High Court Has Ample Powers Under Article 226 To Issue Direction Even If It’s Not Specifically Sought In Plea Before Tribunal: Kerala HC

The Kerala High Court held that the High Court has ample powers under Article 226 of the Constitution to issue direction even if it is not specifically sought in a Petition before the Tribunal.

The Court held thus in a batch of Petitions relating to a case registered under Sections 341, 324, 447, read with 34 of the Indian Penal Code (IPC).

A Division Bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed, “… this court has ample powers under Article 226 of the Constitution to issue the direction as above, even if it is not specifically sought in the petition filed before the Tribunal, if it is found necessary.”

Advocate T.R. Rajesh represented the Petitioner while Senior Government Pleader (SGP) Nisha Bose represented the Respondents.

Brief Facts -

While the Petitioner was working as a Junior Superintendent in the office of the District Police Chief, Kozhikode, a criminal case was registered against him alleging offences punishable under Sections 341, 324, 447, read with 34 of the IPC. The allegation was that, he trespassed into the house of a woman along with three others and attacked her and her children. A disciplinary proceeding was initiated against the Petitioner based on such incident.

The Petitioner’s defence was that it was the consequence of a family dispute between his mother and his sister. The Tribunal found that subjecting a Government servant to disciplinary action for the second time on the very same charges itself is unconstitutional and it is violative of the provisions of the ‘KCS (CC&A) Rules'. Thus, the Tribunal set aside the second charge memo and Order directing a fresh inquiry. Therefore, the State challenged the said Order before the High Court.

The High Court after hearing the arguments from both sides, noted, “It is no more res integra that while this court considers the legality of the orders passed by the Tribunals established under the Administrative Tribunals Act, 1985, it can very well exercise its power under Article 226 of the Constitution of India. The Administrative Tribunals Act, 1985 was promulgated by the Parliament in pursuance of the introduction of Article 323 A to the Constitution, through the 42nd amendment to the Constitution of India.”

The Court added that, as per Article 323A of Constitution and Section 28 of the said 1985 Act, though it was intended to take away the jurisdiction of the High Courts under Article 226, by the seven Judges Bench of the Honourable Supreme Court in the landmark decision in L. Chandra Kumar v. Union of India (AIR 1997 SC 1125), it was held that clause 2(d) of Article 323 A and Section 28 of the said Act, to the extent they exclude the jurisdiction of the High Court under Article 226 and 227 of the Constitution, are unconstitutional.

“Hence the disciplinary authority shall await the final outcome of the criminal proceedings initiated against the respondent, before complying with the directions of the Tribunal. However, this shall not be a hindrance in considering the suitability of the respondent for promotion etc., in accordance with law, as at present the enquiry officer has not recommended any action against him in respect of the said incident, which of course is subject to the final decision to be taken by the disciplinary authority on Annexure A6, after the disposal of the said criminal case”, it said.

The Court concluded that, if a promotion is due, the Respondent shall be considered for it, without waiting for the outcome of the case or the disciplinary action.

Accordingly, the High Court dismissed the Petitions.

Cause Title- M. Shibu v. State of Kerala & Ors. (Neutral Citation: 2024:KER:90689)

Appearance:

Petitioner: Advocates T.R. Rajesh and Nandana Sasi.

Respondents: SGP Nisha Bose

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