IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 OP.No. 5718 of 2000(E) ---------------------- PETITIONER(S): --------------- I.K. RAMAKRISHNAN, HC 1983, CRIME BRANCH C.I.D., KANNUR. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF POLICE (HEADQUARTERS), KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY INSPECTOR GENERAL OF POLICE, KANNUR RANGE, KANNUR. 4. THE SUPERINTENDENT OF POLICE, KANNUR. GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 5718/2000 ---------------------------------------------------------------- EXT.P1 MEMO OF CHARGES DST. 28-2-1984. EXT.P2 ORDER DT. 1-8-1984. EXT.P3 JUDGMENT IN CRL. APPEAL NO. 95/84. EXT.P4 ORDER DT. 1-9-1986. EXT.P5 ORDER DST. 1-8-1985. EXT.P6 PUNISHMENT ROLL MINUTES. EXT.P7 SHOW CAUSE NOTICE DT. 22-12-1986. EXT.P8 ORDER DT. 27-2-1987. EXT.P9 APPEAL FILED BY PETITIONER. EXT.P10 SUPPLEMENTARY APPEAL DT. 14-8-1987. EXT.P11 ORDER DT. 17-8-1987. EXT.P12 ORDER DT. 12-8-1989. EXT.P13 REVIEW PETITION DT. 25-4-1990. EXT.P14 GOVT. ORDER DT. 5-8-1998. EXT.P15 ORDER DT. 13-3-1989. EXT.P16 PETITION DT. 26-10-1998. EXT.P17 LETTER DT. 16-2-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 5718 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th March, 2009. J U D G M E N T While the petitioner was working as a Police Constable in the Kuthuparamba Police Station, he was suspended from service on 4-1- 1983 and was served with Ext. P1 memo of charges dated 28-2-1984. While disciplinary proceedings were thus pending, in respect of the same set of facts, the Additional Judicial First Class Magistrate-II, Tellicherry, convicted the petitioner. On the basis of that conviction, by Ext. P2 order, the petitioner was dismissed from service from 7-1- 1983. Subsequently, by Ext. P3 judgment dated 19-6-1985, the petitioner was acquitted of the charges. In a suo motu revision, the High Court also concurred with the Session's Court by Ext. P4 judgment. Thereafter, by Ext. P5, the petitioner was reinstated in service. However, the disciplinary proceedings initiated by Ext. P1 charge memo was continued, which resulted in Ext. P6 P.R. Minutes finding the petitioner guilty of the charge of misconduct alleged against him. The allegation against the petitioner was that he tried to molest the wife of a fellow policeman at the house of the fellow policeman at 11.30 p.m. By Ext. P7, he was given a show cause notice for imposition of punishment of removal from service. By Ext. P8 order, punishment of reduction by 5 stages in the scale of pay with cumulative effect was imposed on the petitioner. The petitioner's appeal was rejected by Ext. P11 order. By Ext. P12, the petitioner's revision was also rejected. His review petition met with the same fate by Ext. P14 order. By Ext. P15, the suspension period was regularised as duty only for the purpose of pension, limiting the pay and allowances for the period to the subsistence allowance already paid. Petitioner's further petition before the Chief Minister also was rejected by Ext. P17. The petitioner is challenging Exts. P8, P11, P12, P14, P15 and P17 in this original petition. O.P.. No. 5718/2000. -: 2 :- 2. The petitioner's contention is that at the relevant time, a Rule, namely, Rule 10(b) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, was in force, which was deleted on 10-4-1985, which stipulated that once a criminal court has arrived at a definite decision on the same set of facts, 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. Therefore, at the time when Ext. P1 memo of charges were issued on 28-2-1984, the said Rule was in force and therefore, no further proceedings could have been taken against the petitioner on the same set of facts on which the petitioner had been acquitted by the Session's Court. He also relies on the Division Bench decision of this Court in D.I.G. of Police v. Sankaran, 1982 KLT 608, which is to the effect that although ordinarily an acquittal by a criminal court is no bar for continuing disciplinary proceedings; when the rule making authority has chosen to incorporate a rule creating an express bar in continuing such disciplinary proceedings when criminal court acquits the employee on the same set of facts, the disciplinary proceedings cannot be continued. 3. The learned Government Pleader opposes the original petition with the support of the counter affidavit filed by the 1st respondent. The learned Government Pleader points out that, that Rule is not applicable to the petitioner's case since the petitioner was acquitted by the Session's Court only by Ext. P3 dated 19-6-1985, i.e. after the deletion of the Rule from the statute book on 10-4-1985. 4. I have considered the rival contentions in detail. 5. From the Division Bench judgment cited by the petitioner himself, it is abundantly clear that acquittal in a criminal case is not a O.P.. No. 5718/2000. -: 3 :- bar for initiating disciplinary proceedings on the same set of facts, but for the Rule. Therefore, as on the date of the continuation of the disciplinary proceedings if the Rule was not in force, certainly the Rule cannot apply to the disciplinary proceedings against the petitioner. When Ext. P1 memo of charges were issued on 28-2- 1984, the criminal case was pending. Therefore, Ext. P1 memo of charges was rightly issued. It is after the deletion of the Rule on 10-4- 1985 that Ext. P3 judgment of the Session's Court was passed acquitting the petitioner. Therefore, as on the date of Ext. P3, the Rule was not in the statute book and as such, there was no prohibition in continuing the proceedings as done by the respondents. Therefore, going by the decision cited by the petitioner himself, as on 19-6-1985, when the petitioner was acquitted by the Session's Court, there was no statutory bar for continuation of the departmental proceedings . As such, I do not find any merit in the contention of the petitioner on the basis of the said Rule. 6. Learned counsel for the petitioner would contend that even otherwise, the finding of guilt on the petitioner is perverse in so far as the Session's Court and this Court had categorically found that the petitioner was innocent. 7. I have considered the P.R. Minutes, which is Ext. P6. In that, the victim had given evidence to the effect that the petitioner had tried to molest her at her house. Two neighbours had also deposed to the effect that when from the house of the victim, cries of the children were heard, they saw somebody going out from the house, but they did not identify the person as the petitioner. I do not think that the conclusion arrived at by the disciplinary authority is perverse in so far as ordinarily, no woman, much less a married woman, would allege that she was molested, if she was not actually molested. O.P.. No. 5718/2000. -: 4 :- Therefore, there was no reason to disbelieve the evidence of the victim. The petitioner has no case that the victim or her husband who was none other than a fellow policeman of the petitioner, has any enmity towards the petitioner. It is settled law that in disciplinary proceedings, the rules of evidence in a criminal court are not applicable. The rule is that if an ordinary prudent person would come to the conclusion of guilt on the basis of evidence before him, that would be sufficient for finding the delinquent guilty. It is also the law that the fact that another person would, on the same set of facts, come to a different conclusion, is also no ground for interference with the conclusion of the disciplinary authority in exercise of powers under Article 226 of the Constitution of India. 9. Of course, learned counsel for the petitioner would submit that the punishment imposed is excessive. I do not agree. In the above circumstances, I do not find any merit in the original petition. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/