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Judgment
P. Jyothimani, J.—The writ petition is directed against the order of the 2nd Respondent, dated 27.10.2005, by which the Petitioner, who
was a police constable and working in the Armed Reserve Force at Chennai and consequently transferred to Karur, was dismissed from service
and it was confirmed by the appellate authority, namely the 1st Respondent, under the dated 17.09.2007.
The Petitioner was placed under suspension on 03.05.2005 and on the same date a charge memo was issued against him, which is to the effect
that he, having married one Kavitha and during the life time of his wife, had illegal intimacy with one Indira, wife of one Ulaganathan and thereby
caused disrespect to the Police Department. After the explanation was submitted by the Petitioner to the charges, the Deputy Superintendent of
Police (PEW), Karur, was appointed as the enquiry officer, who, after conducting an elaborate enquiry, has submitted a report on 06.09.2005,
copy of which was served to the Petitioner, for which the Petitioner has submitted his explanation on 02.10.2005. Thereafter, the 2nd Respondent
has passed the impugned order of dismissal, which was confirmed by the 1st Respondent in the appeal preferred by the Petitioner.
In the enquiry, before the enquiry officer, it is seen that on the side of the department five witnesses were examined, out of whom the 1st witness
happened to be the wife of the Petitioner by name Kavitha, who has stated that the Petitioner, namely her husband, had illegal intimacy with one
Indira during the subsistence of the marriage between them. More startling point is that the husband of the said Indira, who is said to have intimacy
with the Petitioner, namely Ulaganathan, has himself given evidence before the enquiry officer as P.W.4 wherein he has categorically stated that he
noted some changes in his wife''s behaviour and after finding out some photographs when he insisted his wife she fairly admitted her illegal intimacy
with the Petitioner. As it is seen in the enquiry officer''s report, it shows that the said Indira having admitted her illegal intimacy with the Petitioner
has even threatened her husband Ulaganathan that if the said fact is revealed to others she will commit suicide and it was in those circumstances the
said Ulaganathan kept quiet for some time.
The impugned orders are challenged by the Petitioner, as vehemently contended by Mr. M. Sarvanakumar, learned Counsel for the Petitioner,
that in the criminal complaint given by the wife of the Petitioner, namely Kavitha, the Petitioner was acquitted by the criminal court on the basis of
the fact that the photographs produced before the criminal court about the intimate relationship between the Petitioner and Indira cannot itself be a
sufficient proof for adultery and, therefore, according to the counsel, when the competent criminal court has given a judgment in the criminal case in
which the said Indira was an accused acquitting the Petitioner, the disciplinary authority should consider the same. It is his further submission that
the criminal court has given judgment much after the decision of the disciplinary authority, namely the judgment in the criminal case was on
16.11.2009, while the order of punishment came to be passed by the 2nd Respondent on 27.10.2005 and confirmed by the 1st Respondent on
17.09.2007 and, therefore, he requested that the matter may be remitted back to the 1st Respondent for fresh consideration in the light of the
judgment of the criminal court.
The said submission of the learned Counsel for the Petitioner is not acceptable for two reasons. Firstly, onus of proof in a disciplinary
proceedings is based on preponderance of probabilities, while, in criminal case, onus of proof is beyond all reasonable doubts. Further, absolutely
there is no bar for the disciplinary authority from proceeding with the departmental enquiry when there is a criminal case pending against the
delinquent officer. Criminal proceedings and the departmental proceedings are totally different proceedings and one is not dependant on another
and absolutely no bar in Police Standing Order from proceeding simultaneously both in the criminal case as well as in the departmental
proceedings.
In the present case, it is, in the departmental proceedings, the husband of the said Indira with whom the Petitioner is said to have illegal intimacy
has given evidence in support of the charge framed against the Petitioner. When such an unimpeachable evidence is available before the enquiry
officer, I am of the view that no further proof at all is required for the purpose of finding the Petitioner guilty of the charge framed against him in the
disciplinary proceedings.
The further contention of the learned Counsel for the Petitioner that the Petitioner requested the enquiry officer to examine the said Indira on the
side of the department, since, according to him, the department which has framed charge in order to prove their charge should examine proper
witness but, that has been rejected by the enquiry officer. As correctly found by the appellate authority, even if the enquiry officer has rejected the
request of the Petitioner to examine the said Indira as a department witness, there was no impediment on the part of the Petitioner to examine her
as a defence witness on his side. Having not done so, certainly it is not open to the Petitioner to contend as if there is violation of principles of
natural justice. In normal circumstances, a person is not expected to speak about the chastity of his wife but, in this case, the husband of the said
Indira has come as a witness in the disciplinary proceedings and spoken about his wife and that itself is sufficient to prove the charge. Moreover, in
a disciplined force, like Police force, such a person against whom clinching evidence has been given is not expected to plead any principles of
fairness and other things. Even fairness can be made applicable only in cases of normal circumstances where a person behaves properly.
Law is well settled that in a case of departmental proceedings, under Article 226 of the Constitution of India it is not for the Court to decide
about the sufficiency of evidence which are analysed by the disciplinary authority. This Court, while exercising its extraordinary jurisdiction, is not
concerned about the decision taken by the authority in a disciplinary proceedings but, it is the decision-making process can alone be the subject
matter of judicial review under Article 226 of the Constitution of India. This has been the consistent view expressed by the Apex Court, as it is
seen in Union of India and Ors. v. Dwarka Prasad Tiwari (2007) 2 MLJ 278 , wherein, while explaining Wednesbury''s principle, the Supreme
Court has held as follows:
The common thread running through in all these decisions is that the Court should not interfere with the administrator''s decision unless it was
illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral
standards. In view of what has been stated in the Wednesbury''s case 1948 (1) KB 223 the Court would not go into the correctness of the choice
made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is
limited to the deficiency in decision-making process and not the decision.
The further argument of the learned Counsel for the Petitioner that the punishment is not proportionate to the charges proved against the
Petitioner is not at all acceptable. This is a case where the punishment imposed is not shockingly improportionate to the charges proved against the
Petitioner. The charges framed and proved against the Petitioner is grave in nature and there can be no charge graver than this for a person who is
holding a post in a disciplined force.
In such view of the matter, the Petitioner is not entitled for the relief sought for in the writ petition. The writ petition fails and the same is
accordingly dismissed. No order as to costs.