Full Judgment
M.P. Menon, J.
1. While functioning as an Armed Reserve Police Constable the petitioner was charged with an item of serious misconduct. The allegation was that he had enticed a girl away from the Railway Station inAlways taken her to the treasury premises and had either raped her or attempted to rape her. On the basis of the above allegation an enquiry was conducted. The Enquiry officer came to the conclusion that the petitioner was guilty of the charge. After issue of a show cause notice the disciplinary authority dismissed the petitioner from service.
2. The petitioner took up the matter in appeal before the D.I.G. of police. The D.I.G. took the view that in the light of Rule 10(a) of the Kerala Police (Departmental Inquiries, Punishment and Appeal) Rules, 1958 the disciplinary authority should not have passed the final order inflicting the punishment, it should have waited till the criminal court had disposed of the pending case against the petitioner in connection with the alleged offence of raping.
3. The criminal court ultimately acquitted the petitioner of the charge of rape on the ground that it was not established before it that the girl has, not given her consent. And after the conclusion of the criminal proceedings the disciplinary proceedings were continued by examining one more witness and issuing a fresh show cause notice to the petitioner on the basis of the finding recorded thereafter. The petitioner was accordingly dismissed from service. His appeal to the D.I.G. and a review taken before Government under the relevant provisions of the Rules also did not succeed.
4. This writ petition is directed against the original order dismissing the petitioner from service and the appellate and revisional order confirming the same.
5. Counsel for the petitioner submits that in view of Rule 10(b) the disciplinary proceedings initiated earlier could not have been continued against him after the disposal of the criminal case by the Sessions Court. The decision of a Division Bench of this Court in D.I.G. of Police v Sankaran 1968 KLT 608 is relied on for the purpose.
6. 1982 KLT 608 was no doubt a case where this Court had occasion to examine the scope of Rule 10(b). But the scope of Rule 10(a) was not examined Rule 10 reads as follows:
10 Departmental Inquiry regarding matters Before a Court:-- (a) Final orders in a departmental inquiry, which is subjudice, 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.
(ii) If, however, certain facts which fall for departmental action are not relevant to the charge before the Criminal Court and as such, were not placed before the Court, there shall be no objection to departmental action being taken on such facts.
On an examination of the provisions of the above rule I am of the view that Sub-rule (a) applies to cases where disciplinary proceedings are initiated either before the institution of a criminal complaint or during the pendency of criminal proceedings, which Sub-rule (b) is intended to cover cases where the authorities wait for the decision of the criminal court and then examine the question whether notwithstanding acquittal by the criminal court, disciplinary action should be initiated. In other words, Rule 10(b) will apply only to cases where disciplinary action is initiated for the first time after the judgment of the criminal court. Where such proceedings are initiated during the pendency of the criminal trial or even earlier, it seems to me that the provisions of Rule 10(a) should govern the situation. The ban in Rule 10(a) is only against the passing of final orders, as held by the D.I.G. in Ext.P7, during the pendency of proceedings in the criminal court, this provision implies that after the criminal case is disposed of by the court, final orders could be passed in the pending disciplinary proceedings. In the above view, I find no grounds to interfere with the orders impugned in this writ petition. The original petition is accordingly dismissed.
7. Counsel for the petitioner submits that another police constable involved in the same case was subsequently reinstated as per Ext. P17 order. It would be open to the petitioner to request the Government to meet out the same treatment to him, if he is so advised.