Writ petition challenging salary recovery order passed due to vehicle loss was allowed. Court set aside recovery order after disciplinary proceedings exonerated petitioner, though directions of Human Rights Commission order to remain intact.
Ext P3 order directing recovery of Rs 10,000 from salary was set aside; Writ Petition allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 9TH DAY OF AUGUST 2021 / 18TH SRAVANA, 1943
WP(C) NO. 7469 OF 2021
PETITIONER/S:
JOBY THOMAS AGED 36 YEARS S/O. P.C. THOMAS, POONISSERIL HOUSE, KUDAYATHOOR P.O, IDUKKI DISTRICT, FORMER SUB INSPECTOR OF POLICE, KOLATHOOR POLICE STATOIN, MALAPPURAM DISTRICT, KERALA. BY ADV SHAJIN S.HAMEED
RESPONDENT/S:
BY ADV. TEK CHAND, SR. GP FOR R1 AND R3 SRI.JOSEPH RONY JOSE FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
S. Manikumar, C. J.
Being aggrieved by Ext. P2 order dated 11.01.2019 in HRMP No. 8202 of 2017 passed by the Kerala State Human Rights Commission and Ext. P3 proceedings of the District Police Chief, Ernakulam dated 02.03.2021, directing recovery of Rs. 10,000/- from the salary of the petitioner and to remit the same to the account of the 4th respondent, instant writ petition is filed for the following reliefs:-
“a) issue a writ of certiorari and call for the records leading to Ext. P2 order dated 11/01/2019 in HRMP.No:8202/2017 of the 2nd respondent Kerala State Human Rights Commission and quash the same.
b) issue a writ of certiorari and call for the records leading to Ext.P3 order passed by the 3rd respondent and quash the same.”
The 4th respondent filed Ext.P1 complaint before the Kerala
State Human Rights Commission, arraying the Sub Inspector of
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Police, Kolathur Police Station, holding charge as on 19.02.2016 and the Revenue Divisional Officer as opposite parties.
According to the petitioner, it is alleged in the complaint that the 4th respondent's lorry, bearing registration number KL-17-D-2437, was seized, alleging transportation of river sand, against which, 4th respondent filed W.P.(c) No. 26293 of 2015 before this Court and the writ court on 01.09.2015, directed the Revenue Divisional Officer, Perinthalmanna, to check the sand, and to take action, on the basis of the report. On examination, it was found that the sand is not river sand. The Geologist reported that if the complainant pays an amount of Rs. 25,000/- as fine, the same could be returned to him. Hence, the RDO ordered to return the vehicle to him, but the opposite party did not return the vehicle saying that the case is pending before the Magistrate's Court. Again, when the complainant approached the RDO, he ordered to release the vehicle as per the judgment in W.P. (c) No. 26293 of 2015 as pendency of case before the Magistrate's Court is not a bar. The Sub Inspector of Police, Kolathur was directed to return the vehicle to the complainant and produce the 'Kaicheetu' before him.
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Petitioner has submitted that on 09.02.2016, when the complainant approached the police station for receiving the vehicle, it was found that all four wheels, tires, tubes, discs, batteries starter, tools etc. were missing from the vehicle. When the complainant informed the said fact to 1st opposite party, he asked him to take the vehicle by placing new wheels and battery. The value of the vehicle was Rs.6 lakhs and the lost parts would value Rs. 1,00,000/-. Further, the 1st opposite party threatened the complainant that he would register a crime against him for obstructing his official duty, if he is not leaving the place. The complainant again went to the station requesting to take steps for releasing the vehicle and he came to know that a false case has been registered that the parts of the vehicle was stolen. Before the Human Rights Commission it was contended that the seizure of vehicle claiming transportation of river sand and the 1st opposite party's careless action as the custodian of the vehicle were unjust and violation of human rights.
The Kerala State Human Rights Commission, after obtaining a report from the Deputy Superintendent of Police, issued notice to the Sub Inspector of Police, Mr. Vishnu, who was holding office on 19.02.2016, after hearing him, passed Ext. P2 order, delegating the 4th
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respondent to approach the civil court, for realizing the amount for damages. However, the Commission went on to find that the 4th respondent is entitled to realize an amount of Rs. 30,000/- from the responsible police officers. It was also ordered that the amount has to be paid by the Home Department, and thereafter, the same has to be realised from the officers. Based on Ext.P2 report, the 3rd respondent passed Ext. P3 order, according sanction to effect recovery of Rs. 10,000/- from the salary of the petitioner and remit the same to the account of the 4th respondent.
“Pursuant to the directions issued by the Kerala State Human Rights Commission in HRMP No.8202/17/PLP dated 11.1.2019, directing the State Police Chief to take strong action after finding out the officers, who are responsible for the carelessness in keeping the vehicle safe through departmental enquiry.
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W.P.(C) No. 7469 of 2021
& I. A. Nos. 1 & 3 of 2021 -7-
notice was given to him before issuing the said proceedings and that petitioner is not a party before the State Human Rights Commission. According to him, no opportunity was given to him by the State Human Rights Commission to rebut the allegations made against the Police Officers with whom the custody of the vehicle was given.
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to accept additional documents marked as Exts. P5 to P8. Reasons assigned in the supporting affidavit are as hereunder:-
“3. On 23/03/2021, when the writ petition came for admission, this Honourable Court has directed me to produce the details of the departmental proceedings initiated against me.
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he had gone to the police station only after 17/02/2016, with the releasing order dated 05/02/2016.
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& I. A. Nos. 1 & 3 of 2021 -10-
State Police Chief has ordered to take steps to effect recovery of an amount of 10, 000/- from me and another. It is further submitted that Ext.P5 to P8 documents are very much necessary for the just decision of the case.”
hereunder:-
“3. On 23/03/2021, when the writ petition came up for admission, this Honourable Court has directed me to produce the details of the departmental proceedings initiated against me. Accordingly, I have produced additional documents Ext.P5 to P8 along with I.A.No.1/2021. Ext.P5 is an order issued by the Inspector General of Police, Zonal Office (South), Thiruvananthapuram, ordering oral enquiry against me and Ext.P6 is the copy of deposition given by the 4th respondent before the enquiry officer.
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Office (South), Thiruvananthapuram is produced herewith and the same may kindly be accepted and marked as additional document Exhibit-P9.
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“ PROCEEDINGS OF THE INSPECTOR GENERAL OF POLICE ZONAL OFFICE (SOUTH), THIRUVANANTHAPURAM
Present: Harshita Attaluri IPS
Disciplinary action - Oral enquiry against Sri Joby Thomas, Inspector of Police, Puthenvelikara PS, in EKM RL-Disposed - Orders issued-reg.
Read: 1. Letter No.A2-13815/2020 NZ Dated 19/10/2020 of IGP, North Zone.
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Order No D1-6892/2020/SZ Dated. 20-04-2021
Based on the Special report received from the Inspector General of Police North Zone, vide letter read as 1st above, an oral enquiry was ordered against Sri.Joby Thomas, Inspector of Police, Puthenvelikara PS (former ISO of Kulathur PS Malappuram) vide order read as 3rd above, authorizing DySP C Branch, EKM RL as the enquiry officer to conduct the enquiry. The allegation is that, the delinquent while working at Kolathur Police station in Malappuram District, committed dereliction in official duty by not protecting a Tipper lorry which was taken into police custody for carrying river sand. The owner of the tipper lorry submitted petition before the KSHRC alleging that the important parts of the lorry was missing and the Commission ordered to recover an amount of Rs. 30,000/ from the responsible police officers who were in charge of the police station.
After the completion of the enquiry, the enquiry officer submitted the PR Minutes drawn up against the delinquent vide letter read as 4th above. It was reported that the allegations against the delinquent were not proven in the enquiry.
I have carefully perused the PR minutes and connected documents. I agree with the finding of the enquiry officer. I Exonerate the delinquent officer of all the charges.
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The disciplinary Proceedings against Sri Joby Thomas, Inspector of Police, Puthenvelikara PS stands disposed of accordingly.
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& I. A. Nos. 1 & 3 of 2021 -15-
directions in Ext. P2 order, we are not inclined to set aside the order passed by the Commission.
Accordingly, writ petition is allowed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY/// P. A. TO JUDGE
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APPENDIX OF WP(C) 7469/2021
| PETITIONER EXH | IBITS |
|---|---|
| EXHIBIT P1 | PHOTOCOPY OF THE COMPLAINT HRMP NO. 8202/17/PLP FILED BY THE 3RD RESPONDENT BEFORE THE HON'BLE KERALA STATE HUMAN RIGHTS COMMISSION ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P2 | PHOTOCOPY OF THE ORDER DATED 11.01.2019 PASSED BY THE KERALA STATE HUMAN RIGHTS COMMISSION ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P3 | PHOTOCOPY OF THE ORDER NO. H1- 54797/2020/E DATED 02.03.2021 ISSUED BY THE 3RD RESPONDENT. |
| EXHIBIT P4 | PHOTOCOPY OF THE JUDGMENT DATED 28.11.2019 IN W.P.C NO. 25833/2019 OF THIS HON'BLE COURT. |
| EXHIBIT P5 | PHOTOCOPY OF THE ORDER NO. D1- 6892/2020/SZ DATED 09.11.2020 ISSUED BY THE INSPECTOR GENERAL OF POLICE, ZONAL OFFICE (SOUTH), THIRUVANANTHAPURAM. |
| EXHIBIT P6 | PHOTOCOPY OF THE DEPOSITION OF 4TH RESPONDENT BEFORE THE ENQUIRY OFFICER ALONG WITH ITS ENGLISH TRANSLATION |
| EXHIBIT P7 | PHOTOCOPY OF THE COMMUNICATION NO. D6- 39885/2019/PHQ DATED 10.02.2021 ISSUED BY THE STATE POLICE CHIEF, KERALA TO THE INSPECTOR GENERAL OF POLICE, SOUTH ZONE & NORTH ZONE |
| EXHIBIT P8 | PHOTOCOPY OF THE LETTER NO. D1/6892/2020/SZ DATED 12.02.2021 ISSUED BY THE INSPECTOR GENERAL OF POLICE, SOUTH ZONE, THIRUVANANTHAPURAM |
| Exhibit P9 | TRUE COPY OF THE ORDER NO. D1- 6892/2020/SZ DATED 20/04/2021 ISSUED BY THE INSPECTOR GENERAL OF POLICE, ZONAL OFFICE (SOUTH), THIRUVANANTHAPURAM |
2 issues framed by the court
Whether recovery from the petitioner's salary can be ordered when disciplinary proceedings subsequently exonerated him of the charges.
Whether the writ petitioner should be granted relief to quash the order directing salary recovery.
JOBY THOMAS
STATE OF KERALA
KERALA STATE HUMAN RIGHTS COMMISSION
DISTRICT POLICE CHIEF, ERNAKULAM
BIJUMON
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
