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2006 DIGILAW 143 (KER)

The Commissioner of Police v. Abida Beevi

2006-03-01

K.BALAKRISHNAN NAIR

body2006
Judgment :- The petitioners are respectively, the Commissioner of Police, Thiruvananthapuram, the Principal Secretary to Government, Home Department and the Chief Secretary to Government of Kerala. They have approached this Court, challenging Ext.P2 order of the Lok Ayukta, directing them to disburse the pay and allowances, due to the deceased husband of the first respondent herein, for the period from 26.06.1974 to 28.08.1988. The said respondent’s husband was a Police Constable, who was dismissed from service on 26.06.1974, invoking the provisions of Article 311(2)(c) of the Constitution of India, without holding any enquiry into the allegations against him. Finally, the Government, by order dated 30.07.1990, ordered to reinstate the complainants husband and others, who were dismissed along with him, in service as it was found that there was procedural impropriety in terminating their services. The relevant portion of the said order reads as follows: “3. The Governor is satisfied that the procedure that should be followed before taking action under Article 311(2) of the Constitution, prescribed in G.O(P)No.112/72/Home dated 11.7.1972 as amended by G.O(P)No.72/74/Home dated 21.4.1974, had not been strictly adhered to while issuing orders in the above read GO. Further, there was no material to show that the security of the State would have been jeopardized if an enquiry was conducted before taking action against the policemen. In the above circumstances, the Governor has been pleased to revoke the orders dismissing the above nine policemen and to reinstate them in service. 4. Orders as to how the period of absence, in the case of the above policemen is to be regularized, will be issued separately.” Later, the Government, by order dated 01.04.2000, ordered to treat the period of their absence from 26.06.1974 to 30.07.1990 as qualifying service, for the purpose of pension, in relaxation of the Rules, as a special case. Earlier, there was an order passed by the Government, on 01.06.1992, to the effect that the period of their absence from service will be treated as break of service without forfeiture of past service. In modification of that order, the order dated 01.04.2000 was passed. The complainant approached the Lok Ayukta, praying for a direction to release the entire salary payable to her husband from the date of dismissal till the date of his death. The Lok Ayukta, by Ext.P3 order dated 09-05-2005, allowed the claim of the complainant. In modification of that order, the order dated 01.04.2000 was passed. The complainant approached the Lok Ayukta, praying for a direction to release the entire salary payable to her husband from the date of dismissal till the date of his death. The Lok Ayukta, by Ext.P3 order dated 09-05-2005, allowed the claim of the complainant. So, the petitioners herein have filed this Writ Petition, challenging Ext.P.3, mainly on two grounds. The first ground is that the Lok Ayukta has no jurisdiction to entertain the complaint filed by the first respondent herein. The second ground is summarized in paragraph 4 of the Writ Petition, which is quoted below for convenient reference: “As per Rule 29 of part III KSRs, dismissal or removal from service entails forfeiture of past service. As per Note 3 to Rule 31 of Part III KSR in cases where the period of an interruption in service exceeds one year, the benefit of reckoning the period of such interruption in service shall be restricted to the period he was actually in service prior to the date of interruption. In this case, interruption exceeded more than one year and is in excess of the past service. Therefore, it can be seen that the decision taken by the Government as per GO(Rt)No.2544/92/Home dated 1.6.92 treating the period as break in service without forfeiture of past service is itself in relaxation of Rule 29 and 31 Part III KSR and no further relaxation of rules is possible or feasible. The fact that the constables were reinstated in service was not because of the merit in their case, but because of procedural irregularities. Not only that the Government have further issued GO(Rt) No.1358/2000/Home dated 1.4.2000, treating the break period as qualifying service for the purpose of pension in relaxation of rules as a special case. Therefore, if the order of the Kerala Lok Ayukta is implemented, further relaxation of the rules have to be made by the Government. In such circumstances, the order of the Kerala Lok Ayukta, Ext.P3 is liable to be set aside.” On the above grounds, the petitioners seek to quash Ext.P3 order. 2. I heard the learned counsel on both sides. The learned Government Pleader, appearing for the petitioners reiterated the above contentions. In such circumstances, the order of the Kerala Lok Ayukta, Ext.P3 is liable to be set aside.” On the above grounds, the petitioners seek to quash Ext.P3 order. 2. I heard the learned counsel on both sides. The learned Government Pleader, appearing for the petitioners reiterated the above contentions. The learned counsel for the complainant, the first respondent herein submitted that once the order of termination is found to be illegal, the dismissed employees are entitled to get all consequential benefits, including arrears of salary. 3. The technical contention raised by the Government that the Lok Ayukta has no jurisdiction to entertain the complaint filed by the first respondent herein, cannot be accepted. Even assuming the Lok Ayukta has no jurisdiction, if the order passed by it renders justice, this Court need not interfere with it. If the complainant had approached this Court, this Court would have passed an order, directing to grant the reliefs granted as per Ext.P3 order. In such situations, the High Court need not be too astute to interfere with such orders, as held by the Apex Court in Mohammed Swalleh v. IIIrd Additional District Judge (1988 (1) SCC 40). In the said decision, it was held as follows: “It was contended before the High Court that no appeal lay from the decision of the prescribed Authority to the District judge. The High court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground, the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But, the High Court was exercising its jurisdiction under Art.226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case, justice has been done though, as mentioned hereinbefore technically, the appellant had a point that the order of the District Judge was illegal and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case, justice has been done though, as mentioned hereinbefore technically, the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the constitution, then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.” So, the first contention of the State, regarding lack of jurisdiction, is rejected. The second contention is also equally unsustainable. In the case on hand, the Governor has clearly found that the order of termination is illegal. In the light of the extended meaning given to the concept of jurisdiction in Anisminic v. The Foreign Compensation Commissioner (1967 (2) AER 986), an illegal order is an order, outside jurisdiction and therefore, void ab initio and it never had any effect. The learned author, H.W.R. Wade, in his Administrative Law, 8th edition, deals with the above legal position in the following manner: “A tribunal had now, in effect, no power to decide any question of law incorrectly: any error of law would render its decision liable to be quashed as ultra vires. This radical conclusion was first drawn by Lord Diplock in a published lecture, saying that the Anisminic case renders obsolete the technical distinction between errors of law which go to jurisdiction and errors of law which do not.” This drastic development in law has been summarized by Lord Denning in Pearlman v. Harrow School Governors [(1979) QB 56] as follows: “I would suggest that this distinction should now the discarded… The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.” In a recent decision in Boddington v. British Transport Police [(1999) 2 AC 143], Lord Irvine Lord Chancellor has explained how the Anisminic case and its sequels, ‘by extending the doctrine of ultra vires’, ‘made obsolete, the historic distinction between errors of law on the face of the record and other errors of law’. Lord Chancellor said, ‘thus, today, the old distinction between void and voidable acts …………. No longer applies’. 4. In view of the above, the termination being illegal and therefore void, it should be treated that the first respondent’s husband continued in service. Though the Government, while ordering their reinstatement, reserved the right to pass consequential orders concerning the period of absence from duty, the Government can pass orders, only treating the said period as service for all purposes. Rules 29 and 31 of Part III KSR have no application in this case where the dismissal order was set aside for procedural impropriety. The Government have chosen not to take any fresh action against the Policemen. After setting aside the dismissal order, there is no finding of guilt against them, entered in a properly held enquiry. In the case of other Policemen, the Government could have taken some action for their misconduct, following the due procedure. So, it may be said, a concession was granted to them. But, in the case of the first respondent’s husband, as he died on 28.8.1988, no action could have been taken against him. So, he was entitled to get salary till his death. In view of the above position, Ext.P3 order of the Lok Ayukta, challenged in this Writ Petition, is upheld, Accordingly, the Writ Petition fails and it is dismissed.