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2004 DIGILAW 78 (KER)

Damodaran K. K. v. State of Kerala

2004-02-23

K.K.DENESAN

body2004
JUDGMENT 1. Petitioner retired from service while working as Circle Inspector of Police. In the year 1997 he was working as Sub Inspector. Alleging dereliction of duty on his part, Memo of charge dated 3rd January 1998 (Ext. P-1) was served on him. He submitted written statement of defence (Ext. P-2) pleading not guilty to the charge. Thereafter Ext. P-3 order dated 14th July 1998 was passed by the fifth respondent - Superintendent of police finding the petitioner guilty of the charge and imposing on him the penalty of barring his increment for one year with cumulative effect. Revisions and review petitions filed by the petitioner before the higher authorities were in vain. Under the circumstances, he filed this Original Petition seeking to quash Ext. P-3 order and Exts. P-5, P-7, P-8 and P-10 orders passed by the higher authorities upholding Ext. P-3. 2. Shri T. C. Govindaswamy, learned Counsel for the petitioner contends that the penalty of stoppage of increment with cumulative effect is not a punishment authorised by the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, hereinafter referred to as the 'Rules' which govern and regulate disciplinary action against members belonging to Kerala Police. R.15(1)(g) which deals with stoppage of increments reads as follows: "Withholding of increments or promotion including stoppage at any efficiency bar." The contention, therefore, is that the penalty imposed as per Ext. P-3 is without jurisdiction. Having scanned through the rules, no provision authorising the disciplinary authority to withhold increments with cumulative effect is seen. None is brought to my notice by the learned Government Pleader also. Counsel for the petitioner, therefore, is well founded in his submission that Ext. P-3 order withholding increment with cumulative effect is unsustainable for want of Jurisdiction. 3. Sri Roy Chacko, Senior Government Pleader for the respondents contends that the punishment imposed was only a minor penalty. That is what is stated in the counter - affidavit also. It is further stated that since the Rules do not exclude withholding of increment with cumulative effect, there is nothing wrong in imposing that penalty. According to the respondents since the penalty of withholding of increment is enumerated in the rules, the imposition of that penalty can be with or without cumulative effect. 4. I cannot agree with the above submission made on behalf of the respondents. According to the respondents since the penalty of withholding of increment is enumerated in the rules, the imposition of that penalty can be with or without cumulative effect. 4. I cannot agree with the above submission made on behalf of the respondents. R.15 specifically enumerates the kind of penalties which can be imposed on the members of the Kerala Police found guilty of misconduct. The language of the rule is plain and unambiguous. Hence there is no scope for additing anything to R.15(1)(g) of the rules or deleting anything therefrom by interpretation or construction in Nasiruddin v. Sita Ram Agarwal ( 2003 (2) SCC 577 ) the Apex Court has held as follows: "The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used." It has therefore to be held that R.15 does not empower the authorities under the Rules to impose the penalty of stoppage of increments with cumulative effect. 5. Petitioner has an alternate contention based on the procedure followed by the disciplinary authority leading to Ext. P-3 order. It is contended that the penalty of withholding increment with cumulative effect in the very nature of the consequences flowing therefrom is a major penalty and the same can be imposed, if at all, only after holding a formal enquiry. Except serving a charge memo on the petitioner calling upon him to file his written statement of defence, no enquiry was conducted so as to enable the parties to adduce evidence in support of the charge or in rebuttal of any such evidence. Instead, the Disciplinary Authority simply relied on the report of the Deputy Superintendent of Police who had conducted a preliminary enquiry. Instead, the Disciplinary Authority simply relied on the report of the Deputy Superintendent of Police who had conducted a preliminary enquiry. It was an ex parte enquiry in which the process of collecting evidence was done behind the back of the petitioner. Hence the disciplinary authority was not justified in relying on the enquiry report thus furnished by the Deputy Superintendent of Police. No evidence was adduced in support of the charges in the presence of the petitioner nor was he given any opportunity to challenge the materials collected by the Deputy Superintendent of Police. 6. The contention on the score that formal enquiry was required to be conducted before the imposition of a penalty in the nature of withholding of increment with cumulative effect is raised on the strength of the decision of the Supreme Court in Kulwant Singh Gill v. State of Punjab (1991 Supp.(1) SCC 504). In that decision Supreme Court held as follows: "The impugned order would come within the meaning of R.5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal. When penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. The clock was put back to a lower stage in time scale of pay and on expiry of two years the clock started working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. When the problem is approached from this perspective the effect is as envisaged under R.5(v). R.5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. When the problem is approached from this perspective the effect is as envisaged under R.5(v). R.5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void." In the light of the aforesaid decision of the Supreme Court, the impugned order cannot be sustained, contends the petitioner's Counsel. 7. Since I have found that the penalty of stoppage of increments with cumulative effect was unauthorised I do not think it necessary to go into the submission made on the basis of Gill's case (supra). 8. Learned Counsel for the petitioner submits that the petitioner has already retired from service and there is no scope for conducting a de novo enquiry against him or imposing any other punishment on him. Evidently, the penalty contemplated in the disciplinary rules can be imposed only against employees in service and not against retired employees. Having regard to the facts and circumstances of this case, I do not think it necessary to quash Ext. P-3 in toto. Had a minor penalty as authorised by the rule been imposed, the procedure followed would not have been faulty. The material on record does not indicate that the disciplinary authority had in mind at the very commencement of the proceedings that the petitioner should be awarded a major penalty. Petitioner was served with a memo of charge. He was given the opportunity to offer his explanation and after considering that explanation he was found guilty. Stoppage of increment with cumulative effect being one not authorised by the statute, I hold that, that part of the order imposing the said penalty is unsustainable. I therefore quash Ext. P-3 to the extent the increment bar is with cumulative effect. I direct that the penalty imposed on the petitioner shall be limited to withholding of one annual increment without cumulative effect. In the above view of the matter Exts. P-5, P-7, P-8 and P-10 cannot be sustained. They are hence quashed. Petitioner's pay shall be refixed and worked out without giving cumulative effect to the increment bar. His pensionary benefits also shall be recomputed and paid accordingly. This shall be done within six months. Original Petition is allowed as above. No costs.