IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 29216 of 2008(C) -------------------------- PETITIONER(S): --------------- IVAN RATHINAM, S/O.RATHINAM PILLAI, ARASAR KADAVIL HOUSE, VADAKKAL P.O. ALAPPUZHA. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN RESPONDENT(S): --------------- 1. ASHA LAWRENCE, D/O.M.M.LAWRENCE, 702, 'GARDEN GATES APARTMENTS', GANDHI NAGAR, COCHIN - 20. 2. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF HOME, TRIVANDRUM. 3. DIRECTOR GENERAL OF POLICE, TRIVANDRUM. 4. SUPERINTENDENT OF POLICE, CB CID, ERNAKULAM. ADV. SRI.T.M.MOHAMED YOUSEFF (SR.) FOR R1 SRI.P.K.RAVISANKAR FOR R1 SHRI.P.NANDAKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008, ALONG WITH RP NO. 994 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.29216/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE MEMO OF CHARGES DATED 26/08/2008 TOGETHER WITH THE ANNEXURES SERVED on the PETITIONER. P2 : COPY OF the COMPLAINT DATED 26/02/2007 FILED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. P3 : COPY OF THE REPORT SUBMITTED BY THE DIG OF POLICE, ERNAKULAM RANGE DATED 27/06/2007. P4 : COPY OF THE COMPLAINT DATED 18/07/2007 ISSUED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. P5 : COPY OF THE COMPLAINT DATED 18/07/2007 ISSUED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT. P6 : COPY OF THE REPORT NO.G3(A)/53984/07 ISSUED BY THE SUPERINTENDENT OF POLICE, ALAPPUZHA. P7 : COPY OF COMPLAINT IN C.C. NO.677/08, JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA. P8 : COPY OF THE ORDER DATED 26/08/2007 IN CRMA NO.4560/2008 IN CRMA NO.3259/2008 OF HIGH COURT OF KERALA. P9 : COPY OF THE BIRTH CERTIFICATE ISSUED by the CORPORATION OF COCHIN DATED 06/11/2007. P10 : COPY OF THE JUDGMENT DATED 01/09/2008 IN WP(C) NO.21868/2008. //TRUE COPY// PA TO JUDGE. jg P.N.RAVINDRAN, J. ------------------------- W.P.(C.) No.29216 of 2008 & R.P.No.994 of 2008 in WP(C) No.21868 of 2008 --------------------------------- Dated, this the 12th day of November, 2008 J U D G M E N T Common questions arise in W.P.(C) No.29216 of 2008, and in Review Petition No.994 of 2008 in W.P.(C) No.21868 of 2008. They were therefore heard together and are being disposed of by this common judgment. Unless otherwise mentioned, the parties are referred to as they are arrayed in Review Petition No.994 of 2008 in W.P.(C) No.21868 of 2008. The brief facts of the case are as follows :- 2. The first respondent in the Review Petition and in W.P.(C) No.29216 of 2008 moved the Director General of Police and thereafter the District Police Complaints Authority at Alappuzha, complaining that the review petitioner, the fourth respondent in the W.P.(C) No.21868 of 2008, with whom she had an adulterous relationship, man-handled their child and also threatened to cause physical injury and harm to her. The District Police Complaints Authority, Alappuzha after enquiry, issued Ext.P4 order dated 03/05/2008 recommending initiation of departmental proceedings against the review petitioner on the basis of the allegation that he had sexual intercourse with the writ petitioner during the subsistence of her marriage with Sri.Raju Kurian. The Director General of Police was also enquiring into the matter. The Government, with a view to hold an WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -2- enquiry into the complaint leveled against the review petitioner by the first respondent ordered an oral enquiry into the allegations and by G.O. (Rt.)No.1201/08/Home dated 15/04/2008 appointed the Superintendent of Police, SB CID, Ernakulam as the Enquiry Officer. Thereafter, by order dated 02/08/2008, the Government approved the draft memo of charges. After the Enquiry Officer was appointed, the Government informed the first respondent in Ext.P5 letter dated 22/05/2008 that an oral enquiry has been ordered against the review petitioner and an Enquiry Officer has also been appointed. The first respondent thereafter filed W.P.(C) No. 21868 of 2008 in this Court praying for a writ in the nature of mandamus commanding the official respondents to complete the disciplinary proceedings initiated against the review petitioner, expeditiously and within a time limit to be fixed by this Court. 3. In the said writ petition, a statement dated 29/08/2008 was filed on behalf of the Enquiry Officer to the effect that the memo of charges was received by him on 16/08/2008 and that the proceedings will be completed, after the memo of charges is served on the review petitioner, within a period of three months therefrom. In the light of the said statement, by the judgment delivered on 01/09/2008, I disposed of W.P.(C) No.21868 of 2008 without notice to the review petitioner, with a direction to the official respondents therein to serve a copy of the memo of charges on the review petitioner within two weeks from 01/09/2008 WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -3- and to complete the departmental proceedings within a period of three months from the date on which the memo of charges is thus served on the review petitioner. 4. In the review petition, the review petitioner seeks a review of the said judgment on the short ground that the first respondent has filed C.C.No.677 of 2008 in the Court of the Judicial Magistrate of First Class, Ambalappuzha in respect of the subject matter of the disciplinary action, that she has also filed O.S.No.425 of 2007 in the Court of the Munsiff of Ernakulam for a declaration that he is the father of Milan, the child born to her and that if the disciplinary action is proceeded with, while the criminal case and the civil suit are pending, he will be seriously prejudiced. The review petitioner has also filed W.P.(C) No.29216 of 2008, wherein he has prayed for quashing the memo of charges [Ext.P1 in W.P.(C) No.29216 of 2008], and in the alternative for a direction to the official respondents to keep the disciplinary action in abeyance till the criminal case and the civil suit filed by the first respondent against him are disposed of. 5. I have heard Sri.Dinesh R.Shenoi, the learned counsel appearing for the review petitioner, Sri.T.M.Mohammed Youseff, the learned Senior Advocate appearing for the first respondent and Sri.P.Nandakumar, the learned Government Pleader appearing for respondents 2 to 4. From the memo of charges issued to the review WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -4- petitioner, it is evident that he is being proceeded against under the provisions of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules 1958 for conduct unbecoming of a Police Officer. Though the allegations of misconduct on which the memo of charges is founded, refer to the allegation that the review petitioner had man-handled the first respondent's child [according to the first respondent, the child was born to her in the adulterous relationship with the review petitioner] the subsistence of the charge leveled against the review petitioner is that he had an adulterous relationship with the first respondent, thereby bringing disrepute to the Police force. In other words, the petitioner is being proceeded against for lack of discipline and improper conduct, which according to the Department amounts to misconduct in law. On the other hand, in Annexure R4(e), the complaint in C.C.No.677 of 2008 on the file of the Court of the Judicial Magistrate of the First Class, Ambalappuzha, the allegation against the petitioner is that he had brutally man-handled the first respondent's child, threatened to kill her and also used abusive language against her. The offences alleged against the review petitioner in the said complaint are those punishable under Sections 323, 506(1) & 294 of the IPC. In the said complaint also, reference is made to the adulterous relationship between the review petitioner and the first respondent. 6. Going by the pleadings and the materials on record, I am WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -5- satisfied that the disciplinary action initiated against the review petitioner and the criminal complaint filed by the first respondent, are in respect of separate incidents. While the departmental action is founded on the petitioner’s misconduct, he is being prosecuted by the first respondent for the offences punishable under Sections 323, 506(1) and 294 IPC. It is true that in the criminal complaint and in the memo of charges reference is made to the review petitioner's adulterous relationship with the first respondent. But apart from that, there is nothing common between the departmental action and the criminal complaint filed by the first respondent. In other words, going by the materials on record, it cannot be said that the departmental action initiated against the review petitioner is founded on the offences alleged to have been committed by him under Sections 323 and 506(1) IPC. The departmental action initiated against the review petitioner is for having adulterous relationship with the first respondent and not for allegedly threatening the child born in that relationship or for intimidating the first respondent. Therefore, the review petitioner cannot seek postponement of the departmental action till the criminal case filed against him by the first respondent is disposed of. 7. Yet another ground put forward by the review petitioner is that the first respondent has filed a civil suit against him seeking a declaration that he is the father of the boy, Milan, now aged 8 years. In WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -6- the suit involving the question of paternity, the evidence to be adduced is different. Perhaps, a DNA test may also have to be conducted. It will have to be proved by reliable evidence that the review petitioner is the father of the child. But, on the other hand, in the disciplinary enquiry, the paternity of the child is not at all an issue. All that is relevant in the departmental enquiry, where the strict rules of evidence do not apply, is whether the review petitioner had adulterous relationship with the first respondent and whether it amounts to misconduct. In these circumstances, I am not persuaded to hold that the review petitioner will be seriously prejudiced, if the departmental action initiated against him is proceeded with, while the civil suit is pending. The review petition fails and is accordingly dismissed. 8. The review petitioner has filed W.P.(C) No.29216 of 2008 challenging the memo of charges issued to him, marked as Ext.P1 therein and seeking a direction to the official respondents to keep the departmental proceedings in abeyance till the criminal case and the civil suit filed against him by the first respondent are disposed of. In W.P.(C) No.29216 of 2008 also, the same grounds as in the review petition are raised. In the view that I have taken, no relief can be granted in W.P.(C) No.29216 of 2008 also. The said Writ Petition also fails and is accordingly dismissed. 9. By the judgment sought to be reviewed, I had directed that WP(C) No.29216/08 & R.P.No.994/08 in WP(C) No.21868/2008 -7- the disciplinary enquiry shall be completed within three months from the date on which the memo of charges is served on the review petitioner. By an interim order passed in the Review Petition on 29/09/2008, I had stayed further proceedings in the disciplinary proceedings. As the memo of charges was served on the review petitioner on 02/09/2006, the period of three months will come to an end on 02/12/2008. Having regard to the fact that this Court had stayed the disciplinary proceedings by an interim order passed on 29/09/2008 on the Review Petition and the order of stay was in force till today, namely for a period of 44 days, the time granted for completion of the enquiry will stand extended by a further period of two months from 02/12/2008. It is clarified that I have not pronounced upon the merits of the defence put forward by the review petitioner or the contentions raised by the first respondent. It will be open to the disciplinary authority, the civil court and the criminal court, dealing with the respective issues before them, to arrive at a decision on the merits, based on the materials on record. (P.N.RAVINDRAN, JUDGE) jg