M.R. Hariharan Nair, J.
1. Petitioner is a Police Constable. It was alleged that on 20.7.1989, while on sentryduty from 2 p.m. to 4 p.m., the petitioner hired an autorickshaw driven by one Shajiand reached Vattekkadu, from where he seized some spurious liquor possessed byone Subran and that Subran was released without registering any case. There was anenquiry ordered by the Superintendent of Police, Trichur. Based on the enquiry report,Ext. P2 order was passed imposing punishment of withdrawing two increments withcumulative effect. It is the legality and propriety of the said proceeding that is underchallenge in this Original Petition.
2. The learned counsel for the petitioner submitted that the punishment imposedherein is really punishment of reduction to a lower rank and that as such the procedurefor imposing major penalties should have been followed. Yet another argument wasthat the enquiry was defective in so far as statements recorded from the witnessersduring preliminary enquiry were relied on. It is argued that this was done in such away that the delinquent officer did not get an opportunity to understand what exactlywas the purport of the statement given by different witnesses at the preliminary enquiry.Lastly, it is argued that after the findings were received, there was no opportunity tothe petitioner to show cause against the proposed punishment.
3. The enquiry in question is governed by the provisions of the Kerala PoliceDepartmental Inquiries, Punishment and Appeal Rules, 1958. Rule 15 of the said Rulesprovides for different types of penalties under classification (a) to (j). Withholding ofincrements comes under Clause (g). It is clause (j) that provides for reduction tolower rank in the seniority list or to a lower post or time-scale. A perusal of Ext. P2order shows that what was imposed in the present case was only withholding ofincrements with cumulative effect and that there was no punishment of reduction tolower rank imposed in the present case. It may be that the consequence of thepunishment imposed in this case would be to deprive the petitioner of some monetarybenefit and reduction in rank also might have the impact of adverse monetary impact.That does not mean that the two punishments are identical or even similar.Notwithstanding the punishment, he continues to be in the same rank; the only adverseeffect being the non-receipt of increment which would otherwise have been possible.The argument of the learned counsel that the two punishments were identical hastherefore to be rejected. It necessarily follows that the procedure prescribed inRule 17(1)(b), which applies only to imposition of major penalties, is inapplicable in thepresent case. Of course, reduction in rank which is a punishment under Rule 15(1)(j)comes within the scope of Rule 17(1)(b); but as already mentioned, the punishmentimposed in the present case is not under Sub-rule (1)(j) but under Sub-rule (1)(g) only. Inthe circumstances, the contention that there was defective procedure followed in thepresent case has to fail.
4. The contention that there was no sufficient opportunity to the petitioner to establish his innocence for want of the copies of statements recorded during preliminaryinquiry also has to fail for the reason that the Enquiry Officer, before calling upon thepetitioner to cross-examine the witnesses, had, in fact, read out the depositions recordedat the preliminary stage. I have perused the enquiry file. Copies of the relevantdepositions are contained in pages 51 to 68. In the statement of PW-1 Shaji availablein page 51 at the concluding portion of the chief examination, it is recorded thatExts. P1(A) and P1(B) were read over to the witness and that the witness stated thathe had, in fact given such a statement and did not want to state anything more. It wasthereafter that the petitioner was called upon to cross-examine that witness. A readingof the earlier statement in the presence of the petitioner posted him with sufficientinformation regarding the contents of the earlier statement and it is futile for him tocontend that the cross-examination had to be made without being aware of what wasmentioned in the earlier statement.
5. PW-3, in chief examination, stated that his earlier statements (marked asExts. P2(A) and P2(B)) had been read over to him during chief examination and thecross examination of the witness was with reference to the contents of thosestatements. PW-4, in his chief examination referred to his earlier statements (P3(A)and P3(B) being read over to him in the course of recording evidence on 20.2.1990and he was also cross-examined by the petitioner with reference to the details containedin those statements. PW-6, in his evidence, states about his earlier statement(Ext. P4) which was read over to him on 20.2.1990 on which date he was cross-examinedat length by the petitioner. PW7 also admits in his chief examination that hisearlier statement (Ext. P5) was read over to him. All these witnesses admitted theirearlier statement s and it was in these circumstances, that the Enquiry Officer did notchoose to reproduce the contents of the earlier statement in the relevant subsequentstatements.
6. None of the provision in the Kerala Police Departmental Inquiries, Punishmentand Appeal Rules makes it mandatory that the Enquiry Officer, should, during theregular enquiry, re-record the entire statements given by the witnesses during thepreliminary enquiry. I am convinced that there was no suppression of relevant materialwhich had prejudiced the delinquent officer in his defence. May it also be mentionedhere that the petitioner, at no stage of enquiry, protested against the procedure ordemanded copies of any of the earlier statements. In these circumstances, the contentionregarding prejudice and improper procedure, alleged by the petitioner now, has no legsto stand on.
7. I shall now refer to some of the decision cited by the learned counsel for thepetitioner. Ranganathan v. State of Kerala (ILR 1996 (1) Kerala 201) was relied onin support of the contention that the punishment imposed in the case, though styled aswithholding of increments, actually amounts to reduction in rank, which is a majorpunishment. On a perusal of the decision I find that the facts of the case weredifferent. That was a case where the delinquent was due to retire before expiry ofthe period of punishment resulting in permanent reduction in pension. That is not theposition in the present case and that makes all the difference.
8. The decision in State of Mysore and Ors. v. Shivabasappa ShivappaMakapur (AIR 1963 SC 375) relied on by the petitioner was also a case of differentfacts. There the enquiry in question was governed by the Bombay Police Manual,according to which, ti was essential that the officer conducting the inquiry shouldrecall all necessary witnesses in support of the charge and in the defaulter's presence,has to read out any statements they may have given in the preliminary inquiry andrecord, if necessary, any further statements they may have to make. In the rulesapplicable to the present petitioner there is no such specific stipulation. Nevertheless,the Enquiry Officer has substantially followed the same procedure by reading out tothe witness his earlier statement in the chief examination itself so that the petitioner,who was present, could understand the full scope and purport of the statements beforehe proceeded to cross-examine the witness. Hence there is no prejudice cause to thepetitioner in the said matter.
9. Kuldeep Singh v. Commissioner of Police & Ors. (1999) 2 SCC 10) citedby the petitioner is also a case of different facts There the crucial document was avoucher for Rs. 1,000/-. That document was not mentioned in the charge sheet. Onthe other hand, the charge mentioned that only two other documents were proposed tobe relied on; namely, a copy of the report of the SHO against the petitioner therein anda copy of the labourers' statement. The punishment imposed in the case was interferedwith as there was violation of principles of natural justice in so far as the crucialdocument was withheld from the notice of the petitioner and yet relied on. factsthe said decision also can be distinguished.
10. Yoginath D. Bagde v. State of Maharashtra (1999) 7 SCC 739) was a casewhere the disciplinary authority decided to go against the finding of not guilty enteredby the Inquiry Authority. It was considering the fact that the findings on the enquirywere all in favour of the delinquent officer and also considering the fact that theDisciplinary Authority did not give any opportunity of hearing to him before taking adifferent decision regarding delinquency that the Apex Court set aside the punishment.As far as the present case is concerned, the enquiry report itself was against thepetition and there is no provision in the rules concerned warranting communicationof the report to the delinquent before acting upon it.
11. K.P.S.C. v. Premprakash (2000 (2) KLJ 357) was relied on the show thatwhen the evidence is oral, normally the examination of the witness in its entirety,should take place in the presence of the party charged, who will have full opportunityto cross-examine him. In fact, the decision in the said case is one against the delinquentofficer. It was the Kerala Public Service Commission, who challenged the decreepassed by the Civil Court granting benefits to the delinquent, who had filed the suitseeking to set aside the disciplinary action taken against him. This Court held that insuch a suit the court need only ensure that rules of natural justice were complied witheven in the matter of enquiry and that if there was sufficient compliance with the rulesof natural justice, it was not for the Court to interfere or to act as an appellate bodyand consider whether the findings of the authority were really justified. That apart, inthe present case, as already mentioned, before calling upon the petitioner to cross-examine7 witnesses the statement given by these witnesses at the preliminary enquirystage had been read out in full in the presence of the petitioner and as such he hasabsolutely no justification even for making a contention that he was unaware of thecontents of the earlier statement.
12. In these circumstances, I am of the view that the petitioner has miserablyfailed to show any valid ground justifying interference with Ext. P2 order. The Policeis a disciplined force and it is essential that proper behavioral patterns are enforced.When the allegations against the petitioner are considered, the punishment imposingminor penalty was certainly one of lesser grade than what was due to the petitioner inthis case. The authorities, if at all they erred, have only erred in favour of the petitioner.
13. The petition, in the circumstances, is found to be without and it is accordinglydismissed.