SANKARAN Vs. D I G OF POLICE ERNAKULAM

JUDGEMENT

(1.) 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. P2, P3, P4, P9 and P11.

(2.) IT is not disputed that the petitioners, who were prosecuted for offences punishable under S. 302 and 342 IPC. 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 Ex. P1 judgment dated 18-2-1977 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 S. 304 Part II and 342, ipc. 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 14-3-1978 and 21-4-1978 , making it clear that such reinstatement was without prejudice to the disciplinary proceedings against them. In the meanwhile the second respondent as per Ex P2 order No. HI-49688/77-5/b dated 22-3-1978 had authorised the third respondent, the Deputy superintendent of Police, Trichur, to conduct a detailed enquiry under R. 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 PR 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. P3 and P4 charge memos and statements of allegations appended thereto were issued to the respective petitioners. The charge was that, while they were police officers, on 2-5-1975 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 3-5-1975 while undergoing treatment in the District Hospital, trichur. The petitioners had submitted Ext. P5 and P6 explanations denying the allegations contained in Ext. P3 and P4, and stating that the proceedings initiated were illegal, irregular, and bad for total want of jurisdiction. They had also submitted Exs. P7 and P8 representations to the second respondent to drop the proceedings against them alleging various reasons. The request made in ext. P7 representation made by the first petitioner was turned down by the second respondent by fix. P9 order dated 11-4-197 9. Though aggrieved by Ex. P9 order he filed Ex. P10 representation dated 12-5-197 9 to the first respondent, his request was not acceded to in the reply Ex. P11. IT is in the background mentioned above that this writ petition is filed.

(3.) TO attract R. 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 R. 10 (b) (ii ). Having considered Exhibits P3 and P4 charge memos, and the statement of allegations annexed thereto, and the substance of the charge in the criminal prosecution discernible from Ext P1 judgment, I am fully satisfied that no case for invoking R. 10 (b) (ii) of the rules has been made out to sustain the departmental action initiated against the petitioners.