D. Dhinakaran vs The Superintendent of Police and The Deputy Superintendent of Police

S. Tamilvanan, J.—Heard the learned senior counsel appearing for the petitioner as well as the learned Additional Government Pleader

appearing for the respondents. The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of

certiorari calling for the records of the respondents pertaining to the impugned charge memo dated 21.03.2006 made in Na.Ka. No. J1/PR

29/2006 on the file of the first respondent and quash the same.

The petitioner has stated that he entered into the service as a directly recruited Grade-II Police Constable in Salem District Armed Reserve on

17.01.1986. He was promoted as Grade-I Police Constable in the year 1994, while he was serving at Ramanathapuram and he was subsequently

promoted as Head Constable in the year 1999 at Coimbatore. The petitioner has further stated that he has received 11 rewards and has not come

to any adverse notice. He married one Devagi of Namakkal District, during the year 1986 and has got one son and a daughter at the age of 15 and

12 respectively, through her, on the date of filing of the writ petition.

Mr. K. Venkataramani, learned Senior Counsel appearing for the petitioner submits that due to some misunderstanding, Devagi wife of the

petitioner preferred a criminal complaint against the petitioner, based on which, a case was registered in Crime No. 2 of 2005 for the offence

punishable u/s 498(A), 352 IPC and Section 4 of the Dowry Prohibition Act and Section 494 and 506 Part II IPC on 03.02.2005. The petitioner

has further stated that he obtained anticipatory bail on 14.03.2005 and also came out on bail. The aforesaid criminal case was registered in Crime

No. 2 of 2005, on the file of Podanur A.W. Police Station, Coimbatore District, was investigated and charge sheet was also filed against the

petitioner before the Judicial Magistrate-VI, Coimbatore and re-numbered as C.C. No. 839 of 2005. After the Trial, the case ended in acquittal,

however, the respondents initiated departmental proceeding whereby two charges were framed against the petitioner that he had harassed his wife

demanding dowry and living with another woman during the subsistence of the marriage with the said defacto complainant Devagi. Learned senior

counsel appearing for the petitioner argued that the charge memo became ineffective in view of the acquittal recorded in the criminal case. It is

further argued that the aforesaid criminal case in C.C. No. 839 of 2005 is not related to the official duty of the petitioner, but only on the

misunderstanding between the petitioner and his wife, she gave a complaint against the petitioner on frivolous grounds.

Per contra, Mr. R. Govindasamy, learned Additional Government Pleader appearing for the respondents submitted that in pursuance of the

issuance of charge memo, the District Superintendent of Police, Coimbatore, first respondent herein by order dated 29.05.2006, appointed

Deputy Superintendent of Police, District Crime Branch, Coimbatore, as enquiry officer in C. No. J1/P.R. 29/2006, under rule 3(b) of Tamil Nadu

Police Subordinate Services (Discipline and Appeal) Rules 1955 hereinafter referred to as TNPSS (D & A) Rules, against the petitioner herein

and placed him under suspension on the date of the order.

Learned senior counsel appearing for the petitioner produced a xerox copy of the judgment rendered in the case in C.C. No. 839 of 2005,

wherein it is seen that the petitioner herein, arrayed as an accused, was acquitted by judgment dated 20.06.2012 on the file of the Judicial

Magistrate No. VI, Coimbatore for the charges levelled against him u/s 498(A) and 506 Part II of IPC, holding that he was not guilty of the

offence to be convicted. The findings of the Court below was also brought to the notice of this Court. The petitioner''s wife Devagi had been

examined as PW 1, however, as per the findings, she has not stated anything about the alleged illegal intimacy with another woman and no other

witness was examined to establish the allegation that the petitioner was living with some other woman against law. Similarly, so far as the allegation

against the petitioner demanding dowry and the other offence punishable u/s 498(A) and 506 Part II of IPC, there was no evidence to establish the

same by way of adducing sufficient oral and documentary evidence. So far as the charge framed u/s 506 Part II IPC is concerned, learned Judicial

Magistrate has found that the evidence adduced by PW 1 and 2 was self contradictory. In fact the defacto complainant, PW 1 has not stated that

the petitioner had threatened her with weapon or orally so as to create fear in the mind of the said witness. On the aforesaid circumstances, the

learned Judicial Magistrate was of the view that the alleged guilt against the petitioner punishable u/s 506 Part II IPC was not established by the

prosecution.

It is an admitted fact that the charge memo was issued by the respondents, only based on the criminal case registered against the petitioner and

the case had been registered on the complaint given by his wife, who was examined as PW 1 before the Judicial Magistrate. Learned Additional

Government Pleader submitted that the criminal case ended in acquittal, cannot be a ground to drop the disciplinary proceeding initiated against

any Government employee. It is not in dispute that the criminal case registered against the petitioner was not based on any offence relating to the

official duty of the petitioner so as to attract provisions of the Prevention of Corruption Act. Admittedly the criminal case was registered and the

petitioner was prosecuted only on the complaint given by his wife u/s 498(A) and other penal provisions of law.

A perusal of the judgment dated 20.06.2012 in C.C. No. 843 of 2005 on the file of the Judicial Magistrate No. VI, Coimbatore clearly shows

that there was no evidence adduced by the prosecution or the defacto complainant to establish the charges levelled against the petitioner either u/s

498(A) and Section 4 of Dowry Prohibition Act or u/s 506 part II IPC to convict him under the said provisions of law, hence, the Court below

recorded acquittal. The departmental proceeding is based on the criminal case registered against the petitioner, hence, the departmental proceeding

has no legs to stand independently.

In this regard, learned Senior Counsel appearing for the petitioner relied on a decision in P. Chinnadurai Vs. The Inspector General of

Registration, Chennai-28, , relying various decisions, this Court (VDPJ) held that the charge memo relating to the said writ petition was not

sustainable in law as the petitioner got hon''ble acquittal in the criminal case and accordingly, the same was quashed. In Capt. M. Paul Anthony Vs.

Bharat Gold Mines Ltd. and Another, , the Hon''ble Supreme Court has ruled that when there is a hon''ble acquittal of an employee during the

pendency of the departmental proceeding, the same is required to be taken note of.

In S. Natchathram v. The Superintendent of Police, Madurai District, Madurai, 2011 (3) LLN 318 (Mad), it has been held as follows:

....

Though Courts have consistently held that quashing or setting aside the charge, at the threshold is generally not permissible, there is no hard

rule that in every case, where disciplinary action is initiated, the charged official should undergo the ordeal of facing the enquiry and ultimately, if

any punishment is imposed, he should challenge the same in the manner known to law. It is well known that the purpose of initiation of the

departmental action is to award a suitable punishment for the alleged misconduct. In the case on hand, the alleged misconduct is involvement of the

petitioner in a criminal case in Crime No. 50 of 1990 on the file of the learned Judicial Magistrate No. IV, Madurai. When the First Information

Report registered against the petitioner itself has been found to be unsafe to proceed further and when the criminal court has categorically found

that there was no evidence for demand of dowry, no useful purpose would be served in conducting an enquiry against the petitioner. On the other

hand, as rightly contended by learned counsel for the petitioner, it would be unnecessary harassment for the petitioner to undergo the ordeal. On

the facts of this case, this Court is of the considered view that mere involvement of the petitioner in the First Information Report, which has been

found to be unreliable and unsafe, cannot be a subject matter of departmental proceedings and therefore, the second count of charge also falls to

the ground.

In G.M. Tank Vs. State of Gujarat and Another, , the Hon''ble Apex Court has held as follows:

The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against

the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given

by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to

continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused

is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in anyway

fettered.

It has been categorically held by the Hon''ble Supreme Court in Paul Anthony''s case that a hon''ble acquittal in a criminal case, has relevancy

in favour of the employee facing departmental enquiry. It cannot be disputed that in any criminal case, the prosecution should establish the guilt of

an accused beyond reasonable doubt whereas in departmental proceeding, the alleged delinquency of an employee need not be proved beyond

reasonable doubt, even preponderance of probability is sufficient to establish the delinquency.

Learned Additional Government Pleader appearing for the respondents submitted that the petitioner is working in the uniformed service and

therefore, the police department has to maintain utmost discipline, even in case of acquittal, in favour of an employee, there is no legal bar for the

respondents to proceed with the departmental enquiry. In the instant case, departmental enquiry was initiated based on the complaint given by the

wife of the petitioner/defacto complainant and strictly speaking there is no direct bearing on the official duty of the petitioner, however, based on

the arrest in connection with the alleged offence and the charge memo was issued on the petitioner. Though he was suspended, he was later on re-

instated in service. On the aforesaid circumstances, the alleged offence is not directly connected with the petitioner''s official duty and the finding

the learned Judicial Magistrate has categorically held that the prosecution has not established the guilt against the petitioner by adducing any

evidence. Therefore, it has to be construed only as a hon''ble acquittal. It being a private offence not related to the official duty of the petitioner, the

respondents cannot proceed with the departmental proceeding, ignoring the acquittal recorded in the case which is not directly related to the

official duty of the petitioner.

This Court (K.N. Basha, J.) in the order dated 20.03.2012 passed in W.P. No. 19704 of 2011 has held as follows:

The last but not the least factor to be borne in mind of this Court is that one of the co-delinquent, viz., one Dhasarathan, has been exonerated

in the departmental proceedings in respect of charge No. 3, holding that the charges levelled against him have not been proved. Therefore, it is

crystal clear that the department is not having any other evidence or materials apart from the evidence adduced in the criminal case and as such,

subjecting the petitioner to undergo the ordeal of the departmental proceedings would be certainly unfair and unreasonable.

As decided by the Hon''ble Supreme Court in Paul Antony''s case (1) a hon''ble acquittal is the term applicable, when there is no legal

evidence to convict an accused (2) when the accused is acquitted even without providing benefit of doubt in his favour (3) similarly if the yardstick

of preponderance of probability is applied, based on the evidence adduced in the criminal case and which is not related to the official duty of the

delinquent/accused. On the said circumstances, acquittal has to be construed as a hon''ble acquittal.

It is crystal clear that the petitioner was acquitted as there was no legal evidence available to convict the petitioner in the criminal case and it is

seen that the petitioner herein was not acquitted by providing benefit of doubt in favour of the petitioner/accused. Hence the acquittal recorded by

the Judicial Magistrate, which has reached finality has to be construed as hon''ble acquittal.

After the acquittal of the petitioner in the criminal case registered against him, based on the complaint given by his wife, there is no possibility to

adduce further evidence in the departmental proceeding to establish the alleged delinquency. The departmental proceeding was initiated by the

respondents only based on the criminal case registered on the complaint given by the wife of the petitioner which ended in hon''ble acquittal. On the

aforesaid facts and circumstances, nothing survives against the petitioner, hence, he need not face the ordeal of the departmental proceeding.

Therefore, this Court has no hesitation to quash the impugned department proceeding initiated against the petitioner, in view of the hon''ble acquittal

recorded by the Judicial Magistrate in C.C. No. 839 of 2005 which has admittedly reached finality. In the result, the Writ Petition is allowed and

the impugned charge memo issued by the first respondent in Na.Ka. No. J1/PR29/