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2001 DIGILAW 676 (KER)

State of Kerala v. Venugopal

2001-11-22

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

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Judgment :- K.S. Radhakrishnan, J. The short question that has come up for consideration in this case is whether the disciplinary authority could disagree with the findings of the enquiry officer in view of S.6(11) of the Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958 (hereinafter called the rules). Learned Single Judge took the view rule does not permit so. State is aggrieved by the said finding and hence this appeal. 2. Writ Petitioner while working as S.I. of Police was served with memo of charges dated 19.12.1994 in accordance with the above mentioned rules. We may extract the charges for easy reference. I. That you Sri. K.G. Venugopal, S.1. of Police while working as S.1. of Police, Munnar from 17.10.91 to 18.6.92 have committed gross dereliction of duty and official misconduct by having joined hands with Sri. Tom Joseph, Dy. S.P. Munnar and Sri. Joseph Jose C.I. of Police Munnar transported over 100 kgs. of dry ganja and 12 Kgs. of dry meat which was seized by you during anti Ganjaraids conducted at Kombackkallu on 23.2.92 and did not include it in the Crime case and sold in the market and obtained pecuniary advantage to you and others misusing your official positions, received Rs. 10,000/--from Sri. Tom Joseph, Dy. S.P. Munnar and thereby failed to exhibit integrity to the department etc. n. You are requested to show cause why disciplinary action as contemplated under KPDIP & A Rules 1958 should not be taken against you. You are allowed fifteen days time from the date of receipt of this memo to submit your explanation if any. If no explanation is received within the stipulated time the matter will be proceeded with on the presumption that you have no explanation to offer. You are also required to state whether you desire to be heard in person. You may peruse the relevant records mentioned in the statement of allegations and take extracts from them, if so desired in my presence or any day prior to the due date for submission of your explanation which will be fixed in advance at your request. Petitioner filed his reply to the memo of charges. Reply was found unsatisfactory. Consequently enquiry officer was appointed. Deputy Inspector General of Police, Eastern Range was the Enquiry Officer. Enquiry Officer submitted his report on 30.3.1994 holding that the charges levelled against the petitioner were not proved. Petitioner filed his reply to the memo of charges. Reply was found unsatisfactory. Consequently enquiry officer was appointed. Deputy Inspector General of Police, Eastern Range was the Enquiry Officer. Enquiry Officer submitted his report on 30.3.1994 holding that the charges levelled against the petitioner were not proved. Criminal case was also pending. No steps have been taken by the respondent to expedite the matter and the Petitioner continued under suspension. Consequently he filed O.P. 6181/99 which was disposed of by this Court on 9.6.1999 directing the authorities to promote the petitioner as Circle Inspector of Police since he was exonerated. It was also ordered that the respondents need not wait for the completion of the crime case pending against the petitioner. 3. Subsequent to the disposal of O.P. 6181/99 Department issued show cause notice to the petitioner to show cause why the provisional decision to award punishment of barring of one increment without cumulative effect be not imposed on him. It is evident from the said show cause notice that the Government have disagreed with the finding of the Enquiry Officer. We may extract the reasoning of the Government for easy reference: From the evidence it is seen that you are an accused in Cr.No.13/92 of Devikulam Police Station. The case was investigated by the CBCID and the case will be charged immediately. The Enquiry Officer himself stated that there is ample evidences brought out in his enquiry that 100 Kgs. of ganja and 12 Kgs. of dry meat were brought after raid other than the preliminary statements. Therefore, the findings of the Enquiry Officer that the above allegation cannot be substantiated for want of evidences is not acceptable. He could not reach in a definite decision as to whether any irregularities have occurred in the raid till the disposal of the crime case. Deviation of the witnesses from their earlier statement is not valid enough to believe that the allegation against you is not substantiated. Further Shri. Joseph Jose, Circle Inspector of Police one of the delinquent was awarded with the punishment of barring of one increment without cumulative effect. In the above circumstances Government finds it difficult to accept the findings of the Enquiry Officer. Further Shri. Joseph Jose, Circle Inspector of Police one of the delinquent was awarded with the punishment of barring of one increment without cumulative effect. In the above circumstances Government finds it difficult to accept the findings of the Enquiry Officer. Government have taken a provisional decision to award you a punishment of barring of one increment without cumulative effect for the above proven charges." Petitioner filed his objections to the above mentioned show case notice. Objections were found to be unsatisfactory and consequently Government passed order dated 27.11.1999 imposing punishment of barring of one increment without cumulative effect. Those orders were challenged in the present Writ Petition. 4. Before examining the reasons which weighed with the Government to disagree with the findings of the enquiry officer we have to examine the question whether the disciplinary authority has got the power to disagree with the finding of the enquiry officer. R.6 deals with the procedure for enquiry which says that whenever on a complaint or otherwise, it is. found necessary to inquire into the conduct of a member of the service the departmental superior under whom such member is employed shall make a preliminary inquiry and determine whether there are grounds for further action. If prima facie grounds for departmental action are established in a preliminary inquiry as prescribed in sub-r.(1) or under the proviso thereto, such grounds shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the service charged, together with a statement of the allegations on which such charge is based. If the authority takes a decision to proceed with the enquiry he may do so. It is open to the enquiry officer to examine witnesses in support of the allegations and also accept evidence. After completion of the enquiry an enquiry report has to be submitted before the disciplinary authority and the disciplinary authority should record his findings on the charges inquired into. In this connection it would be appropriate to refer to R.6(11) for our purpose. The authority competent to dispose of the proceedings shall, on an examination of such proceedings, records his findings on the several charges inquired into and record a further finding in cases where no charges have been made out whether the member of the service is free from blame. The authority competent to dispose of the proceedings shall, on an examination of such proceedings, records his findings on the several charges inquired into and record a further finding in cases where no charges have been made out whether the member of the service is free from blame. It is evident from the above mentioned provision the authority competent to dispose of the proceedings has got a right to examine the entire proceedings and record his findings on the several charges inquired into. He has also got power to record further findings in cases where no charges have been made out, whether the member of the service is free from blame. We find it difficult to accept the contention of the Writ Petitioner that the disciplinary authority has no power to take a different view from that of the enquiry officer. This point is no more res Integra. Identical question came up for consideration before this Court in Mathew v. State of Kerala (1989 (1) KLT 88). The question raised therein was whether the Government is bound by the finding recorded by the enquiry officer. After considering the procedure laid down in the Rules learned judge held as follows: The power of the Government to differ from the report of the inquiry officer cannot now be questioned. The Government are entitled to consider the report and evidence recorded by the enquiry officer. The Government may agree with the report or may differ either wholly or partly in so far as the conclusions arrived at by the enquiry officer is concerned. If the Government disagree with the findings arrived at by the enquiry officer and hold that the charges framed against the delinquent officer are prima facie proved, the Government should provisionally decide as to what punishment should be imposed on the public servant. Then a notice must be issued to the delinquent officer regarding the proposed action. Second notice is to enable the public servant to satisfy the Government that he is innocent of the charges framed against him and that even if the charges are held proved against him the proposed punishment is unduly severe. No decision has laid down the proposition that the findings recorded by the enquiry officer conclude the matter and that the Government which ordered the enquiry is bound by the findings arrived at by the enquiry officer. No decision has laid down the proposition that the findings recorded by the enquiry officer conclude the matter and that the Government which ordered the enquiry is bound by the findings arrived at by the enquiry officer. Now has it been said that the findings arrived at by the enquiry officer are final and cannot be re-opened by the Government. The object of the enquiry is to enable the Government to hold an investigation into the charges framed against a public servant. So, the Government can consider the evidence adduced and decide whether the said charges are proved or not. In this view, it is difficult to hold that the findings recorded by the enquiry officer binds the Government and that the Government cannot deviate from the conclusions recorded by the enquiry officer in the last paragraph of the report". The above mentioned matter was taken up in W.A. 248 of 1989 and the Division Bench confirmed the judgment. Almost the same issue came up for consideration before a Bench of this Court in M.R. Narayana Panicker v. State of Kerala & Ors., ILR 1999 (3) Ker. 550. Bench was dealing with the scope, of R.8(15) of the Kerala Civil Services (Vigilance Tribunal) Rules. Court held that R.8(15) has given wider discretion in the matter of final decision by the Government. It was held that it is open to the Government even to differ from the findings of the Tribunal. Even if general principles of natural justice are incorporated, all that the delinquent officer can claim in the matter is an opportunity to submit his representation with regard to the penalty proposed based on the provisional conclusions which are communicated to him. We are of the view R.6(11) enables the disciplinary authority to record his findings. His findings could be either way. Disciplinary authority could accept the report or not accept the report. If disciplinary authority proposes not to accept the report necessarily it has to give reason why it is not accepting the report. The Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 placing reliance on the decision of the Apex Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 held that a dlinquent officer is entitled to represent to the disciplinary authority where the findings in the enquiry report are against him. The Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 placing reliance on the decision of the Apex Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 held that a dlinquent officer is entitled to represent to the disciplinary authority where the findings in the enquiry report are against him. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. 5. The enquiry officer as per rule is entitled to receive both oral and documentary evidence. He would decide the issue on the basis of the evidence so adduced. Report of the enquiry officer therefore cannot be brushed aside lightly unless there is cogent or relevant reasons. In this case learned Government Pleader submitted that the disciplinary authority has applied his mind and reason for disagreeing with the report of the enquiry officer has been stated. We have perused the order of the disciplinary authority. We are not satisfied with the manner in which disciplinary authority has rejected the enquiry report. Enquiry officer stated that there is ample evidence brought out in the enquiry that 100 kgs. of ganja and 12 kgs. of dry meat were brought after raid other than the preliminary statements. Consequently disciplinary authority concluded that the finding of the enquiry officer that since the witnesses have deviated from their earlier statements the allegation of bringing 100 kgs. of ganja and 12kgs. of dry meat cannot be substantiated for want of evidence is not acceptable. We are of the view enquiry officer reached this conclusion not on the basis of above statement alone. He had also based his conclusions on other factors including the oral evidence adduced by PW-1 to 12 as well as DW1 and 2. We are of the view that disciplinary authority is bound to examine each and every findings of the enquiry officer and state reasons for disagreeing with those findings. Such approach was lacking in the order. Under such circumstances we are inclined to set aside Ext. We are of the view that disciplinary authority is bound to examine each and every findings of the enquiry officer and state reasons for disagreeing with those findings. Such approach was lacking in the order. Under such circumstances we are inclined to set aside Ext. P6 and P9 and direct the State Government to reconsider the matter. Government would state the reasons for disagreeing with the views of the enquiry officer. Government would pass final orders within a period of three months from the date of receipt of copy of the judgment with notice to the writ petitioner. Direction given by the learned single judge is accordingly set aside. Appeal is allowed as above. We make it clear we are not expressing opinion on the merits of the case. It is for the Government to pass appropriate orders as directed above.