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2023 DIGILAW 808 (KER)

Amalraj S, S/o Sivadasan v. State Of Kerala

2023-10-18

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

body2023
JUDGMENT : Spoke. Oral judgment dated 16.10.2023 of this Court is recalled. 2. This OP(KAT) is filed by the applicant in OA No.1369 of 2019 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench (for short, “the Tribunal”). 3. The original application was filed seeking to call for the records leading to Annexures A8, A10, A12 & A16 and to quash the same. The Tribunal, after hearing both sides, has rendered the impugned order dated 02.12.2021 finally disposing of OA No.1396 of 2019 with the finding that the imposition of penalty on the applicant is only a minor one, barring of three increments without cumulative effect, which cannot be said to be harsh or disproportionate. It was also held that no serious prejudice would be caused to the applicant and any interference with the impugned orders will have serious ramification in a disciplined force. It is challenging this order, the original petition under Article 227 of the Constitution of India has been filed by the applicant seeking to set aside Ext.P2 order in OA No.1396 of 2019 on 02.12.2021 passed by the Tribunal, . 4. We have heard Sri.Jinson Ouseph, the learned counsel appearing for the petitioner/applicant and Smt.Vinitha.B., the learned Senior Government Pleader appearing for the State. 5. The challenge is against the imposition of penalty of barring of three increments without cumulative effect on the petitioner. The petitioner, who was a Senior Civil Police Officer (Driver) in the District Armed Reserve, was intercepted by the local police and handed over to the police alleging that he was involved in the sale of ganja along with another person. Subsequently, they were arrested for the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'); and pursuant to his arrest and registration of crime for violation of the NDPS Act, he was placed under suspension as per Annex.A2 order dated 17.09.2012. Thereafter, Annex.A3 Memo of Charges was issued to the petitioner and on receipt of Statement of Defence, a detailed enquiry was conducted. Thereafter, Punishment Roll Minutes (hereinafter referred to as 'PR Minutes') was submitted finding that the petitioner has committed serious misconduct in attempting to protect a person, who was an accused in a crime for offence under the NDPS Act. Thereafter, Punishment Roll Minutes (hereinafter referred to as 'PR Minutes') was submitted finding that the petitioner has committed serious misconduct in attempting to protect a person, who was an accused in a crime for offence under the NDPS Act. In the PR Minutes, it is also stated that further actions can be taken on the basis of the orders of the court, due to pendency of a criminal case. As per Annex.A6 proceedings, the petitioner was reinstated in service without prejudice to the prosecution of the criminal case against him. Subsequently, he was acquitted in the criminal case as per Annex.A7 judgment. After acquittal in the criminal case, Annex.A10 order was passed, imposing punishment of barring three increments without any cumulative effect on the petitioner/applicant. The period of suspension was directed to be treated as duty for the limited purpose of pension and gratuity and his pay and allowances for the period was limited to the subsistence allowance already drawn. 6. The petitioner thereafter filed an appeal and review petition, both were rejected. Subsequently, Tribunal, as per Annex.A15 order, set aside the order in the review petition (Annexure A14) and directed to reconsider the review petition. Thereafter, Annex.A16 order was passed rejecting the review petition. Challenging the penalty order as well as the appellate order and the review order, the petitioner approached the Tribunal with the original application contending that in view of the provisions in Section 101(8) of the Kerala Police Act, no penalty can be imposed after acquittal by the criminal court on the same allegations. It was further contended before the Tribunal that since the enquiry officer has stated that the findings in the P.R.Minutes are subject to the orders in the criminal case, no further action can be taken on the basis of acquittal granted as per Annex.A7 judgment. After a detailed consideration, the Tribunal dismissed the original application filed by the petitioner. Aggrieved by the same, the petitioner has approached this Court with the above original petition. 7. We have considered the rival submissions on both sides and perused the records. 8. As per the Judgment dated 06.10.2015 of the Judicial First Class Magistrate-1, Nedumangad, the petitioner, who was accused No.2, was found not guilty of offences punishable under Sections 20(b)(ii)(A) of the NDPS Act and was acquitted U/s.255(1) of the Criminal Procedure Code. 7. We have considered the rival submissions on both sides and perused the records. 8. As per the Judgment dated 06.10.2015 of the Judicial First Class Magistrate-1, Nedumangad, the petitioner, who was accused No.2, was found not guilty of offences punishable under Sections 20(b)(ii)(A) of the NDPS Act and was acquitted U/s.255(1) of the Criminal Procedure Code. Hence, the counsel for the petitioner argued that on the basis of acquittal by the criminal court, no penalty proceedings can be initiated against the petitioner on the basis of the same offence as per Section 101(8) of the Kerala Police Act 2011. 9. Section 101(8)(1) of the Kerala Police Act, 2011 reads as follows: “101. Departmental Enquiry Proceedings— xxx xxx xxx xxx xxx (8)(1) Department level enquiry proceedings may be initiated against any police officer for the same matter even though he was exonerated by a criminal court after trial he shall not be subjected to penalties on the basis of the same facts in department level enquiry. ” 10. Annexure A3, memo of charges reads as follows: OTHER LANGUAGE 11. On receipt of memo of charges, the petitioner gave detailed statement of defence and after a detailed enquiry, PR Minutes was submitted and it was found that there was serious misconduct on the part of the petitioner in attempting to protect a person, who was an accused in crime for offences under the NDPS Act. In the PR Minutes also, it was stated that since a criminal case was pending, further actions could be taken subject to the orders of the court. 12. The petitioner was reinstated in service without prejudice to the pending criminal case by the District Police Chief, Thiruvananthapuram. 13. The allegation in the charge sheet filed before the Judicial First Class Magistrate Court, Nedumangad was in respect of the alleged concealment of possession of 18 small packets of ganja weighing 25 grams by the applicant in a scooter KL-21E 4099 owned by the applicant on 03/08/2012 at 3.45pm at 16 Kallu Bus stop. 14. The prosecution case is as follows: “On 3.8.2012 at 3.45 pm at a place near the bus stop at 16th kallu in Karippoor village CW9, the Grade Sub Inspector, Valiyamala Police Station and party have found the accused possessing 25 grams of ganja in contravention to the provisions of NDPS Act. 14. The prosecution case is as follows: “On 3.8.2012 at 3.45 pm at a place near the bus stop at 16th kallu in Karippoor village CW9, the Grade Sub Inspector, Valiyamala Police Station and party have found the accused possessing 25 grams of ganja in contravention to the provisions of NDPS Act. It is alleged that the ganja was procured by accused No.1 and it was kept concealed in the chamber under the seat of scooter bearing Regn.No.KL 21 E 4099 owned by accused No.2 in 18 newspaper packets and that it was consciously possessed for the purpose of sale. Accused 1 and 2 are therefore alleged to have committed offence punishable U/s.20(b)(ii)(A) of NDPS Act”. 15. The Judicial First Class Magistrate Court acquitted the applicant finding that the prosecution failed to prove beyond doubt that the accused has consciously possessed ganja in his scooter bearing Reg No.KL-21 E 4099 to hold him liable U/s.20(b)(ii)(A) of NDPS Act. But allegation of dereliction of duty and the misconduct was not the issues under consideration before the JFCM Court. It was specifically observed in the PR Minutes that there was serious misconduct on the part of the petitioner in attempting to protect a person, who was an accused in crime for offences under the NDPS Act. 16. The general duties of Police as per Section 3 of the Act reads thus: “3. General duties of police --The Police, as a service functioning category among the people as part of the administrative system shall, subject to the Constitution of India and the laws enacted thereunder, strive in accordance with the law, to ensure that all persons enjoy the freedoms and rights available under the law by ensuring peace and order, integrity of the nation, security of the State and protection of human rights." Similarly, the functions of the Police as stated in Section 4 of the Act are as follows:- “4. The functions of the police -The Police Officers shall, subject to the provisions of this Act, perform the following functions, namely - (a) to enforce the law impartially, (b) to protect the life, liberty, property, human rights and dignity of all persons in accordance with the law, (c) to protect the internal security of the nation and act vigilantly against extremist activities, communal violence, insurgency, etc. (d) to promote and protect arrangements ensuring public security and maintain public peace, (e) to protect the public from danger and nuisance, (f) to protect all public properties including roads, railways, bridges, vital installations and establishments, (g) to prevent and reduce crimes exercising lawful powers to the maximum extent, (h) to take action to bring the offenders to the due process of law by lawfully investigating crimes, (i) to control and regulate traffic at all public places where there is movement of people and goods, (j) to strive to prevent and resolve disputes and conflicts which may result in crimes, (k) to provide all reasonable help to persons affected by natural or man-made disaster, calamity or accident, (l) to collect, examine and, if necessary, to disseminate information in support of all activities of the police and in the maintenance of security of the State, (m) to ensure the protection and security of all persons in custody in accordance with law, (n) to obey and execute lawful commands of competent authorities and official superiors, (o) to uphold and maintain the standards of internal discipline, (p) to instill a sense of security among people in general, (q) to take charge of and ensure the security of persons, especially women and children found helpless and without support in any public place or street, (r) to discharge any duties imposed by any law for the time being in force; (s) to discharge such other functions as may be lawfully assigned to them by the Government, from time to time.” 17. A Police Officer is duty bound to protect the life, liberty, property, human rights, dignity of all persons in accordance with law and also has a duty to instill a sense of security among people in general. The petitioner herein though acquitted in the criminal case mainly on procedural violation and the witnesses being hostile cannot be said to have, not created a doubt in the mind of the general public, by getting involved in this incident. Being a Police Officer, he should have been stood aloof without getting implicated in such criminal offence. Eighteen small packets of ganja weighing 25 grams were found from the scooter bearing number KL-21E 4099 of the petitioner and further alleged that without taking the first accused to the Valiyamala Police Station, the petitioner took deviation, went to Vithura Road. Being a Police Officer, he should have been stood aloof without getting implicated in such criminal offence. Eighteen small packets of ganja weighing 25 grams were found from the scooter bearing number KL-21E 4099 of the petitioner and further alleged that without taking the first accused to the Valiyamala Police Station, the petitioner took deviation, went to Vithura Road. During enquiry, it was found that the first accused, a habitual offender, was the neighbour of the petitioner and was known to him. It is true that Section 101(8)(1) of the Act, says that department level enquiry proceedings may be initiated against any police officer for the same matter even though he was exonerated by a criminal court after trial he shall not be subjected to penalties on the basis of the same facts in department level enquiry. 18. In State of Kerala v. Vijayakumar, [ 2021(4) KLT 35 ], a similar issue was considered by this court and it was held in paragraph 13 of the judgment as follows: “13. However while concluding, the Tribunal in this case has observed in the last sentence of para 16 on internal page No.16 of Ext.P4 final order (See page No.117 of this paper book) that in view of the provisions contained in Sec.101(8)(1) which provide that when the departmental enquiries were initiated on the same set of facts as in the criminal case which ended in an acquittal, then no punishment could be imposed on the applicant. It appears that the said observations may not be as intended and what would have been intended to convey is that, though the departmental proceedings could be initiated in the same matter of case on the basis of which the criminal proceedings arose, once the delinquent is exonerated by the criminal court after trial, then he shall not be subjected to penalties on the basis of the same set of facts (on the basis of the proved facts in the departmental enquiry), which is the same as the proved facts disclosed in the impugned criminal proceedings. The exception would be when there are materials to hold that the facts proved against the delinquent in the department enquiry is different from the facts proved in the criminal trial which exonerated him. The substance and essence of the findings of the Tribunal are as indicated hereinabove and cannot be in any manner disputed in this case. The exception would be when there are materials to hold that the facts proved against the delinquent in the department enquiry is different from the facts proved in the criminal trial which exonerated him. The substance and essence of the findings of the Tribunal are as indicated hereinabove and cannot be in any manner disputed in this case. Moreover, it has to be borne in mind that the abovesaid provision in Sec.101 (8)(1) has been engrafted by the State legislature themselves and therefore there cannot be any two views that the provisions contained in the Kerala Police Departmental Enquiries Punishment & Appeal Rules though framed under the provisions of the Kerala Public Service Act, is subservient to the provisions contained in the Kerala Police Act, since the subject matter of Sec.101(8)(1) is departmental enquiry proceedings taken in pursuance of the abovesaid statutory rules.” In the afore judgment, the malayalam version of Section 101(8)(1) of the Act was considered which reads thus; OTHER LANGUAGE Hence, it is clear that once the delinquent is exonerated by the criminal court after trial, he shall not be subjected to penalties on the basis of the same set of facts which is the same as the proved facts disclosed in the impugned criminal proceedings. But the exception to the afore provision would be when there are materials to hold that the facts proved against the delinquent in the departmental enquiry are different from the facts proved in the criminal trial which exonerated him. Admittedly, the criminal court did not get an occasion to consider the misconduct of a serving officer, by getting involved in the criminal offence. The offence for which the petitioner was chargesheeted cannot be taken into consideration for imposing penalty on the petitioner in departmental proceedings since, the petitioner was acquitted. However, the allegation of misconduct and dereliction of duty can be taken for consideration in respect of departmental proceedings. We have no doubt that there was misconduct as well as dereliction of duty cast upon the petitioner as a Police Officer. The involvement in a narcotic case is highly unacceptable in Police Department which is in utter violation of the duties cast upon them. The department was right in proceeding against the petitioner on the allegation of misconduct. The criminal proceedings as well as the departmental proceedings are entirely different. The involvement in a narcotic case is highly unacceptable in Police Department which is in utter violation of the duties cast upon them. The department was right in proceeding against the petitioner on the allegation of misconduct. The criminal proceedings as well as the departmental proceedings are entirely different. Section 101(8)(1) of the Act clearly says that departmental proceedings can be initiated against the police officer for the same matter, but not on the basis of same facts. The evidence available before the enquiry officer is sufficient to establish the misconduct of the petitioner. The involvement of the employee in the criminal offence, being a Police Officer can be proceeded against departmentally though he was acquitted in the criminal offence. The acquittal of the accused may be on several grounds. But the conduct of the officer by getting involved in such crimes can be considered while conducting departmental enquiry. However, the imposition of punishment of barring three increments without cumulative effect is after considering the criminal case as well as the misconduct. We find force in the argument that the allegation of implication in criminal offence cannot be considered again in departmental proceedings once the petitioner is acquitted, but certainly the misconduct and dereliction of duty can be considered while initiating departmental proceedings. 19. In Bhagat Ram v. State of Himachal Pradesh [ (1983) 2 SCC 442 ], it was opined as follows:- “.......It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art.14 of the Constitution”. The punishment of barring three increments with cumulative effect was passed taking into consideration the entire allegations against the petitioner, even the allegations which ended up in acquittal. We do not find any reason to exonerate the petitioner completely from the punishment. Hence, we are of the view that the petitioner deserves imposition of penalty but the punishment imposed should be proportionate with the offence alleged and the respondents shall revisit the punishment imposed. Accordingly, the OP(KAT) is disposed of directing the respondents to revisit the penalty imposed upon the petitioner. However it is made clear that the direction is not to exonerate the petitioner from the departmental proceedings but only to impose penalty proportionate with the offence committed.