Partly allowed

Percy Joseph Desmond v. State of Kerala

Kerala HC24 Oct 2016WP(C)/30771/2014

Case brief

AI extract

What is this about?

This writ petition challenged the Government order cancelling proceedings against police officers on grounds of pendency of criminal charges. The Court set aside the order, directing the Government to reinvestigate considering the petitioner's acquittal and findings of custodial torture.

What did the court decide?

Exhibit P12 set aside; 3rd respondent directed to look into the matter and pass orders within four months after hearing all parties.

Percy Joseph Desmond Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938

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WP(C).No. 30771 of 2014 (V)

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PETITIONER(S):

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PERCY JOSEPH DESMOND, SON OF SRI.DESMOND, AGED 52 YEARS, PERMANENTLY RESIDING AT ''SHREYAS'', LANE NO.6, AMBELIPPADOM ROAD, ERNAKULAM.

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BY ADVS.SRI.C.S.DIAS,

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SRI.N.K.SUBRAMANIAN,

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SMT.B.BINDU.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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2. THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.

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3. THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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4. T.P. SENKUMAR, IPS, DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, STATE OF KERALA, PRISONS HEAD QUARTERS, POOJAPPURA, THIRUVANANTHAPURAM- 695 012.

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R1 TO R3 BY GOVT. PLEADER SRI.BIJOY CHANDRAN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 30771 of 2014 (V)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 A TRUE PHOTOCOPY OF THE INVESTIGATION REPORT SUBMITTED BY THE SENIOR MANAGER OF THODUPUZHA BRANCH OF THE UNION BANK OF INDIA TO THE DEPUTY GENERAL MANAGER, UNION BANK OF INDIA, REGIONAL OFFICE,THIRUVANANTHAPURAM.

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EXHIBIT P2 A TRUE PHOTOCOPY OF THE CERTIFICATE DATED 17-04-2012 ISSUED BY THE DEPUTY GENERAL MANAGER OF THE UNION BANK OF INDIA.

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EXHIBIT P3 A TRUE PHOTOCOPY OF THE ORDER DATED 21-02-2012 OF THE HONOURABLE KERALA STATE HUMAN RIGHTS COMMISSION IN H.R.M.P NO.2913 OF 2011.

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EXHIBIT P4 A TRUE PHOTOCOPY OF THE G.O(RT) NO.1533/2012/HOME DATED 22-05-2012.

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EXHIBIT P5 A TRUE PHOTOCOPY OF THE NOTE DATED 29/05/2012 SUBMITTED BY SMT R.SREELEKHA, IPS TO THE THIRD RESPONDENT.

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EXHIBIT P6 A TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WRIT PETITION (CIVIL) NO.15555 OF 2012.

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EXHIBIT P7 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 11/03/2014 OF THIS HONOURABLE COURT IN WRIT APPEAL NO.859 OF 2013.

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EXHIBIT P8 A TRUE PHOTOCOPY OF GO(RT) NO.2654/2014/HOME DATED 07/10/2014.

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EXHIBIT P9 A TRUE COPY OF PROCEEDINGS NO.83459/H1/2014/HOME DATED 25/10/2014 OF THE STATE PUBLIC INFORMATION OFFICER UNDER THE RIGHT TO INFORMATION ACT, HOME (H) DEPARTMENT.

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EXHIBIT P10 A TRUE PHOTOCOPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE FOURTH RESPONDENT.

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EXHIBIT P11 A TRUE PHOTOCOPY OF LETTER NO.190/CAMP-DGP(P) 2014 OF THE FOURTH RESPONDENT.

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EXHIBIT P12 A TRUE COPY OF THE G.O.(RT) NO.3088/2014/HOME DATED 22/11/2014.

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EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN C.C. NO.856/2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, THODUPUZHA.

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RESPONDENT'S ANNEXURE:-

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ANNEXURE R4A COPY OF THE ENQUIRY REPORT.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 30771 of 2014

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----------------------------------------------Dated this the 24^th October, 2016

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JUDGMENT

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This writ petition is filed challenging Exhibit P12 order passed by the Government keeping in abeyance the disciplinary proceedings initiated against certain police officers on the basis of Exhibit P10 order. It is contended that in respect of an incident, which happened on 26.7.2011, the writ petitioner, who was a Branch Manger of the Union Bank of India, had been taken into custody by the jurisdictional police and had been subjected to custodial torture. A crime was also registered against the petitioner alleging offences under Section 119(1)(a) of the Kerala Police Act, 2011. It is contended that by Exhibit P3, the State Human Rights Commission, before whom the petitioner had placed a complaint regarding his ill treatment at the hands of the Police, had directed the State Police Chief to see that the investigation is conducted fairly, despite police officers being involved in the matter and to see that appropriate measures are taken.

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By Exhibit P7 judgment dated 11.3.2014, a Division Bench of this Court had noticed the contentions of the petitioner and the learned Special Government appearing for the State with regard to the action taken against the police officers in question. It had been stated that though steps were taken to proceed with the disciplinary action against

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the officers, the same had been kept in abeyance, since final report had been filed charge sheeting the petitioner herein on the basis of the crime registered against him and cognizance was also taken. The petitioner had contended that it was on the basis of Exhibit P15 note that the proceedings against the police officers were kept in abeyance. The learned Special Government Pleader had assured the Division Bench of this Court that final orders would be passed in the matter by the Government at the earliest. This submission was recorded. However, it appears that by Exhibit P8 dated 7.10.2014, the Government found that there were inconsistencies in the reports of enquiry submitted by the District Police Chief, Idukki and the Superintendent of Police, ISIT, Ernakulam. Therefore, a further comprehensive enquiry for taking a final decision on the issue of reviving or keeping in abeyance the Government order directing departmental inquiry was thought necessary and the 4^th respondent was directed to look into the matter. It is contended that on the basis of Exhibit R4(a) report allegedly submitted by the 4^th respondent on 4.11.2014, Exhibit P12 order dated 22.11.2014 has been issued by the Government cancelling the order directing the initiation of the disciplinary proceedings.

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WP(C).30771/14

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Heard learned counsel for the petitioner and the learned Government Pleader.

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Learned counsel for the petitioner would contend that the reasons stated before this Court while passing Exhibit P7 judgment were that the criminal case registered against the petitioner had been taken cognizance of and was pending trial. Apart from Exhibit P5 report, this was a circumstance, which was pointed out as a reason for deciding not to proceed with the enquiry against the police officers. Learned counsel for the petitioner would submit that the criminal case registered against him has ended in an honourable acquittal by Exhibit P13 judgment dated 29.3.2016. It is contended by learned counsel for the petitioner that apart from exonerating the petitioner from all the charges against him, Exhibit P13 goes further to find that he had been subjected to custodial torture at the hands of the police.

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The reason stated in Exhibit P12 for cancelling the Government order dated 22.5.2012 is only that there are serious inconsistencies in the statements and medical certificate produced by the petitioner and further that the matters are pending trial before the competent criminal courts in C.C.No.856 of 2011 and C.C.No.973 of 2012. The pendency of a criminal case against an officer of the Government cannot be a reason for cancelling disciplinary proceedings

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WP(C).30771/14

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already initiated against him. This aspect has been admitted even in the counter affidavit filed by respondents 1 to 3 in paragraphs 11 and 12. It is admitted therein that only passing of final orders have to await the decision in criminal case in appropriate cases.

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Learned Government Pleader appearing for the respondent would submit that in normal cases where criminal cases are pending on identical charges, the disciplinary proceedings would have to wait the conclusion of such criminal cases. However, I notice from Exhibit P12 that what has been done in the instant case is a complete recall of Exhibit P4 order directing the initiation of disciplinary proceedings by pressing into service the reason that criminal cases are pending in the matter. Such a cause of action is not supported by any provision of law which has been brought to my notice. In the matter of criminal cases pending with regard to the incident which allegedly happened on 27.6.2011 also, the petitioner has been given an honourable acquittal by Exhibit P13 judgment. As of now, the criminal proceedings initiated against the petitioner stand concluded in his favour. It is further submitted that criminal cases against the police officers are also pending before this Court on the question of sanction for prosecution and the trial in those cases have been stayed. In the above circumstances, it may not be open to the Government to now contend

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WP(C).30771/14

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that since criminal cases are pending, the question of disciplinary action will not be taken up by the Government. Such a stand cannot be countenanced in view of the finding contained in Exhibit P3 as well as in view of the assurance given by the Government before a Division Bench of this Court which has been recorded in Exhibit P7 judgment. Exhibit P8 order which entrusted the 4^th respondent to submit a comprehensive report as regards the inconsistencies of the reports submitted earlier in the matter, according to me, would go against the submission made before this Court which was recorded in Exhibit P7 judgment. Exhibit P12 order which proceeds on the basis of Exhibit R4(a) report, which, in turn, was operative by Exhibit P8 cannot, therefore, be sustained. In any view of the matter, the findings contained in Exhibit P13 judgment has to be looked into by the Government before further actions are taken in this regard. I am of the view that Exhibit P12 which recalls Exhibit P4 order of the Government earlier passed is not informed by a proper process of reasoning and also is against the undertaking recorded in Exhibit P7.

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In the above circumstances, Exhibit P12 is set aside. The 3^rd respondent is directed to look into the entire matter especially in view of Exhibits P3 and P13 and take a decision with regard to the steps to be taken in pursuance of Exhibit P4. Any discrepancy in the report

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WP(C).30771/14

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submitted by the District Police Chief and any other officer as pointed out in Exhibit P12 will be looked into by the 3^rd respondent and orders passed as to the future course of action. The petitioner shall be given an opportunity of being heard before orders are rendered by the Government in this regard. Before final orders are passed by the 3^rd respondent as directed above, all persons, who were required to be heard shall also be given a notice and hearing. Orders as directed above shall be passed by the Government within four months from the date of receipt of a copy of this judgment.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN JUDGE

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vgs24/10

Percy Joseph Desmond v. State of Kerala

Case brief

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Percy Joseph Desmond v. State of Kerala

Case brief

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