of
the accused which is the subject matter of the disciplinary proceedings
against the petitioner. It, coupled with the fact that the other turn duty
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policeman was let off, would prove beyond any reasonable doubt that the
petitioner could not have been proceeded against the incident in question. As
such, no punishment could have been imposed on the petitioner and the
finding in Ext.P4(a) based on that evidence is clearly perverse and
unsustainable. In the above circumstances, I quash Exts.P4, P6, P7 and P9
and hold that the petitioner is not guilty of the misconduct alleged against him.
The increment withheld as punishment would be released to the petitioner
with all arrears within two months from the date of receipt of a copy of this
judgment and his pay and pension also shall be re-fixed and arrears paid
accordingly within the above said period.
The original petition is allowed as above.
(S. SIRI JAGAN, JUDGE)
aks
S. SIRI JAGAN , J.
OP No.2678/99 R
J U D G M E N T
9th January, 2007