Chandrasekharan Nair v. Commissioner of Police — 1997 DIGILAW 324 (KER)

Judgment :- K.S. Radhakrishnan, J. Petitioner was working as Head Constable in the Cochin City Traffic Asst. Commissioner's Office. 2. Petitioner was an accused in C.C. No. 162 of 1993 before the Judicial Magistrate of the First Class, Kochi, for offences punishable under Ss.419,420 and 34 IPC. While disposing of the calendar case the Criminal Court ordered as follows "30. In the light of the above discussion, I find that the prosecution has clearly proved the offences punishable under Ss.419,420&34IPC. Accordingly points 1 to 3 are found in favour of the prosecution. 31. Heard the accused on the question of sentence. 32. Considering the nature of the offences I am of the view that this is not a fit case to invoke the benevolent provisions of Probation of Offenders Act. On the other hand, considering the facts and circumstances of the case, the accused deserve deterrent punishment. The first accused is police constable. It is persons like A1, who brings a bad name to the entire police force. It is the experience of the public that the police force is infiltrated with criminal elements like A1 who cheat, loot and harass the public as in the present case. In the circumstances, each of the accused is sentenced to undergo rigorous imprisonment for a period of one year under S.419 and 34 IPC and also to pay a fine of Rs. 5,000/- (five thousand) in default to undergo simple imprisonment for a period of 3 (three months). Each of the accused is also sentenced to undergo rigorous imprisonment for a period of 2 (two) years and also to pay a fine of Rs. 5,000/- (five thousand) in default to undergo simple imprisonment for a period of 6 (six) months under S.420 and 34 of the IPC. The fine amount, if paid, shall be given as compensation to PW1 under S.357 of the Cr.P.C. Bail bonds are cancelled. Sentence shall run consecutively". 3. On the basis of the above mentioned judgment of the criminal court, first respondent issued Ext. P1 order dated 4.4.1997 under paragraph 64(2) of the Manual of Disciplinary Proceedings, removing the petitioner from service. Consequently, he was also directed to vacate the quarters as per notice dated 16.6.1997. Petitioner is aggrieved by the said orders. 4. According to petitioner, against the order of Judicial Magistrate Court he has filed Crl. P1 order dated 4.4.1997 under paragraph 64(2) of the Manual of Disciplinary Proceedings, removing the petitioner from service. Consequently, he was also directed to vacate the quarters as per notice dated 16.6.1997. Petitioner is aggrieved by the said orders. 4. According to petitioner, against the order of Judicial Magistrate Court he has filed Crl. A.No. 98 of 1997 before the Sessions Court, Ernakulam, and in Crl.M.P. No. 622 of 1997, the sentence against the petitioner was suspended, and he was released on bail. According to petitioner, since the sentence has been suspended, respondents have no legal right to terminate his service. 5. Question that has come up for consideration is as to whether respondents have got power under paragraph 64 of the Manual for Disciplinary Proceedings read with R.17(c)(ii) Kerala Police Departmental Inquiries, Punishment & Appeal Rules, 1958 to remove a police personnel when he is convicted by a criminal court. R.17 is extracted below: "Procedure for imposing certain penalties:- (1)00 After the competent authority has examined the proceedings of inquiry and has recorded his finding under R.6(ir) he shall come to a conclusion regarding the penalty to be imposed, except in cases where no charge-shave been made out. (b) In all cases where it is proposed to impose any of the penalties mentioned in clauses 0), (k), (1) and (m) of sub-r.(1) of R.15, the authority competent to impose the penalty shall call upon the member of the service to show cause with in a reasonable time, not exceeding one month, against the particular penalty proposed to be inflicted. The member of the service shall also served with a copy of the report of inquiry together with the findings thereon. The representation if any submitted by the member of the service shall be taken into consideration before the final order imposing the penalty is passed by the competent authority. Where the competent authority is the Government and it thinks on a consideration of such representation of the member of the service that any of the penalties mentioned above should be imposed, it shall consult the Commission except in cases where such consultation is not necessary under the Kerala Public Service Commission (Consultation) Regulations, 1957. While consulting the Commission, Government shall forward the following records; (i) Enquiry records together with the findings. (ii) Notice issued to the Government servant together with his representation, if any. While consulting the Commission, Government shall forward the following records; (i) Enquiry records together with the findings. (ii) Notice issued to the Government servant together with his representation, if any. in the sub-rule shall be given after the authority competent to impose the penalty arrives at a provisional conclusion in regard to the penalties to be imposed, either by such authority himself or under his direction, by a subordinate authority who is superior in rank to the officer on whom it is proposed to impose the penalty. (c) Not with standing anything in these rules where a member of a service is involved in more than one delinquency in respect of which separate enquiries are conducted under R.6 or separate proceedings are taken under R.12, if the disciplinary authority having regard to his findings on each of discharges or allegations as the case maybe, is of opinion that a single penalty not being a penalty specified in clause (j) to (m) of sub-r.(i) of R.15 should be imposed joined in respect of such enquiries or proceedings, he may, instead of thereafter proceeding with such enquiries or proceedings separately take appropriate action joined (ii) The requirement of Sub-r.(b) shall not apply where it is proposed to impose on a member of the Service any penalty on the basis of facts which have led to the conviction in a criminal court or by a Court Marshal or where member of the service concerned has absconded or where it is for other reasons not reasonably practicable to communicate with him". 6. It is evident from the above mentioned statutory provision that the procedure contemplated under R.17(1)(b) is not applicable to cases where personnel is convicted by a criminal court. In a case where the department propose to impose punishment under R.15 which includes removal from service, there is no necessity to undergo various procedures laid down in R.15 and R.17, the reason being, criminal court has already found the personnel guilty for the criminal offence which itself constitutes a ground for removal or dismissal from service. No further enquiry or opportunity as such is necessary. Even the protection granted by Art.311 of the Constitution is not available to such a personnel. It is worthwhile to refer to the said Article in this context. Art.311 is extracted below: "311 (2). No further enquiry or opportunity as such is necessary. Even the protection granted by Art.311 of the Constitution is not available to such a personnel. It is worthwhile to refer to the said Article in this context. Art.311 is extracted below: "311 (2). No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of dieses charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Provided further that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry;" Second proviso to Art.311(2) says that the said Article as such would not be applicable to a case where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. Therefore, no enquiry is contemplated under Art.311(2) or opportunity of being heard need be given when a person is already convicted by a criminal Court. 7. Supreme Court in Union of India v. Tulsiran, AIR 1985 SCSC 1416 has taken the view that the charge in the criminal case is such that which would deserve the penalty of dismissal or removal from service or reduction in rank, the authority must consider, in view of the conviction, what penalty should be imposed on the delinquent employee. 7. Supreme Court in Union of India v. Tulsiran, AIR 1985 SCSC 1416 has taken the view that the charge in the criminal case is such that which would deserve the penalty of dismissal or removal from service or reduction in rank, the authority must consider, in view of the conviction, what penalty should be imposed on the delinquent employee. In considering the said question, authority will have to take into account, the entire conduct of the employee, gravity of the misconduct committed by him, the impact of his conduct likely to create on the administration and other extenuating circumstances. In the instant case, there is a specific finding by the criminal court that if police force is infiltrated by criminal elements like the petitioner who cheat, loot and harass the public as in the present case, the same would bring a bad name to the entire police force. Therefore, the conduct of the petitioner was severely commented upon by the learned Magistrate. In the instant case, what weighed with the department is that finding of criminal court with regard to the conduct of the petitioner. Therefore, I do not find any illegality in Ext. P1 order. 8. Counsel for the petitioner further contended that since the sentence has already been suspended by the Sessions Court and petitioner has been released on bail, there is no jurisdiction in issuing an order in the nature of Ext. P1. This contention cannot be accepted. It is admitted fact the judgment as such is not stayed and the Sessions Court only suspended the sentence. Supreme Court has considered the question as to whether on a mere suspension of sentence, the department is a debarred from taking further disciplinary action against the delinquent employee in Deputy Director of Collegiate Education (Admn.) v. S. Nagoor Meera, AIR 1995 SC 1864, and held as follows: "Taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant how has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said Government servant accused has been released on bail pending the appeal. It cannot be said that until the appeal against the conviction is disposed of, action under clause (a) of second proviso to Article 311(2) is not permissible. It cannot be said that until the appeal against the conviction is disposed of, action under clause (a) of second proviso to Article 311(2) is not permissible. The more appropriate course in all such cases is to take action under cl. (a) of the second proviso to Art.311(2) once a Government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If however, the Government servant accused is acquitted on appeal or other proceeding, the order can always be revised and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court." 9. In the instant case, I am of the view, the above mentioned decision of the Supreme Court squarely applies. There is categorical finding by the Criminal Court that the conduct of the petitioner brought a bad name to the police force. Criminal Court opinioned that it is a case where deterrent punishment should be imposed. In view of the said circumstances, I do not find any illegality in Ext. P1 order removing the petitioner from service. Needless to say, the said removal will be subject to the result of the appeal, which is pending before the Sessions Court. 10. Counsel for the petitioner submitted that petitioner is in occupation of the quarters and if he is evicted he will be put to considerable prejudice. Since petitioner is not in service in the eye of law, this court is not justified in allowing the petitioner to continue in the quarters, which he is occupying. Consequently he is liable to vacate the quarters. Considering the facts and circumstances of this case, I think it is just and proper that petitioner be given one month's time from today so as to find alternative accommodation. He should vacate the quarters on the expiry of one month from today, as already mentioned. Original Petition lacks merits and the same is dismissed.