B RADHAKRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner while working as a Police Constable in Alappuzha North Police Station was suspended from service pending enquiry. Ext. P1 charge sheet with statement of allegations was issued to the petitioner. The allegations against the petitioner in Ext. P1 were that at about 9.30 p.m. on 27.12.1991 the petitioner who was detailed for law and order duty abstained from duty, went to the shop of one Sri. Habee Rahman in front of S.D. V. Girl's High School in an intoxicated state, asked him to close down the shop, threatened him, abused him in such a way as to evoke communal passion and thus misused his official position and committed misconduct. By Ext. P2, he denied the charges. An enquiry was conducted. The Enquiry Officer found that the charges leveled against the petitioner have been proved.

(2.) By Ext. P4, the Disciplinary Authority, who agreed with the findings of the enquiry officer imposed on the petitioner the punishment of barring of next three increments with cumulative effect by order No. H1-5/O.R./92A (A.D.O. 380/92) dated 13.8.1992. Ext. P5 appeal filed by the petitioner against Ext. P4 order was disposed of by Ext. P6 order holding that the appeal does not deserve any consideration on merits and that a lesser punishment will meet the ends of justice and accordingly modified the punishment as withholding of increments for two years with cumulative effect. His further representation and review petition were rejected by the Inspector General of Police and Government by Exts. P7 and P9 orders respectively. Petitioner challenges Ext. P4, P6, P7 and P9 orders in this original petition contending that he is not guilty and that the entire action taken against him are illegal.

(3.) His main attack is on the proceedings adopted in the enquiry and findings of the enquiry officer. The procedural irregularities alleged were that : (1) The petitioner was subjected to medical examination by Dr. Shahul Hameed of Medical College Hospital, Alappuzha. The certificate issued by that doctor was produced in evidence in the oral enquiry. Relying on that certificate, the petitioner was found guilty of the allegation of having consumed alcohol. But Dr. Shahul Hameed was not examined as a witness in the course of the oral enquiry and the petitioner was not afforded and opportunity to cross-examine him. (2) The preliminary enquiry was conducted by PW6 Circle Inspector of Police, Alappuzha Town. In the course of that preliminary enquiry he had questioned PWs. 1 to 5 and recorded their statements. Those statements were marked as exhibits in the course of oral enquiry and relied on to enter finding against the petitioner. But in the list of documents in Ext. P1 they were not included. The petitioner was not afforded an opportunity to peruse them or take down extracts. (3) Findings are not supported by evidence as in the enquiry out of five persons examined in support of the charges, three did not support the charges. Apart from the attack on the enquiry proceedings and findings, it was also contended that disciplinary authority as well as the appellate authority did not apply their mind while passing Exts. P4 and P6 orders. It was also contended that Exts. P7 and P9 orders are not speaking orders and are liable to be set aside. Let me consider these contentions in seriatim.