Findings in a departmental enquiry cannot stand when the criminal case and departmental proceedings are based on identical facts and evidence.

1. This order shall dispose of W.P.Nos.17891 of 2007 and 17892 of 2007 as the common question of law and facts are involved in these two writ petitions.

2. For the sake of brevity, facts are being taken from W.P.No.17891 of 2007.

3. The petitioner joined the Police Services as Grade II Police Constable on 01.06.1984. The petitioner had received about 10 rewards for his efficient services, but was also subjected to one minor punishment in his service carrier.

4. The petitioner while working at Padalam Police station, Kancheepuram district, was served with a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Services (D & A) Rules 1955 on the following charges:

(1) "Highly reprehensible conduct in approaching a lady Kalpana, w/o Balakrishnan of Vadapalani on 25/26.5.95 at about 02.00 hrs. between Pakkam and Sirunagalur bus stop for sexual intercourse and thereby involving as one of the accused in Melmaruvathur Police Station Cr.No.132/95 u/s 354 and 304(A) IPC.

(2) "Gross neglect of duty in not giving information to the superior officers immediately about the occurrence relating to the details as in Melmaruvathur Police Station Cr.No.132/95 u/s 354 and 304(A) IPC."

5. On these very allegationCr.No.132/95 under Sec.354 and 304(A) I.P.C. was registered against the petitioner, and two other Police Constables. The charge sheet was filed in the Court of Judicial Magistrate I, Maduranthagam in CC No.13/96 on 09.02.1996.

6. The petitioner had filed representation to defer the departmental enquiry pending criminal case, but his request was declined and enquiry officer was appointed to hold the departmental enquiry to look into the charges.

7. The enquiry officer examined 10 prosecution witnesses, and on appreciation of evidence, held both the charges proved. The learned Judicial Magistrate I, Maduranthagam however, acquitted the petitioner honourably from the charges under Sec.279, 354 and 304(A) I.P.C. while convicting Police Constable Thiru Selvam.

8. It is the submission of the petitioner, that in view of the honourable acquittal of the petitioner by the criminal Court, on the same set of charges, the contrary finding of the enquiry officer and order of punishment cannot be sustained in law.

9. The petitioner had also filed representation with the competent authority pointing out his acquittal by the criminal Court with request to drop the charges.

10. It is the case of the petitioner that without considering the representation, the order of punishment of removal from service was passed.

11. It is submitted that final order of punishment was passed by the Superintendent of Police, Special branch C.I.D., Chennai, though the petitioner was under the administrative control of the Superintendent of Police, Chengalput West, Kancheepuram district. The impugned order of punishment passed by the first respondent who was not competent to impose major punishment being without jurisdiction cannot be sustained in law.

12. It is also the submission of the petitioner that order of punishment was kept in file for four years, and communicated to the petitioner in December 2003 though the order is dated 16.04.1999.

13. The petitioner preferred an appeal to the Deputy Inspector General of Police, C.I.D. Intelligence, Chennai. The appeal was also rejected by passing non speaking order.

14. Besides challenging the enquiry proceedings and the order of punishment on the ground, that it was not open to the respondents to punish the petitioner when he was acquitted by the criminal Court on the same set of charges. The contention of the learned counsel for the petitioner therefore, is that the finding of the enquiry officer is perverse.

15. It is submitted by the petitioner;

(i) That one Tmt.Kalpana was not examined to hold the petitioner guilty, whereas the criminal Court on appreciation of evidence led, had recorded a positive finding that the petitioner had not molested Tmt.Kalpana or sought sexual favour from her.

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