MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was a Police Constable in the District armed Reserve, Trichur. By order dated 26-6-1974 he was dismissed from service by invoking the provisions contained in clause (c) of the 2nd proviso to art. 311 (2) of the constitution of India . That order was set aside by this court in O. P. 1033/1980 and directed the Government to conduct an enquiry into the conduct of the petitioner and pass appropriate orders in accordance with law. In pursuance to that direction a full-fledged enquiry was held by the 2nd respondent who was appointed Enquiry Officer. The petitioner was served with memo of charges, Ext. P1. The 2nd respondent submitted his report, Ext. P4, to the Government. On the basis of that report the Government issued Ext. P3 show cause notice to the petitioner informing the Government's provisional decision to dismiss him from service and to submit his representation against the same within 15 days of the date of receipt of the notice. Along with that notice, a copy of Ext. P4 report was also served on him. In reply to Ext. P3 the petitioner submitted Ext. P5 representation praying for exoneration from punishment. After considering the entire documents and after consulting the public service Commission, the Government confirmed their provisional decision and ordered dismissal of the petitioner from service with effect from the date of suspension. The said order of dismissal is under challenge.

(2.) THE main argument advanced by the learned Counsel appearing for the petitioner is that the report filed by the Enquiry Officer would show that the petitioner has not committed any of the charges levelled against him. In such a situation, it was not possible for the Government to differ from the conclusions arrived at by the Enquiry Officer and to impose a penalty of dismissal. ID support of this argument the learned Counsel relies on r. 17 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. Clause (i) (a) of that rule is the one emphasised by the learned counsel. As per that provision it is argued that the disciplinary authority after examining the proceedings of the enquiry can come to a conclusion regarding the penalty to be imposed, except in cases where no charges have been made out. As per this provision, according to counsel, when the Enquiry Officer comes to a conclusion that charges have not been made out the disciplinary authority has to accept the said finding and drop further proceedings. In case the Enquiry officer comes to a finding of guilt of the delinquent officer, then the disciplinary authority has got the power to decide on the question of penalty. In other words, it is argued that the disciplinary authority has no power to differ from conclusions, regarding the guilt of the delinquent, arrived at by the Enquiry Officer. I find it difficult to agree with this submission made by the learned Counsel. On facts the enquiry authority, 2nd respondent has found the petitioner to be guilty of some of the charges framed against the petitioner. In paragraph (G) of the findings he has categorically come to the conclusion that Charges 2 to 4 in the memo of charges stand proved in part. On the basis of the findings in paragraphs (A) to (G), entered by the 2nd respondent, he has come to the conclusion that the delinquent officer was guilty of the charges. THE disciplinary authority as per the rules has got the power to differ from the conclusions arrived at by the enquiry officer and can come to its own conclusions. Even if there is some ambiguity in Para. 11 of Ext. P4 report of the 2nd respondent, the Government have come to the conclusion that the petitioner had taken part in organising and inciting the AR men to raise the voice of protest vehemently and conducted in an indisciplined manner, most unbecoming of a member of the police force. On the basis of this finding entered by the Government the petitioner was called upon to show cause why a punishment of dismissal from service should not be imposed on him. THE petitioner gave his written reply to that notice. THE reply was properly considered by the Government while passing Ext. P6 order.