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Judgment
T.S. Sivagnanam, J.—Heard Mr. S. Subbiah, learned counsel appearing for the petitioner, and Mr. A.K. Baskara Pandian, learned Special
Government Pleader appearing for the third respondents. The petitioner, a Hawildar in the Tamil Nadu Special Police Battalion, has filed this writ
petition, challenging the order passed by the first respondent in G.O. (2D). No. 189, dated 28.3.2006 and for consequential direction to restore all
benefits, which were withheld by the respondents.
The petitioner, while working as Hawildar in the Tamil Nadu Special Police Battalion at Rajapalayam, was involved in a criminal case in Crime
No. 1492 of 2003, on the file of the Inspector of Police, Thatchanallur Police Station, Tirunelveli for offence under Sections 448, 294(b), 342 and
324 IPC. Along with the petitioner, his father-in-law and brother-in-law were also accused and it was alleged that all three of them attacked one
Mr. Rajeshkumar son of Ganapathi. The petitioner was placed under suspension, by order dated 28.10.2003, and a charge memo was issued to
the petitioner containing the following charges:
(i) I was involved in an offence on 24.10.2003, and as such, I had brought bad name to the Noble Police Department.
(ii) I went on casual leave from 23.10.2003 to 26.10.2003 and without reporting duty on 27.10.2003, after the expiry of the leave period, I
involved myself in the offence on 26.10.2003, and brought bad name to the Department by conducting myself in such manner.
The petitioner submitted his explanation and an enquiry officer was appointed to conduct enquiry into the charges. Five witnesses were
examined by the Department and opportunity was given to the petitioner to cross examine those witnesses, however, the petitioner did not examine
any witness. In the mean time, a final report was filed by the Inspector of Police, Thatchanallur Police Station and the same was taken on file as
C.C. No. 34 of 2004, on the file of the Judicial Magistrate IV, Tirunelveli and the petitioner was arrayed as the third accused in the said criminal
case. The Criminal Court by judgment dated 20.10.2004, acquitted the petitioner and other accused by giving benefit of doubt. During the
pendency of the criminal case, the enquiry officer proceeded with the departmental enquiry, in which the petitioner participated and the enquiry
officer submitted a report on 1.3.2004, holding that the charges were proved. The petitioner submitted his further explanation and after considering
the same, the fifth respondent by order dated 25.3.2004, imposed a punishment of postponement of next increment for three years with cumulative
effect. The petitioner preferred an appeal to the fourth respondent and the appellate authority by order dated 10.1.2005, modified the punishment
into postponement of annual increment for two years without cumulative effect. The review petition filed before the third respondent was disposed
of, by order dated 22.3.2005, modifying the punishment into postponement of increment for one year without cumulative effect. The petitioner filed
a mercy petition to the second respondent, which was rejected by order dated 12.5.2005 and further appeal to the first respondent, was rejected
by G.O. (2D). No. 189, dated 28.3.2006. The said Government order is impugned in this writ petition.
The only ground on which, the petitioner has challenged the impugned order is by stating that the charges levelled against the petitioner depends
upon the findings in the criminal case and the order of punishment was passed even before the commencement of the trial, which is improper and
further, the criminal case has ended in acquittal, the first respondent ought to have entertained the appeal and interfered with an order of
punishment. In support of his contentions, the learned counsel placed reliance on the decision of this Court in A. Thangaian and Another v.
Superintendent of Police and Others, (2012) 5 MLJ 961.
Counter affidavit has been filed on behalf of the respondents contending that the degree of proof, which is required in a departmental
proceedings is only preponderance of probabilities unlike in the criminal proceedings, where an offence has to be proved beyond reasonable
doubt. Further, it is stated that the prosecution witness, who was examined in the departmental enquiry have cogently narrated about the incident
and the enquiry officer recorded a clear finding that the charges have been proved. Further, the petitioner went on casual leave from 23.10.2003 to
26.10.2003 and during such period, he was arrested and the petitioner did not dispute his arrest and being a member of disciplined force, he ought
to have restrained himself from involving in the criminal offence and exercised self control and his involvement in the criminal offence was bona fide
until the time when the prosecution witnesses turned hostile during the trial in the criminal case. It is further submitted that the hostility of the crucial
prosecution witness during the criminal trial does not disprove the involvement of the petitioner in the criminal offence, although the criminal case
ultimately ended in acquittal. Further, prosecution witness No. 2 was examined before the enquiry officer clearly deposed about the petitioner''s
involvement and therefore, it cannot be stated that the enquiry officer did not consider the facts. Further, the disciplinary authority while passing the
order of punishment, has given detailed reasons about the evidence, which was available and order of punishment is just and proper.
The petitioner would rest his case based on the decision of this Court in A. Thangaian and Another v. Superintendent of Police and Others
(supra). In the said case, the petitioner was a Grade II Police Constable and was issued a charge memo for approaching a lady standing in a bus
stop for sexual intercourse and for gross neglect of duty in not informing his superiors about his involvement in the criminal case. The departmental
proceedings as well as the criminal case proceeded simultaneously and the enquiry officer held that the charges were proved. In the criminal case,
the petitioner therein was honourably acquitted. Therefore, this Court held that when a witness examined in the criminal Court is not believed by
the Judicial Magistrate resulting in honourable acquittal, cannot be relied upon to hold the petitioner guilty, and in such circumstances, this Court
was inclined to interfere with the punishment.
The facts of the present case has been set out in the preceding paragraphs. Firstly, it has to be noted that though the petitioner in the writ petition
has stated that the departmental proceedings should have been deferred till the conclusion of the criminal trial, no record has been placed before
this Court to show that such request was made by the petitioner and if the same was rejected as to what further steps were taken by the petitioner
to seek for stay of the departmental proceedings till the conclusion of the criminal trial. That apart, the petitioner appears to have participated in the
departmental enquiry without any demur and he himself admitted that he cross examined the prosecution witnesses. Therefore, the department
cannot be held to have committed any error in proceeding with the departmental proceedings, pending criminal trial.
It is a settled legal position that there is no absolute bar for conducting simultaneous proceedings and unless the petitioner satisfies the test, which
have been laid down by the Hon''ble Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, . Therefore, the
petitioner cannot raise any grievance in that regard.
I have perused the findings rendered by the enquiry officer in which the de facto complainant in the criminal case was examined as the first
witness. Apart from that the Sub-Inspector of Police, who was examined as P.W. 11 in the criminal case was examined in the departmental
proceedings. The departmental proceedings were concluded and thereafter, the order of punishment was passed, much prior to the
commencement of the trial in the criminal case. Therefore, on the date when the order of punishment was passed, the petitioner was not absolved
of his criminal liability. Further, it has to be noted that the petitioner was not honourably acquitted, but he was acquitted on benefit of doubt, since
the P.W. 1 to P.W. 7 turned hostile.
The Hon''ble Division Bench of this Court in The Deputy Superintendent of Police, Sriperumbudur Sub-Division I/C Chengalpattu Sub-
Division Vs. W.D. Sekaran and The Registrar, Tamil Nadu Administrative Tribunal, has held that it is not axiomatic that in all cases where the
criminal proceedings based on the very same set of facts ended in acquittal, the departmental action should not be proceeded with. By relying upon
an earlier decision of the Hon''ble Division Bench in The State of Tamil Nadu Vs. H.A. Munaff, Anna Nagar West, Chennai and The Registrar,
Tamil Nadu Administrative Tribunal, Chennai, , it was held that if the acquittal in the criminal proceeding is not a honourable one, it is always open
to proceed with the departmental proceedings.
In S. Vadivelu Vs. The Secretary to Government and The Superintendent of Police, this Court after taking note of various decisions of the
Hon''ble Supreme Court held that the departmental and criminal proceedings are entirely different in nature and they operate in different fields and
they have different objectives. The degree of proof, which is necessary to record an order of conviction is different from the degree of proof to
record the commission of a delinquency. It was therefore held that merely because a criminal case ended in acquittal, it would not automatically put
an end to the departmental enquiry.
In yet another decision of this Court in A. Sampathkumar Vs. Board Members, The Chairman, Tamil Nadu Electricity Board and Regional
Chief Engineer (Distribution), Vellore Region , the question as regards the effect of acquittal by a Criminal Court on departmental proceedings was
considered and elaborate reference has been made to the various decisions of the Hon''ble Supreme Court on the said point and it would be
beneficial to quote the relevant portion of the said judgment:
The third contention that the criminal Court having acquitted the petitioner in respect of very same allegations for which the respondent initiated
disciplinary proceedings and punished the petitioner also cannot be sustained, since the order passed by this Court in C.A. No. 367 of 1990 dated
13.7.1998 it is stated that P.W.10 Investigating Officer has failed in his duty in not marking the document-FIR and there was procedural
irregularity and therefore the conviction and sentence imposed against the petitioner was set aside. The effect of acquittal in the criminal case on
technical reasons how far can be relied upon while considering the merits of the disciplinary proceedings has already been considered by the
Supreme Court and by this Court in very many decisions.
(a) The scope of interference in the domestic enquiry findings and the effect of acquittal in the criminal case was considered by the Honourable
Supreme Court in the decision Lalit Popli Vs. Canara Bank and Others, wherein in paragraphs 16 to 19 it is held thus:
It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and
different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against
him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence
should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different.
(See State of Rajasthan v. B.K. Meena) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of ""proof
beyond doubt"" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether
or not the delinquent has committed misconduct.
While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is
circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of
natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the Court is of decision-making
process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot reappreciate the
evidence and substitute its own finding.
As observed in R.S. Sami v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the
circumscribed limits.
(b) In B.C. Chaturvedi Vs. Union of India and others, , it is held as follows:
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof.
(c) In Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, the Supreme Court held as follows:
As far as acquittal of the appellant by a criminal Court is concerned, in our opinion, the said order does not preclude the Corporation from
taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an
employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are
entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate
punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance
with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally
inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is
necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to
appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the
prosecution is able to prove the guilt of the accused ""beyond reasonable doubt"", he cannot be convicted by a Court of law. In a departmental
enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ""preponderance of probability"".
Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of
the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal Court, the impugned
order dismissing him from service deserves to be quashed and set aside.
(d) The Division Bench of this Court in the decision Management of Thiruvalluvar Transport Corporation Vs. S. Anthonysamy and Another, . In
paragraphs 8 to 13 it is held as follows:
It is well settled that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is
found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental/domestic enquiry vide Thenmozhi v. The
Chairman & Managing Director, Neyveli Lignite Corporation in W.A. Nos. 202 and 203 of 2005 dated 8.2.2005.
In the aforesaid Division Bench decision reliance had been placed on the Supreme Court decisions in Allahabad District Co-operative Bank
Ltd., Allahabad Vs. Vidhya Varidh Mishra, and Secretary, Ministry of Home Affairs and Another Vs. Tahir Ali Khan Tyagi, .
In paragraph 12 of the decision in Allahabad District Co-Op. Bank Ltd. v. Vidhya Varidh Mishra (supra) the Supreme Court observed:
Mr. Rao submitted that the respondent had been exonerated by the criminal Court. He submitted that the termination was only on the basis of his
conviction. He submitted that as his conviction is set aside, the Courts below were right in reinstating the respondent. We are unable to accede to
this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that
arrived at by a criminal Court, may be arrived at. The strict burden of proof required to establish guilt in a criminal Court is not required in
disciplinary proceeding. The respondent has not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based
on findings of the Disciplinary Committee, the fact that the appellate Court exonerated the respondent was no consequence.
Similarly, in Secretary, Ministry of Homes Affairs and Another v. Tahir Ali Khan Tyagi (supra) the Supreme Court observed (vide paragraph -
6):
Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a
criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is
required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt,
whereas the latter being one of preponderance of probability.
In view of the above, we are clearly of the opinion that the Labour Court proceeded on a wrong legal basis and wrongly ordered reinstatement
of the workman concerned after finding that he was guilty of negligence.
In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, the Supreme Court observed that ""once a domestic Tribunal based on
evidence comes to a particular conclusion normally it is not open to the appellate Tribunal or Courts to substitute their subjective opinion in the
place of the one arrived at by the domestic Tribunal.
(emphasis supplied)
Thus, the contention raised by the learned counsel for the petitioner on this score is also unsustainable.
In a recent decision of the Hon''ble Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, dated 30.11.2012, the question
arose that when the departmental enquiry was completed resulting in dismissal of the delinquent from service, what would be effect of a finding
recorded by the Criminal Court acquitting the delinquent subsequently. While answering the said question, the Hon''ble Supreme Court after
referring to the decisions in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another (supra); Southern Railway Officers Assn.
and Another Vs. Union of India (UOI) and Others, ; The Managing Director State Bank of Hyderabad and Another Vs. P. Kata Rao, and The
Divisional Controller, KSRTC Vs. M.G. Vittal Rao, , held as follows:
We are of the view that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the
Department. The respondent, it may be noted, is a member of a disciplined force and non examination of two key witnesses before the criminal
Court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the Prosecution. Considering the facts and
circumstances of the case, the possibility of winning order P.Ws. 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the
Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. It was these two Head Constables who
took the respondent from the scene of occurrence along with P.Ws. 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their
presence that the complaint was registered. In fact, the criminal Court has also opined that the signature of P.W. 1 (husband - complainant) is
found in Exhibit P-1 - Complaint. Further, the Doctor P.W. 8 has also clearly stated before the Enquiry Officer that the respondent was under the
influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent
was not honourably acquitted by the criminal Court, but only due to the fact that P.W. 1 and P.W. 2 turned hostile and other prosecution
witnesses were not examined.
Further the Hon''ble Supreme Court in the said decision also examined the meaning of the expression ''honourable acquittal'' and its effect on
the disciplinary proceedings and held as follows:
The meaning of the expression ''honourable acquittal'' came up for consideration before this Court in AIR 1994 552 (SC) . In that case, this
Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal Court on the disciplinary proceedings. In that
context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be
honourable. The expressions ''honourable acquittal'', ''acquitted of blame'', ''fully exonerated'' are unknown to the Code of Criminal Procedure or
the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ''honourably
acquitted''. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove
the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
The aforementioned decision of the Hon''ble Supreme Court also pertained to a Police Personnel working in the Armed Reserve and the case
arose out of a proceeding initiated under the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1958, as in the case on hand.
Thus, in view of the above mentioned decisions, the effect of the acquittal on benefit of doubt, which has been granted to the petitioner, much
after the punishment was imposed on him, can have no effect on the order of punishment and on that ground, the petitioner cannot seek for being
exonerated from the punishment imposed after conduct of a full fledged departmental enquiry, in which the petitioner had participated. Further
more, the punishment is also a minor penalty though the charges were proved, the reviewing authority took a lenient view of the matter and
imposed a minor penalty. For all the above reasons, the petitioner has not made out any ground to interfere with the impugned order. Accordingly,
the writ petition being devoid of merits, is dismissed. No costs. Consequently, connected miscellaneous petition is closed.