Delinquent Public Servant Has Right To Be Tried Within Reasonable Time; Fair Process Is Central To Dispensation Of Justice: Kerala HC

The Kerala High Court said that the delinquent public servant has a right to be tried within a reasonable time as fair process is central to the dispensation of justice.

The Court was deciding a batch of petitions relating to the disciplinary action proposed against a public servant before the Tribunal.

A Division Bench comprising Justice A. Muhamed Mustaque and Justice S. Manu observed, “The delinquent public servant has a right to be tried within a reasonable time. Fair process is central to the dispensation of justice. Delay, if it is inordinate and no plausible reasons have been assigned for such delay, and there is no other public interest involved, it may also lead to the conclusion of waiver of proceedings against such delinquent public servant as well.”

The Bench also said that if the delay cannot be attributed to the delinquent public servant, and the allegations per se do not constitute any misconduct and require the application of evidence and fact-finding, the Court will have to hold that such delay would amount to an abuse of process.

Government Pleader Antony Mukkath represented the petitioners while Advocate Saijo Hassan represented the respondent.

Facts of the Case -

The applicant, Kishore Kumar’s name was included in the select list of officers for conferment to the Indian Police Service (IPS) against 22 vacancies in the Kerala Cadre for the years 2019 and 2020. His name was included subject to clearance of disciplinary proceedings. In the third round of litigation, the Tribunal categorically found that there was absolutely no bona fides to initiate proceedings against him. However, it directed the Government to take a fresh decision in the light of the earlier direction of the Tribunal. The State as well as the applicant were before the High Court challenging the said order of the Tribunal.

Kishore Kumar had investigated a crime on the assumption that the dead body referred to was that of one Suroor who was reportedly missing. As an investigation officer, he arrested four friends of him, however, later it was found in the scientific examination that the dead body was not of him. He was served with a memo of charges alleging a serious lapse on his part in investigating the crime which occurred in 2001. He submitted a representation explaining how he conducted the investigation and requested to drop further proceedings. But the Government rejected the same holding that he committed gross dereliction of duty by arresting innocent persons.

The High Court in the above context of the case noted, “If the delay has significantly prejudiced the delinquent public servant, it can be safely concluded that there cannot be any fair process of enquiry. Undue delay in initiating disciplinary action would also sometimes amount to abuse of process. This will have to be gathered from the nature of allegations set out in the memo of charges.”

The Court further took note of the fact that the investigation conducted by Kishore Kumar was in the year 2008-2010 and no complaint was raised by the persons who were arrested by him. It noted that the charge memo was issued only in the year 2022.

“No mala fides or malice is alleged. If there was an error of judgment on the part of Kishore Kumar as an investigation officer, that ought to have been corrected then and there. … There was no explanation regarding a delay of more than a decade. No guarantee is offered that fair inquiry will be conducted. If there is no assurance of fair inquiry in a delayed initiation of disciplinary inquiry, then such a proceeding will have to be declared as an abuse of process”, it added.

The Court also observed that if the arrest of such persons is based on an appreciation of circumstances that itself cannot lead to disciplinary action even though appreciation of circumstances was erroneous.

“The purpose of disciplinary actions is threefold, namely, (i) to mend the conduct of a public servant, (ii) as a deterrent measure to maintain public esteem of the public service and (iii) to recover any loss. None of these factors would exist in an enquiry which is initiated after a lapse of one decade. As rightly noted by the Tribunal, some fumes of smoke on motive exist for initiating disciplinary action. Anyway, the delay is fatal in the matter. No fair process can be ensured after a decade”, it enunciated.

The Court concluded by saying that, where the integrity of the officer was not doubtful, the disciplinary enquiry is nothing but a farce to create a smoke screen around his selection for IPS.

Accordingly, the High Court allowed the original petition of Kishore Kumar, dismissed that of the State, set aside the charge memo, and quashed the entire disciplinary action against him.

Cause Title- Additional Chief Secretary & Anr. v. Kishore Kumar J. (Neutral Citation: 2024:KER:44087)

Appearance:

Petitioners: Government Pleader Antony Mukkath

Respondent: Advocates Saijo Hassan, Devi. R. Sens, Saritha K., Abraham J. Kaniyampady, Sangeeth Mohan, Phillip Varghese Thomas, V.P. Rejitha, Nitin S., Dheeraj Baby, and Meera J. Menon.

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