State of Kerala and Others vs P.C. Kuriakose

Antony Dominic, J.—The Respondents in O.P. No. 13003/1999 are the Appellants herein. The original petition was filed by the Respondent herein, challenging Ext.P6 appellate order and Ext.P9 revisional order of the Government confirming Ext.P6.

Pursuant to a disciplinary proceedings, by Ext.P5 order, the Respondent was imposed a punishment of barring two increments with cumulative effect. He filed an appeal before the appellate authority. By Ext.P6 order, the appellate authority enhanced the punishment by barring three increments with cumulative effect. Aggrieved by the aforesaid order, Respondent filed a revision before the Government, which was rejected by Ext.P9 order. By the judgment under appeal, the learned Judge quashed Exts.P6 and P9 on the short ground that, in the absence of a specific power conferred on the appellate authority, the appellate authority could not have enhanced the punishment. It is aggrieved by the judgment, this writ appeal is filed.

The contention raised by the learned Government Pleader for the Appellants is that, having regard to the provisions of Rule 35 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, it was well within the power of the appellate authority to have enhanced the punishment.

Rule 35 reads as under:

Points to be considered by appellate authority-

(1) In the case of an appeal against an order imposing any penalty specified in Rule 15 the appellate authority shall consider:

(a) whether the facts on which the order was based have been established;

(b) whether the facts established afford sufficient ground for taking action; and

(c) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such order as it thinks proper:

Provided that -

(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose;

(ii) no order imposing an enhanced penalty shall be passed unless the Appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty and

(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (j), (k), (l) and (m) of Sub-rule (1) of Rule 15 and an enquiry under Rule 6 by the authority specified in Rule 8 has not already been held in the case, the appellate authority shall itself hold such enquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such enquiry in the matter provided for in Rule 17 pass such orders as it may deem fit.

A plain reading of the provisions of Rule 35 shows that, it is well within the power of the appellate authority to enhance the punishment, provided the procedural formalities laid down are complied with. A reading of Ext.P6 appellate order itself shows that, on considering the appeal and other materials, the appellate authority issued show cause notice dated 10.11.1995, calling upon the Respondent to show cause why the punishment shall not be enhanced. On receipt of the notice, Respondent submitted his explanation dated 18.01.1995 and it was considering the above materials and thus, in compliance with the provisions of Rule 35 that the appellate authority enhanced the punishment. Therefore, the conclusion of the learned Single Judge that enhanced punishment could not have been imposed on the Respondent in the absence of specific power on the appellate authority has been arrived at overlooking the provisions of the above Rule.

For the aforesaid reason, we set aside the judgment of the learned Single Judge and dismiss the writ petition.

Writ appeal is allowed.