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2010 DIGILAW 137 (KER)

V. Devaraj v. Director General Of Police, Tvm.

2010-02-16

C.T.RAVIKUMAR

body2010
Judgment : 1. The petitioner is working as a Detective Inspector in the Crime Branch CID, Kozhikode. While the petitioner was working as Circle Inspector of Police, Sulthan Bathery disciplinary action was initiated against him as per Ext.P2 Memo of Charges. During its pendency, the DPC (Departmental Promotion Committee) (Higher) met on 19.2.2006 for preparing the select list of Circle Inspectors fit for promotion as Deputy Superintendent of Police, for the year 2005 for the anticipated vacancies in the year 2006. Admittedly, it is the pendency of the said disciplinary proceedings initiated for imposition of a major penalty as per Ext.P2 that resulted in the non-inclusion of the petitioner in the said select list for the year 2005. 2. Admittedly, said disciplinary action initiated as per Ext.P2 culminated in imposition of barring of one increment for two years with cumulative effect. Ext.P9 is the said order of the disciplinary authority. Though an appeal was preferred against Ext.P9 it was rejected as per Ext.R1(a) dated 12.10.2009 on the ground of delay. The contention of the petitioner is that as per 15(1)(g) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, hereinafter referred for brevity 'KPDIP & A Rules' only, the said penalty imposed on the petitioner is only a minor penalty. But in the counter affidavit filed on behalf of the respondents, the stand taken by them is that the penalty imposed on the petitioner viz., barring of one increment for two years with cumulative effect is a major penalty. It is based on such assumption that the petitioner's case was not reviewed though an Ad-hoc DPC(Higher) considered his claim for inclusion in the said list for the year 2005. The said ad-hoc DPC was met on 5.5.09 and as is obvious from Ext.R1(a) it was issued subsequent to the said ad-hoc DPC. The respondents must have reached into such a conclusion that the penalty imposed on the petitioner is a major penalty presumably on account of the fact that withholding of increments with cumulative effect was brought under major penalties as per amendment to Rule 11(1) of the Kerala Civil Services(Classification, Control and Appeal)Rules, 1960 by inserting item(vA) by G.O(P)No. 28/2002/P&ARD dated 16.5.2002 published as per SRO No. 409/2002 in Kerala Gazette Extra-ordinary No. 72 dated 27.5.2002. The relevant provision in this case viz., Rule 15(1) (g) of the KPDIP&A Rules, is worthy to be extracted in the context of the said rival contentions and the same reads thus:- "15. Penalties:-(1) The following penalties may, for good and sufficient reasons and as provided under these rules, be imposed upon members of the Services, namely:- a.... b.... g. Withholding of increments or promotion including stoppage at an efficiency bar." 3. To ascertain the nature of the said penalty KPDIP & A Rules especially Rule 17, have to be looked into. The major penalties are classified under Rule 15(1)(i), (j), (k),(l) and (m). Obviously, still 15(1)(g) is not brought under that classification and hence withholding of increments with or without any hedge under the KPDIP & A Rules can still be construed only as a minor penalty. I am fortified in my view by a Division Bench of this Court reported in State of Kerala Vs. T.M. Ranganathan (1997(2)KLJ 239). ".......This reduced the last pay drawn by him and it had also marginally affected his pension. In that view of the matter the learned Single Judge held that the impugned order of penalty had a cumulative effect. But we are unable to accept this view for the reason that in the Kerala Police Departmental Inquiries Punishment and Appeal Rules, it is specifically stated that the withholding of increments or promotion is a minor penalty. The major penalties are classified under Rule 15(i), (j), (i)(1) and (m). They are the reduction to a lower rank in the seniority list or to the lower post or time scale, compulsory retirement, removal from service of the State Government or dismissal from service of the State Government. As the penalty imposed on the respondent does not come under any of this category and it comes only under rule 15(1)g. We can only hold that it is a minor penalty. Therefore a full-fledged enquiry is not necessary and an oral enquiry will satisfy the rules provided under the Kerala Police Departmental Inquiries, Punishment and Appeal Rules 1958." In the circumstances, I am inclined to accept the contention of the petitioner that the penalty imposed on the petitioner as per Ext.P9 is only a minor penalty. Now the question is with regard to the entitlement of the petitioner to the reliefs sought for in the Writ Petition. Now the question is with regard to the entitlement of the petitioner to the reliefs sought for in the Writ Petition. Admittedly, no steps have so far been taken by the respondents to convene review DPC to consider the case of the petitioner for inclusion in the select list for the year 2005, after taking the penalty imposed on him as per Ext.P9 as a minor penalty. Such an action should have been taken especially in view of the statement in paragraph 2 of the counter affidavit. In paragraph 2, it has been stated that the preparation of select list was conditional as regards the petitioner and it was subject to the outcome of the disciplinary action initiated against him as per Ext.P2. A scanning of the contentions in the counter affidavit would reveal that it is only on the wrong assumption on the part of the respondents that the penalty imposed on the petitioner as per Ext.P9 is a major penalty that no review DPC was convened to consider the petitioner's claim for inclusion in the aforesaid select list. In view of my finding that the punishment imposed on the petitioner as per Ext.P9 is only a minor penalty the respondents are bound to convene a review DPC to consider the claim of the petitioner for inclusion in the select list of Circle Inspector fit for promotion as Dy. SPs for the year 2005. In the said circumstances, there will be a direction to the respondents to take appropriate steps for convening a review DPC for considering the claim of the petitioner for inclusion in the select list of Circle Inspectors, in the year 2005, for promotion to the post of DySP. The respondents shall convene such a review DPC to consider the claim of the petitioner as aforesaid, expeditiously. The first respondent shall endeavour to convene such a review DPC in terms of the above direction on or before 30.3.2010. This Writ Petition is accordingly disposed of.