Sankaran and Another vs D.I.G. of Police and Others

Bhaskaran, J.—The Petitioners who are brothers are officers in the Police Department, the first Petitioner being a Head Constable and the second Petitioner being a Police Constable. In this writ petition the prayer is for quashing Exts. P-2, P-3, P-4, P-9 and P-11.

It is not disputed that the Petitioners who were prosecuted, for offences punishable under sections 302 and 342 I.P.C. on the charges that they had wrongfully restrained, and intentionally caused the death of, one Sri Govindan Ezhuthassan, were ultimately acquitted by this Court as per Ext. P-1 judgment, dated 18th February 1977 in Criminal Appeal No. 54 of 1976, holding that the prosecution did not succeed in proving the case beyond reasonable doubt, though the trial court had convicted and sentenced them under Sections 304, Part II and 342 I.P.C. The Petitioners who remained under suspension during the pendency of the criminal proceedings against them, were reinstated in service as per the order of the 2nd Respondent, District Superintendent of Police, Trichur, dated 14th March 1978 and 21st April 1978, making it clear that such reinstatement was without prejudice to the disciplinary proceedings against them. In the meanwhile the second Respondent as per Ext. P-2 order No. HI-49688/77-5/R, dated 22nd March 1978 had authorised the third Respondent, the Deputy Superintendent of Police, Trichur, to conduct a detailed enquiry under Rule 6 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 (for short the Rules) "into the whole incident in respect of the part played" by the Petitioners "for the murder of Govindan Ezhuthassan of Cheroor and submit P.R. Minutes" to him in two months. The third Respondent was, therein, also directed to submit draft charge for the approval of the 2nd Respondent. Thereafter Exts. P-3 and P-4 charge memos and statements of allegations appended thereto were issued to the respective Petitioners. The charge was that, while they were police officers, on 2nd May 1975 at 11.30 a.m. they had wrongfully restrained one Govindan and had inflicted bodily injury on him which ultimately resulted in his death on 3rd May 1975 while undergoing treatment in the District Hospital, Trichur. The Petitioners had submitted Exts. P-5 and P-6 explanations denying the allegations contained in Exts. P-3 and P-4, and stating that the proceedings initiated were illegal, irregular, and bad for total want of jurisdiction. They had also submitted Exts. P-7 and P-8 representations to the second Respondent to drop the proceedings against them a alleging various reasons. The request made in Ext. P-7 representation made by the first Petitioner was turned down by the second Respondent by Ext. P-9 order dated 11th April 1979. Though aggrieved by Ext. P-9 order he filed Ext. P-10 representation dated 12th May 1979 to the first Respondent, his request was not acceded to in the reply Ext. P-11. It is in the background mentioned above that this writ petition is filed.

The counsel for the Petitioners submitted that in view of the provisions contained in Rule 10(b)(i) of the Rules the Petitioners cannot be proceeded again on the basis of the same set of facts which formed the basis of the criminal prosecution against them. Rule 10 of the Rules reads as follows:

Departmental inquiry regarding matters before a Court:

(a) Final orders in a departmental inquiry, which is sub-judice, shall be issued only after the matter has been disposed of in Court.

(b) If the question of departmental action arises against the conduct of an Officer, who has already been tried in a Criminal Court on the facts which form the basis of the charge against him the following rules shall be observed:

(i) If on a full consideration of the same facts, a criminal court has arrived at a definite decision, which is neither reversed nor modified in appeal, the Department shall not take any further proceedings on the basis that the proceedings in the criminal court were misconceived or that the judgment was erroneous

The submission made by the counsel for the Petitioners is that this is a case where on the very same set of facts which formed the basis of the prosecution, culminating in Ext. P-1 judgment of acquittal passed by this Court, departmental action has been initiated in contravention of the provisions contained in Rule 10(b)(i) of the Rules mentioned above.

The Government Pleader appearing for the Respondents, however, sought to support the validity of the departmental action initiated against the Petitioners, placing reliance on Clause (ii) of Rule 10(b) of the Rules which reads as follows:

(ii) If however, certain facts which call for departmental action are not relevant to the charge before the Criminal Co. article and as such were not placed before the court, there shall be no objection to departmental action being taken on such facts.

To attract Rule 10(b)(ii) of the Rules, the departmental action initiated should be founded on facts which were not relevant for the charge for which the Government servant was prosecuted. To ascertain as to whether this condition is satisfied a comparison of the charges framed against the accused in the criminal proceeding with the memorandum of charges and the statements of allegations of misconduct or misbehaviour would be absolutely necessary; they have to be considered as a whole to get at the pith and substance of the respective actions, and unless they are found to be based on different sets of facts, and the facts on which departmental action is based are found to have not been relevant for the criminal prosecution which ended in favour of the Government servant, there is no scope for the disciplinary authority to invoke Rule 10(b)(ii). Having considered Exhibits P-3 and P-4 charge memos and the statement of allegations annexed thereto, and the substance of the charge in the criminal prosecution discernible from Ext. P-1 judgment, I am fully satisfied that no case for invoking Rule 10(6)(ii) of the Rules has been made but to sustain the departmental action initiated against the Petitioners.

I do not therefore think that the Respondents can invoke successfully the provisions contained in Clause (ii) of Rule 10(b) of the Rules for initiating further departmental action against the Petitioners.

The Government Pleader wanted time to produce the files which have been taken away from him for departmental action by the concerned officers. I do not think that the production of the files would improve matters for the Respondents, inasmuch as they cannot go beyond or behind the facts stated in Exts. P-3 and P-4, which were absolutely relevant for the purpose of the criminal prosecution launched against the Petitioners.

For the foregoing reasons I allow this writ petition quashing Exts. P-2 to P-4 and other steps taken in furtherance there to. There will be no order as to costs.