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1999 DIGILAW 610 (KER)

Antony v. State of Kerala

1999-11-27

S.SANKARASUBBAN

body1999
Judgment :- S. Sankarasubban, J. The above Original Petition has been filed to call for the records relating to Exts. P1 and P4 and to quash the same, issue a writ of mandamus directing the first respondent to reinstate the petitioner into service in terms of para. 17 of the Manual of Disciplinary Proceedings (Kerala) and for other reliefs. Petitioner is an Inspector of Police (SB CID). While he was serving as Inspector of Police, Thodupuzha, the petitioner was placed under suspension as per Ext. P1 order dated 17.9.1997. In Ext. P1 it is stated that the Vigilance and Anti-Corruption Bureau had conducted a detailed enquiry into certain allegations against the petitioner when he was working at Irinjalakuda. The enquiry disclosed that the petitioner had run a private unlicensed finance company in partnership with one Jose Pareppadan and thereby violated R.48(1) and R.16(1)(a) and (b) of the Kerala Government Servants Conduct Rules, 1960. It was in the above circumstances that the order of suspension was issued. 2. Thereafter, the petitioner was served with a memo of charges dated 8.9.1997 by the Additional Secretary, Vigilance (A) Department, Thiruvananthapuram. The memo of charges stated the charges levelled against the petitioner. Petitioner was required to show cause why disciplinary action should not be taken against him, as contemplated under the Kerala Police (departmental Inquiries, Punishment and appeal) Rules 1958 (hereinafter referred to as the Rules, 1958). Petitioner was given 15 days time from the date of the memo to put in his statement of defence. Petitioner was also required whether he desires to be heard in person. Along with the memo of charges, the petitioner was served with a statement of allegations and list of records. 3. Petitioner submitted a detailed statement of defence denying the charges in to to and explaining that Jose Pareppadan mentioned in the memo of charges is a cousin of the petitioner and that he was running the finance company independently and the Video Shop was conducted by one Babu Joseph, who is a cousin of Jose Pareppadan's wife. Petitioner did not directly or indirectly involve in the finance business conducted by Jose Pareppadan or Video Shop conducted by Babu Jose. According to the petitioner, Jose Pareppadan did not like the conduct of the petitioner and he made a complaint to the Deputy Superintendent of Police, Irinjalakuda through one Wilson Thottappally. The complaint was forwarded to the Government. Petitioner did not directly or indirectly involve in the finance business conducted by Jose Pareppadan or Video Shop conducted by Babu Jose. According to the petitioner, Jose Pareppadan did not like the conduct of the petitioner and he made a complaint to the Deputy Superintendent of Police, Irinjalakuda through one Wilson Thottappally. The complaint was forwarded to the Government. Another complaint was filed by Jose Parepadan. The above two complaints were forwarded to the Vigilance Unit, Thrissur for conducting a detailed enquiry. Petitioner appeared personally and sustantiated his innocence. Thereafter, the petitioner received notice 11.2.1998 from the 3rd respondent-Vigilance Tribunal, Kozhikode calling upon him to appear before it on4.3.1988 and to submit his explanation/ statement of defence against the imputations made against him in Enquiry Case No. 2 of 1998. Ext. P4 is the order by which the case has been referred to the Vigilance Tribunal, Kozhikode. It is challenging Ext. P4 that the Original Petition is filed. 4. According to the petitioner, he was placed under suspension by Ext. P1 order dated 6.9.1997 and has been continuing under suspension for more than 6 months. Petitioner contends that for suspending a person beyond six months, special reason should be stated. Further he contended that the suspension is arbitrary. Another contention raised by the petitioner is that the third respondent is a Tribunal appointed under sub-r.(a) of R.3 of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 and is not a Tribunal appointed by the Government for the purpose of conducting oral enquiry under R.8 of the Rules 1958. R.36B of the Rules, 1958 makes it clear that the Tribunal appointed under those Rules and not one appointed under the Kerala Civil Services (Vigilance Tribunal) Rules, 1958. Therefore, Ext. P4 order referring the case to the third respondent-Tribunal is clearly illegal. According to him, it is a pre-condition that the disciplinary authority should take a decision as to whether the enquiry proposed to be held would result in imposition of major penalties. In ground 'F' of the Original Petition, the petitioner submits that if the Vigilance Department is allowed to continue the proceedings, the petitioner is entitled to appeal. 5. A counter affidavit has been filed on behalf of the respondents. In para. In ground 'F' of the Original Petition, the petitioner submits that if the Vigilance Department is allowed to continue the proceedings, the petitioner is entitled to appeal. 5. A counter affidavit has been filed on behalf of the respondents. In para. 2 of the counter affidavit, it is stated that vigilance enquiry was conducted against the petitioner and the enquiry had revealed that the petitioner had run a private unlicensed finance company in partnership with Jose Pareppadan and thereby violated R.48(1) and R.16(1)(a) and (b) of the Kerala Government Servants Conduct Rules, 1960. In Para. 3 of the counter affidavit, it is stated that after the petitioner was placed under suspension, the Government framed specific charges as Ext. P2 against the petitioner and obtained his written statement of defence. The written statement of defence was examined by Government with reference to the relevant records of the case. A personal hearing was given to the petitioner. Thereafter, the Government decided that the matter can be proceeded with and enquired into in detail by the Vigilance Tribunal under the Rules, 1958 and accordingly, the case was referred to the Vigilance Tribunal. Counter affidavit submits that the action referring the charges against the petitioner to the Vigilance Tribunal, is with jurisdiction. 6. The main point argued by the learned counsel for the petitioner Shri. O.V. Radhakrishnan is that Ext. P4 is without jurisdiction. According to the learned counsel, the petitioner is governed by the Rules, 1958. As per these Rules, the procedure regarding the conduct of enquiry is contained in R.8 which is as follows "8. Authority to conduct oral inquiry:-(!) An inquiry which is likely to result in the imposition of any of the penalties mentioned in clauses 0), (k), (I) or (m) of sub-r.(1) of R.15 may be held by (i) the Appointing Authority, of (ii) the Head of Department, or (iii) an officer of the Department appointed by the Appointing Authority or Head of Department who has noting to do with the subject matter of the inquiry or who is not connected otherwise with the Government Servant otherwise with the Government Servant whose conduct is under inquiry, or (iv) A Special Officer or Tribunal appointed by the Government for the purpose." Further, counsel submitted that any order passed after enquiry is subject to an appeal under R.23 of the Rules, 1958. Under R.8, enquiry can be conducted either by the Appointing Authority or by the Head of Department or by an officer of the Head of the Department or a Special Officer or Tribunal appointed by the Government for the purpose. The contention of the counsel is that the Vigilance Tribunal is not a Tribunal constituted under R.8 of the Rules, 1958. Since the Vigilance Tribunal is not a Tribunal constituted under R.8(1)(i) to (iv) of the Rules 1958, that Tribunal cannot conduct the enquiry. Further submission is that if an enquiry is conducted under R.8 of the Rules 1958, that Tribunal cannot conduct the enquiry. Further, submission is that if an enquiry is conducted under R.8 of the Rules 1958 the petitioner would be deprived of a remedy of an appeal. But such remedy is absent if the enquiry if conducted by the Vigilance Tribunal. Hence, the petitioner submits that he is discriminated. 7. According to me, the above argument cannot be accepted. Petitioner has not argued that the Kerala Civil Services (Vigilance Tribunal) Rules cannot be made applicable to the employees of the Police Department. His only argument is that the Vigilance Tribunal is not the one coming under R.8(1)(i) to (iv). If the Kerala Civil Services (Vigilance Tribunal) Rules are applicable to the petitioner, then he could not have any grievance in the procedure adopted by the Government. In this context, it is worth-mentioning that the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 have been framed under Art.309 of the Constitution of India with regard to Government servants, who are members of the State and Subordinate Services or who have held civil posts under the Kerala Government. The above Rules also prescribe various procedures for enquiry including institution of a Tribunal for the purpose of enquiry. The Rules, 1958 are Special Rules with regard to the personnel of the Police Service. Thus, personnel of the Police Service, who are governed by the Kerala Police Departmental Rules can be proceeded against only under the Kerala Police Departmental Rules and not under the Kerala Civil Services (Classification, Control and appeal) Rules, 1960. 8. Now, I shall come to the Kerala Civil Services (Vigilance Tribunal) Rules, 1960, under which Ext. P4 order was passed. Thus, personnel of the Police Service, who are governed by the Kerala Police Departmental Rules can be proceeded against only under the Kerala Police Departmental Rules and not under the Kerala Civil Services (Classification, Control and appeal) Rules, 1960. 8. Now, I shall come to the Kerala Civil Services (Vigilance Tribunal) Rules, 1960, under which Ext. P4 order was passed. R.1(c) of the above Rules says that these Rules shall apply to all officers under the rule-making control of the State Government other than those referred to in Art.314 of the Constitution of India. There is no case that the petitioner is not an officer under the rule-making control of the State Government. This Court had occasion to consider the question with regard to the members of the staff of the Kerala Public Service Commission in the decision reported in Krishnan Nair v. Public Service Commission, 1982 KLT 610. In the above decision, it was held that since the State Government has no power with regard to the staff of the Public Service Commission, the Kerala Civil Services (Vigilance Tribunal) Rules cannot be made applicable to them. But so far as the present case is concerned, since the petitioner is a person, who is an officer under the rule making control of the State Government, the Kerala Civil Services (Vigilance Tribunal) Rules apply. It appears that the Government has enacted the Kerala Civil Services (Vigilance Tribunal) Rules with regard to cases relating to Gazetted Officers in respect of matters regarding corruption and also such classes of cases which the Government considers it necessary to be dealt with by the Tribunal. 9. Thus, taking into account the serious nature of charges involved, which include charges for corruption, the Government has thought that such matters should be tried by a Tribunal constituted by it. The Tribunal is to consist of a person, who has been or is eligible to be appointed as District Judge and Sessions Judge or a person with not less than 7 years experience in the conduct of criminal cases or disciplinary cases. The Tribunal is to consist of a person, who has been or is eligible to be appointed as District Judge and Sessions Judge or a person with not less than 7 years experience in the conduct of criminal cases or disciplinary cases. R.5 of the Kerala Civil Services (Vigilance Tribunal) Rules states that if on a complaint or other information, the Disciplinary Authority or the Appointing Authority empowered by Government in this behalf is satisfied that there is a prima facie case for taking action against on officer before the Tribunal, the authority shall forward to Government all the records of the case. The Government after examining such records and after making such consultations as may be deemed necessary, decide whether there is a prima facie case against the officer. If the Government is satisfied that there is a prima facie case against the officer, then it shall frame definite charge which shall be communicated to the officer. Another Rule, which is important to be taken note of is R.B. R.8 is with regard in the. procedure of the Tribunal. It says that notwithstanding anything contained in Rr.15 and 16 of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 and R.17 of the Kerala Police Departmental Inquiries Punishment and Appeal Rules, 1958, the procedure prescribed in sub-rr. (2) to (10) and (14) shall be adopted by the Tribunal in conducting enquiries. This rule also throws lighten the fact that disciplinary proceedings can be tried under the Kerala Civil Services (Vigilance Tribunal) Rules. Hence, I am not able to accept the argument of the learned counsel for the petitioner is that if the case had been tried under the Kerala Police Departmental Rules, the petitioner would have got a right of appeal, which is lost under the Kerala Civil Services (Vigilance Tribunal) Rules and hence the petitioner is discriminated. I am unable to accept this argument. The right of appeal is not a substantive right unless it is conferred by a Statute. Merely because an appeal is not provided against an order, it cannot be said that it is discriminative or violative of the principles of natural justice. 10. In this context, it is pertinent to note that the Vigilance Tribunal is to be headed by a person having the rank of District Judge. Merely because an appeal is not provided against an order, it cannot be said that it is discriminative or violative of the principles of natural justice. 10. In this context, it is pertinent to note that the Vigilance Tribunal is to be headed by a person having the rank of District Judge. Further, under R.4 of the Kerala Civil Services (Vigilance Tribunal) Rules, the Government is given a discretion with regard to cases which are to be tried by the Tribunal. If a case has to be tried by the Tribunal, then the procedure has to be determined as per the Kerala Civil Services (Vigilance Tribunal) Rules. In that event, the petitioner cannot argue that if the case had been tried under other Rules, he would get better opportunities. Petitioner has no case that R.4 of the Kerala Civil Services (Vigilance Tribunal) Rules is invalid. When a case is transferred to the Vigilance Tribunal, it forms a class by itself and the procedure is governed by the above Rules. Petitioner cannot then resort to Kerala Police Departmental Rules. This is particularly because R.8 of the Kerala Civil Services (Vigilance Tribunal) Rules states that it has to follow the procedure of the above Rules and not the Kerala Police Departmental Rules. Hence, I don't find any basis for the contention raised by the petitioner. Ext. P4 shows that the Government perused the records and found that it was a fit case to be tried by the Vigilance Tribunal. Hence, Ext. P4 is valid. 11. The next contention raised by the petitioner is regarding the suspension. Petitioner's grievance was that since more than 6 months have expired after the suspension, the suspension should be reviewed. By an interim order, this Court directed the Government to review the order of suspension. But the Government dismissed the petition for review. I don't think, it is now desirable to direct the Government to review the order of suspension, since the enquiry is now pending before the Tribunal. 12. In the above view of the matter, I dismiss the Original Petition and direct the third respondent to dispose of the case against the petitioner as. early as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.