Judgment :- 1. This appeal by the Commandant and Assistant Commandant, MSP., Malappuram, the DIG. of Police, Northern Range, Calicut and the State of Kerala who were respectively respondents 1 to 4 in OP. No. 4765 of 1981 brought by the 3 respondent is directed against the judgment of M.P. Menon, J. allowing the Original Petition and quashing two orders Exts. P9 and P10 both dated 8-10-1981 removing respondents 1 and 2 (petitioners 1 and 2) from Service. The Original Petition arose under the following circumstances: Petitioners 1 and 3 were Havildars and petitioner 2 a Constable in the MSP. 'C' Company at Malappuram. The first petitioner was the Secretary, the second petitioner was the President and the third petitioner was a Committee Member of the Kerala Police Association, MSP. Unit, Malappuram. The association had made a demand on the authorities that Constables of the MSP., KAP. and SAP. should be allowed to go over to the Armed Reserve Police and that direct recruitment to the Armed Reserve should be discontinued. Although the petitioners state that at a conference held on April 10, 1980 the Home Minister had agreed to the demand, direct recruitment was continued. The M.S.P. unit of the Association resolved to protest against the continuance of this practice. The protest took the form of a boycott of the mess on 8-12-1980 and a procession inside the campus from the Drill Hall to the main gate between 5.30 and 6.45 P.M. on 9-12-1980. The mess was boycotted in pursuance of a written notice given by the Association on 7-12-1980. 2. This unusual form of protest by members of the Police force was resented by the authorities. On 18-12-1980 the Deputy Inspector General of Police (third respondent) directed the Commandant of the Unit (first respondent) to issue show cause notices to the participants in the agitation. On 19-12-1980 the D.I.G. sent another message that "before issuing show-cause notice a preliminary enquiry should be conducted to fix the identity of the participants." The commandant thereupon authorised the Assistant Commandant (the 2nd respondent) to hold a preliminary enquiry. 3. On 30-12-1980 the 2nd respondent held a preliminary enquiry. 69 Constables had taken part in the mess-boycott and 88 in the procession. 3. On 30-12-1980 the 2nd respondent held a preliminary enquiry. 69 Constables had taken part in the mess-boycott and 88 in the procession. Their names were available and although they were notified about the enquiry none participated The 2nd respondent examined a few witnesses, marked certain documents and submitted his preliminary enquiry report on 31-12-1980 stating that "I have found prima facie case against the participants in both counts for violation of statutory rules undermining the discipline of the force". The counts were the boycott of the mess on 8-12-1980 and the holding of the procession on 9-12-1980. He also stated that the boycott was instigated by the office bearers of the M.S.P. Unit of the Association. 4. On receipt of the preliminary report the Commandant drew up charges against all the Constables concerned. There were two separate sets of charge-sheet, one concerning the boycott and the other concerning the procession. As against the petitioners there was under each head an additional charge of instigation. The Commandant authorised the second respondent to hold a "formal" or 'oral' enquiry. The petitioners protested on the ground that the 2nd respondent was likely to have a closed mind by reason of the preliminary enquiry and findings and requesting the appointment of another enquiry officer. The Commandant however turned down the request. An appeal to the DIG. was also of no avail. The 2nd respondent thereupon proceeded with the enquiry. The witnesses examined at this enquiry were those who had been examined at the preliminary enquiry. They confirmed that the statements which they had given at the former enquiry were true. The petitioners cross-examined them. They also produced defence witnesses and documentary evidence. On an assessment of the materials the second respondent submitted a report that the charges against the petitioners were proved. The petitioners were thereupon issued show cause notices and after considering the representations made by them the first respondent passed the orders Exts. P9 and P10 dated 8-10-1981 removing petitioners 1 and 2 from service. 5. In the Original Petition the petitioners challenged these orders on the main ground that in holding the formal or open enquiry the second respondent had no open mind. 6. The learned judge accepted the contention and invalidated the two orders. 7. The learned Additional Advocate General who appeared in support of the appeal challenged the reasoning and conclusion of the learned judge on this aspect. 6. The learned judge accepted the contention and invalidated the two orders. 7. The learned Additional Advocate General who appeared in support of the appeal challenged the reasoning and conclusion of the learned judge on this aspect. He contended that the learned judge was wrong in relying upon Sreeramulu v. Staff. AIR. 1970 A. P. 114 and in distinguishing Sunil Kumar Banerji v. State of W. B, 1980 (3) S.C.C. 304. He also argued that the learned judge had even sought to re-assess the evidence and materials as on an appeal thus exceeding the normal frontiers of Art.226 of the Constitution and that this has also vitiated his conclusion. We shall consider these arguments. 8. The enquiry in the present case was held under the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. R.8 specifies the authorities to conduct oral enquiries. Under R.8 (1)(iii) the enquiry might be held by "an officer of the Department appointed by the Appointing Authority or Head of Department who has nothing to do with the subject-matter of the inquiry or who is not connected otherwise with the Government Servant whose conduct is under inquiry." Counsel for the petitioners contended that the second respondent having witnessed the mess boycott and the demonstration was not a person who "has nothing to do with the subject matter of the inquiry" and was therefore disqualified to conduct the oral enquiry. This ground is not seen taken in the Original Petition nor argued before the learned judge nor found by him. We see no reason to investigate the merits of the complaint in the appeal. 9. Passing to the ground found by the learned judge against the second respondent, we cannot agree that by holding the preliminary enquiry he had become biased or prejudiced against the petitioners. We shall start the discussion by considering Sunil Kumar Banerji's case, 1980(3) SCC. 304. In order to decide whether a disciplinary proceeding should be instituted against the appellant the report of investigation conducted by the Vigilance Commissioner was referred to Shri A. N. Mukherji, Commissioner for Departmental Enquiries, Vigilance Commission for his views and for the preparation of draft charges if institution of disciplinary proceedings was to be recommended. The Commissioner for Departmental Enquiries expressed his opinion that there was material for framing 5 charges. He also prepared 5 draft charges and forwarded them to the Vigilance Commissioner. The Commissioner for Departmental Enquiries expressed his opinion that there was material for framing 5 charges. He also prepared 5 draft charges and forwarded them to the Vigilance Commissioner. The latter forwarded the papers to the Government who finally decided to institute a disciplinary proceeding against the appellant. Thereafter the Commissioner for Departmental Enquiries was appointed as Enquiry Officer. In challenging the proceedings which culminated in certain penalties the appellant contended that the Enquiry Officer was prejudiced against him. Rejecting this contention the Supreme Court held: (paragraph 5) "From the circumstance that Shri Mukherji considered the report of investigation with a view to find out if there was material for framing charges and prepared draft charges, it cannot possibly be said that Shri A. N. Mukherji, when he was later appointed as Enquiry Officer constituted himself both as prosecutor and judge. Anybody who is familiar with the working of criminal courts will at once realise that there is nothing strange in the same Magistrate who finds a prima facie case and frames the charges, trying the case also. It cannot for a moment be argued that the Magistrate having found a prima facie case at an earlier stage and framed charges is incompetent to try the case, after framing charges. This was one of the circumstances on which the appellant relied to substantiate his allegation of apprehension of bias." The principle of the decision squarely applies to the facts of the case and negatives the view taken by the learned judge. 10. That the conduct of a preliminary departmental enquiry does not disqualify the enquiry officer from conducting the subsequent formal or oral enquiry has been specifically laid down in judicial decisions. In D.A.Koregaonkar v. The State of Bombay. AIR.1958 Bombay 167, Chagla, C.J. delivering the judgment of a Division Bench held "The mere fact that an officer holds a preliminary inquiry and comes to a prima facie conclusion does not disqualify him from acting as an inquiry officer so long as he conducts the enquiry in a judicial manner." A Division Bench of the Madhya Pradesh High Court has held in Govind Shankar v. State of M.P., AIR. 1963 MP. 1963 MP. 115: "The mere fact that Shri Kand held a preliminary enquiry before it was decided to hold a departmental enquiry against the petitioner did not debar him from conducting the departmental enquiry; nor can it be regarded as in any way indicative of bias against the applicant." Although the question fell to be considered from a slightly different angle the decision in Srikant Upadhya v. Union of India AIR. 1963 Patna 38, is also relevant. The Bench (Ramaswami C. J. and Kanhaiya Singh, J.) held that the members of a Departmental Enquiry Committee, which enquired into the allegations of misconduct against certain railway employees in connection with the stoppage of work were not disqualified from sitting on the Departmental Enquiry against the petitioners especially when there was neither allegation nor any proof that he was actuated by personal malice or bias against them. Apart from Banerji's case, 1980 (3) S.C.C. 304, these decisions also support the contention of the learned Additional Advocate General. 11. Turning to Sreeramulu v. State, AIR. 1970 A. P. 114, upon which the learned judge has relied and which was strongly pressed before us by counsel for the respondents, the question in that case was whether the expression of opinion by an Enquiry Officer in a charge memo that the delinquent had abused his position and brought discredit to the department indicated bias. The Bench of which the judgment was pronounced by Jaganmohan Reddy, C. J. held: (the passage has been extracted by the learned judge in Para.8) "there can be no doubt that certain basis principles of natural justice apply equally to administrative enquiries as to judicial enquiries. A person who has conducted a preliminary enquiry, and found a prima facie case for a regular enquiry, will not be permitted to conduct a regular enquiry because be has already in some way formed an opinion in the case, or where an administrative superior has expressed definite views on the conduct of a delinquent officer, he will not be permitted to hold an enquiry." This passage undoubtedly supports the petitioners. We however find it difficult to follow it on principle or in the light of the principles laid down by the Supreme Court in Banerji's case, (1980(3) S.C.C. 304), and the other cases we have quoted above. We however find it difficult to follow it on principle or in the light of the principles laid down by the Supreme Court in Banerji's case, (1980(3) S.C.C. 304), and the other cases we have quoted above. The analogy of a preliminary enquiry followed by an enquiry in a warrant case, emphasised by their Lordships of the Supreme Court constitutes a strong refutation of the reasoning in AIR. 1970 A.P. 114. With respect we differ from the learned judge and hold that the 2nd respondent was not disqualified from holding the formal enquiry. 12. The enquiry in the present case was not as serious as it might otherwise have been for on the facts which the second respondent had to determine and which he found the petitioners had no dispute. Indeed at the hearing, counsel for the petitioners admitted before us that they had no dispute about the facts. The alleged bias of the second respondent is in a sense academic. 13. In Para.10 and 11 of the judgment the learned judge has discussed the merits of the evidence and the adequacy of the punishment in a manner that was not quite warranted by the restrictions of the writ proceedings. The petitioners themselves had not challenged the enquiry on the ground that the findings were without evidence. If so there was no ground to probe behind the findings and seek to weigh the evidence. 14. The learned judge has remarked that the opinion expressed by the DIG. in a communication dated 18-12-1980 that all those who participated in the events of the 7th and 8th December 1980 was a direction and that thereafter the second respondent had no freedom left to him. Neither the nature of the opinion nor its purport, in our view, justifies this remark nor is it calculated to vitiate the enquiry. 15. With respect we find it unable to agree with the reasoning and conclusion of the learned judge. We reverse the decision, allow the appeal and dismiss the Original Petition but without costs.