P J ALEXANDER Vs. STATE OF KERALA

JUDGEMENT

(1.) For inquiring into the truth of imputations of misconduct or misbehaviour against the petitioner who is a member of the Indian Police Service, borne on the Kerala cadre, the State Government which is the disciplinary authority and the first respondent in this petition, appointed under R.8(2) of the All India Services (Discipline and Appeal) Rules 1969 first, Shri R. Gopala Shenoy and later Shri P. A Quadir Meeran, the second respondent, as the Inquiring Authority. The Presenting Officer appointed by the first respondent to present on its behalf the case in support of the articles of charge represented before Shri R. Gopala Shenoy that it would not be possible to secure the attendance of all witnesses unless coercive steps were issued to them. As the All India Services Rules did not provide for taking coercive steps against unwilling witnesses to secure their attendance before the inquiring authority Shri R. Gopala Shenoy wrote to the Secretary in charge of the Vigilance Department of the first respondent to clothe him with sufficient powers to take coercive steps for examination of witnesses and in that regard suggested investing him under S.9(2) of the Kerala Enquiries and Summons Act, 24 of 1960, as amended by Act 10 of 1962, for short the State Act, with the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908. The first respondent accepted that suggestion and invested him with those powers. Later when he was succeeded by the second respondent as inquiring authority he also was invested with those powers, Exhibit P2 being a copy of the notification investing him with those powers. It is that notification that is sought to be quashed here.

(2.) The All India Services Rules are those framed under S.3 of the All India Services Act, LXI of 1951. That Section can now be read:

(3.) R.7 of the All India Services (Discipline and Appeal) Rules has constituted the State Government as the disciplinary authority competent to institute the disciplinary proceeding against and subject to the provisions of sub-r.(2) of that Rule to impose the penalties provided for in R.6, on a member of the All India Service if on the date of the commission of the act or omission he was borne on the cadre of the State Government. What sub-r.(2) of R.7 says is that the penalty of dismissal, removal or compulsory retirement should not be imposed except by an order of the Central Government. R.8(2) gives a choice to the State Government. It can appoint the inquiring authority either under R.8 of the All India Services Rules or under the provisions of the Public Servants (Inquiries) Act, 37 of 1850. Under S.8 and 9 of the Public Servants (Inquiries) Act the inquiring authority has the same powers as those given to courts by the Code of Criminal Procedure for summoning witnesses and compelling production of witnesses and disobedience of lawful process of the inquiring authority is made penal. Such provisions are absent in the All India Services Act and the Rules framed thereunder. In the inquiries conducted under them the provision is that evidence has to be produced before the inquiring authority. R.8(12) provides that if the member of the service fails to appear or refuses or omits to plead the inquiring authority should require the presenting officer to produce the evidence by which he proposes to prove the articles of charge. R.8(15) provides that on the date fixed for the inquiry the oral and documentary evidence by which the articles of charge are proposed to be proved should be produced by or on behalf of the disciplinary authority. R.8(16) provides that before close of the case on behalf of the disciplinary authority the inquiring authority may in its discretion, allow the presenting officer to produce additional evidence not included in the original list of documents and witnesses drawn up by the disciplinary authority or may itself call for new evidence or recall or reexamine any witness. After the case of the disciplinary authority is closed and the statement of defence of the member of the service is recorded R.8 (18) provides that the member of the service should produce his evidence.