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Judgment
N. Paul Vasanthakumar, J.—Prayer in the writ petition is the quash the proceedings of the first respondent dated 24.6.2005 and direct the
respondents to drop all further action in PR No. 44/2005 with all consequential monetary and service benefits.
The brief facts as stated in the affidavit are that the petitioner joined the Police service as direct Sub Inspector of Police in the year 1987 and
was promoted as Inspector of Police in the year 1999. According to the petitioner, he received several rewards for his efficient services and he
was subjected to only three minor punishments. On 24.6.2005, the first respondent issued a charge memo in PR. 44/05 under Rule 3(b) of the
Tamil Nadu Police Subordinate Services ( Discipline and Appeal) Rules, 1955. The allegations in the charge memo was that on 23.1.2005,
petitioner threatened one Kumar @ Rajkumar at his residence at 12.35 to give evidence in his favour in Crime No. 4 of 2 000 before the
competent Court and also threatened his brother Ganesan and the said request having not been obliged, the petitioner scolded them by mentioning
their caste name and therefore a criminal case in crime No. 160 of 2005 was registered on 24.1.2005 at 8.30 a.m. against the petitioner under
Sections 143, 448, 506(1) IPC read with Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989.
The said criminal case was charge sheeted before the Judicial Magistrate Court, Tirunelveli, as C.C.No.10 of 2005 and later committed to the
Sessions Court in S.C.No.56 of 2005.
Petitioner states in the affidavit that a departmental enquiry, though initiated, was not proceeded with till December, 2005. According to the
petitioner, on 16.12.2005, the Sessions Court, Tirunelveli, honourably acquitted the petitioner of the charges in crime No. 160 of 2005 in its
judgment in S.C.No.56 of 2005, with a specific finding that the Complainant Kumar @ Rajkumar gave false and motivated complaint. Petitioner
has now filed this writ petition to quash the charge memo on the ground that he was acquitted in the criminal case, as the allegation in both the
departmental enquiry and the criminal case are one and the same.
At this juncture, it is useful to refer to the charge framed agaisnt the petitioner. The charge against the petitioner is that he threatened one Kumar
@ Rajkumar on 23.10.2005 at 12.30 in the night at his residence and his involvement in Cr.No.160 of 2005 on the file of the Palayamkottai
Police station. No other allegation is made in the charge memo issued by the department. Referring to the charge memo, the learned counsel
appearing for the petitioner argued that the criminal case as well as the departmental proceeding are identical/on same allegation and the petitioner
having been acquitted in the criminal case, there is no purpose in proceeding with the departmental proceeding. The learned counsel cited two
judgments of the Division Bench of this Courts reported in P. Ramasamy Vs. The Government of Tamil Nadu and Others, and The District
Revenue Officer Vs. R. Palanisamy, Assistant, Erode District Revenue Unit and The Registrar, Tamil Nadu Administrative Tribunal, and argued
that in the above cases, the Division Bench set aside the departmental proceedings because of the identity of charge based on the acquittal in the
criminal case.
The learned Government Advocate relied on the folowing contentions made in the counter affidavit.
I Submit that the averments made in para 5 it is true that the criminal case registered against him in Palayamkottai Cr.No.160/05 u/s 143, 448,
506(1) IPC r/s 3(1)(10) SC/ST Prevention of Atrocities Act, 1989 on 24.01.2005 ended in acquittal on 16.12.2005 by Hon''ble Sessions Court,
Tirunelveli in SC.56/05. In para 28 of the judgment the Hon''ble Judge has observed and suspected that the case might have been given falsely by
the complainant Thiru.Kumar @ Rajkumar due to motive.
I submit that with regard to the averments made in para 6 that the power to take disciplinary action is vested with disciplinary authority in
departmental proceeding the rule for finding is ""Balance of Probability"" and not proof beyond reasonable doubt. On the instant date, the petitioner
was on leave. Hence it is his responsibility to prove that he was not involved in the incident. The petitioner has to face the departmental enquiry to
put-forth his defence so as to disprove the charge against him. He is at liberty to file his defence documents and disprove the charge levelled
against him.
I submit that with regard to the averments made in para 7 the Hon'' ble Sessions Judge in para 28 of the judgment has stated and suspected that
the case might have been given falsely due to motive between Rajkumar and the petitioner since there were several cases registered against the
complainant Rajkumar and warrants were also pending against him.
The learned Government Advocate ultimately submitted that it is for the department to decide as to whether to proceed with the enquiry or not and
for that purpose, the petitioner cannot file the writ petition to quash the charge memo.
Heard the learned counsel for the petitioner as well as the learned Government Advocate and I have considered the rival submissions of the
counsels on either side.
A perusal of the charge memo, impugned in this writ petition discloses that the charge framed against the petitioner both in the departmental
proceeding as well as in the criminal case are one and the same. Therefore it has to be taken as both the charges are arising out of the same
incident and same set of facts. The Criminal Court in S.C.No.56 of 2005, after an elaborate discussion of evidence, found that the criminal
complaint was given due to some other motive and there is no evidence to prove that the petitioner went to the house of the complainant and
threatened him by calling his caste name and ultimately acquitted the petitioner from the offences.
A Division Bench of this Court while dealing with a similar question in the case reported in The District Revenue Officer Vs. R. Palanisamy,
Assistant, Erode District Revenue Unit and The Registrar, Tamil Nadu Administrative Tribunal, in paragraphs 4 and 5 held as follows,
The only point for consideration in this writ petition is, whether the Tribunal is justified in issuing direction to the Revenue Administration to
proceed against the applicant in accordance with the decision in Criminal Court ?
The first respondent herein while working as Revenue Inspector, Kanjkoil Firka in Perundurai Taluk of Erode District during the period from
6.8.1981 to 29.9.1982, he was charged that he had misappropriated an amount of Rs. 96,206.41 during the said period. A criminal case was
registered against him in crime No. 589 of 1982 under Sections 420, 409 and 477A read with Section 109 I.P.C., and the same was taken on file
in C.C.No.110 of 1990 of the Judicial Magistrate''s Court, Perundurai. During the pendency of the criminal case, charges were framed under Rule
17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and he was dismissed from service as per District Revenue
Officer''s proceedings dated 6.7.1986. Against this order, he preferred an appeal before the Special Commissioner and Commissioner of Revenue
Administration, Chennai, and the latter remanded back the matter for fresh disposal for rectification of certain procedural irregularities. The first
respondent was placed under suspension again and subsequently fresh charges were framed against him on 10.7.1990 . By orders of the
Administrative Tribunal in O.A.No.5011 of 1993 and in view of the fact that the disposal of the criminal case takes longer time, he was allowed to
join duty. The grievance of the Revenue administration is that because of the dilatory tactics adopted by the first respondent, the departmental
proceedings could not be completed. It is also their claim that even after acquittal by the Criminal Court, they are free to proceed with the
departmental enquiry. Learned Government Advocate basing reliance on Ajit Kumar Nag v. General Manager, Indian Oil Corporation Limited
AIR 2005 SCW 4986, would contend that acquittal by Criminal Court will not preclude the department from holding departmental proceedings.
In the impugned order, it is true that the Tribunal has directed the department to proceed based on the result of the criminal case. In other words,
as per the direction of the Tribunal, if the criminal case ended in acquittal, the department is barred from proceeding further or else they are free to
proceed with the departmental enquiry. It is settled law that acquittal by a Criminal Court would not debar an employer/department from execising
power in accordsance with the rules and regulations in force. The two proceedings, viz., criminal and departmental are entirely different. They
operate in different fields and have different objectives. The object of criminal trial is to inflict appropriate punishment on the offender, whereas the
purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose on him penalty in accordance with 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. Likewise, 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. Whereas, in departmental enquiry penalty can
be imposed on the delinquent officer on a finding recorded on the basis of the preponderance of probability. Acquittal of the accused by a Judicial
Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Revenue administration. The
contention that since he was acquitted by the Criminal Court, the department is completely debarred to proceed with the enquiry cannot be
accepted. However, as observed in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , since the facts and the evidence in both
the proceedings, viz., departmental proceedings and the criminal case were the same, without there being an iota of difference, the distinction which
is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be
applicable. In the case on hand, the facts and the evidence in both the proceedings, viz., departmental and criminal were the same and in view of
acquittal of the criminal case on merits, we are of the view that the Revenue administration is not justified in pursuing the departmental enquiry.
The crux of the issue is when the facts and evidence in the criminal proceeding and departmental proceeding are same, the department will not be
justified in pursuing the departmental proceeding after acquittal in the criminal case. The Division Bench in the above referred decision, followed
various decisions of the Honourable Supreme Court and quashed the charge memo.
In the other decision reported in P. Ramasamy Vs. The Government of Tamil Nadu and Others, also the Division Bench in para 3 held as under,
We have already extracted the three charges levelled against the petitioner. It is also relevant to note that simultaneously a criminal case was also
launched against the petitioner and he was charged for screening of evidence and protecting the accused who was possessing the counterfeit
currency notes giving false information punishable u/s 221, read with Section 489(E), I.P.C., and punishable u/s 221, IPC., for dereliction of duty
by a public servant with intentionally failing to arrest the offender. Before the Sessions Court, prosecution has examined as many as 12 witnesses
and produced several documents in support of the charges. After analysing the evidence in detail, the learned Assistant Sessions Judge has found
that the eviddence let in on the side of the prosecution is not sufficient to connect the accused with the charges and the prosecution case was not
proved beyond all reasonable doubts and concluded that the accused is not guilty of all the charges and acquitted him. As said earlier, the said
order was passed on 2.11.1995. The disciplinary authority, viz., Deputy Inspector General of Police, Vellore Range/fifth respondent herein, has
passed an order on 24.1.2000 awarding punishment of reduction in rank as Sub-Inspector of Police for a period of two years without considering
the decision of the Criminal Court. It is not in dispute that irrespective of the verdict of the criminal Court, either acquittal or conviction,
undoubtedly, the Department can proceed with the departmental enquiry in respect of the charges levelled against the officer. However, if the
criminal Court acquitted the very same person on merits, on ground that the charges framed against him had not been proved, the Department
cannot ignore the said order of acquittal. It cannot be expected that all cases in criminal proceedings on the very same set of facts will end in
acquittal and the departmental action should not be proceeded with. It is settled law that if the acquittal in the criminal proceedings is not an
honourable one, it is always open to the Department to proceed with the departmental proceedings or enquiry. An honourable acquittal would only
mean an acquittal which is free from any doubt. In the case on hand, the judgment of the Sessions Court dated 2.11.1995 amply shows that after
analysing the prosecution case, and the oral and documentary evidence, the learned Sessions Judge after finding that there is no acceptable material
or evidence to connect the accused with the crime, acquitted him from the charges. The very same charges had been framed by the Department
and at the time of passing of the final order by the disciplinary authority viz., on 24.1.2000, the judgement of the criminal Court dated 2.11.1995
could very well be available before him. Unfortunately, the disciplinary authority has not taken it for consideration and not even made a reference
of the judgment of the Criminal Court in its order.
Applying the proposition laid down in the above referred Division Bench decisions of this Court to the facts of this case, as the charge is one
and the same in both the criminal case and in the departmental proceeding and in view of the fact that the criminal Court acquitted the petitioner on
merits, it is not desirable on the part of the respondents to proceed with the departmental proceeding. Consequently, the impugned charge memo is
liable to be set aside in accordance with the decisions cited supra.
The writ petition is therefore allowed and the impugned proceedings of the first respondent dated 24.6.2005 is set aside. No costs. Connected
WPMP No. 5078 of 2006 is closed.