IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 11.07.2007 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.30719 of 2003 and W.P.M.P.No.37453 of 2003 The Superintendent of Police, Virudhunagar District, Virudhunagar. .. Petitioner Versus 1. J.Muthiah Selvaraj Head Constable No.677, Virudhunagar District. 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai 104. .. Respondents Writ Petition filed under Article 226 of The Constitution of India to issue a Writ of certiorari to call for the records of the Tamil Nadu Administrative Tribunal, Chennai, the second respondent herein, dated 03.10.2001 in O.A.No.2721 of 1996 and quash the same. For petitioner : Mr.M.Dhandapani For respondents : Mr.s.Ilamvaluthi (for R1) O R D E R (Order of the Court was made by F.M.IBRAHIM KALIFULLA,J.) The superintendent of Police, Virudhunagar is the petitioner. The challenge is to the order of the State Administrative Tribunal dated 03.10.2001 passed in O.A.No.2721 of 1996. By the order impugned in this writ petition, the Tribunal set aside the charge memo issued to the first respondent in P.R.No.7 of 1996 dated NIL. https://hcservices.ecourts.gov.in/hcservices/ 2. At the relevant point of time, the first respondent was working as Head Constable in Alangulam Police Station. On 12.09.1994, a case in Cr.No.125 of 1994 was registered under Section 366 I.P.C. The first respondent was entrusted with the task of securing the accused and the kidnapped girl. The girl and the accused were handed over to the first respondent by the Ambattur Estate Police on 14.09.1994 evening. After taking into custody the accused and the girl, the first respondent ought to have brought them straight to Alangulam Police Station and handed over them to the Sub Inspector of Police for further investigation. But the first respondent alleged to have kept them in a house belonging to one Thiru Balasubramaniam the whole of night of 14.09.1994 and then took them to a lodge called Cauvery Lodge on 15.09.1994. Further under the guise of enquiring the girl, the first respondent molested the girl, while as per the Rules, the first respondent ought to have secured the presence of a lady constable. Thereafter, the girl was brought to Alangulam Police Station only on 16.09.1994. It is for the above said incident, the impugned charge memo came to be issued in P.R.No.7 of 1996. As the victim girl, namely Uma, preferred a complaint against the first respondent, a criminal case was lodged before the Chief Metropolitan Magistrate's Court in C.C.No.217 of 1996. In order to appreciate the allegations against the first respondent, it will be appropriate to extract the statement of the victim Uma, which is to the following effect: "gpwF ,uz;L Ml;nlhtpy; jhd;. uh$% kw;Wk; jiyik fhtyh; bry;tuh$; xU Ml;nlhtpYk;. ntYr;rhkp. knfc&;. Fl;o vd;w ,s";brHpad; K:tUk; , d;bdhU Ml;nlhtpYk; miHj;Jr; bry;yg;gl;ljhft[k;. v!;nll;oy; cs;s xU yhl;$%f;F brd;wt[ld; jd;id jdpahf tprhhpf;f ntz;Lk; vd;W Twp yhl;;$; U:Kf;F jiyik fhtyh; bry;tuh$; Tg;gpl;ljhft[k;. jhd; mt;thW tukhl;nld; vd;W Twpajw;F ehd; mjpfhhp brhy;Yk; nghJ tuntz;Lk; vd;W tw;g[Wj;jp Twp miHj;Jr; brd;wjhft[k;. m';F xU bts;is ngg;gh; vLj;Jf; bfhz;L eP eifia jpUo vLj;Jf; bfhz;L te;J tpl;lha; vd;W Twp jd; nriyia cUtp. fl;og; gpoj;J Kj;jk; bfhLj;jjhft[k; clnd jhd; mywpajhft[k;. clnd yhl;$py; kWgoa[k; fd;dj;jpy; Kj;jk; bfhLj;jjhft[k;. mtiu js;spg; ghh;j;jjhft[k;. jd;dhy; ky;Yf;fl;l Koatpy;iy vd;Wk;. clnd jhd; khkh vd;W fj;jpajhft[k;. clnd jd; khg;gps;is uh$%. fhtyh; ntYr;rhkp btspna , Ue;jth;fs; te;jjhft[k;. jhd; uh$%tplk; ,e;j Vl;L fl;og;gpoj;J Kj;jk; bfhLj;Jtpl;lhh; eltof;if rhpapy;iy vd;W brhd;djhft[k;. uh$% jiyikf; fhtyhplk; eP';fs; Vd; nriyiag; gpoj;J ,Gj;jPh;fs; vd;W nfl;ljw;F cd; kditpia ehd; xd;Wk; bra;atpy;iyna. mts; nfs;tp nfl;ljw;F ,t;thW bgha; brhy;fpwhs; vd;W brhd;djhft[k;. nkYk; ,tis jdpahfj;jhd; tprhhpf;f ntz;Lk; vd;W Twpajhft[k;. clnd yhl;i$ fhyp bra;Jtpl;L kWgoa[k; Ml;nlhtpy; brd;wjhft[k; Twpdhh;/ Ml;nlhtpy; bry;Yk; nghJ jd; mj;ij https://hcservices.ecourts.gov.in/hcservices/ kfd; nggp tPl;ow;F bry;fpnwhk; vd;W bgha; brhy;yp fhtyh; ntYr;rhkp ikj;Jdh; tPl;ow;F miHj;Jr; brd;W tpl;ljhft[k;. m';F brd;w gpd;[g[jhd; Vl;L j';fsplk; bgha; brhy;yp miHj;J te;jJ bjhp[a[bkd;Wk;. mg;nghJ ntYr;rhkpapd; ikj;Jdh; tPl;oy; ,y;iy vd;Wk;. mtUila kidtp kw;Wk; FHe;ijfs; ,Ue;jjhft[k;. ntYr;rhkp Kjypy; cs;ns brd;wjhft[k;. mtiu mtUila ikj;Jdh; kidtp tuntw;wjhft[k; Twpdhh;/ nkYk; Ml;nlhtpy; , Ue;J ,w';fpat[ld; Vd; nggp tPl;ow;F Tl;og; nghtjhf Twp ,';F Tl;o te;jPh;fs; vd;W ntYr;rhkp fhtyiu nfl;ljw;F jd;id jdpahf tprhhpf;f ntz;Lk; vd;Wk;. mj;ij kfd; tPl;ow;Fg; nghfyhk; vd;W brhd;dhy;jhd;. eP tUtha; vd;W Twpajhft[k; ntYr;rrhkp ikj;Jdh; tPl;oy; jd;id[ak; uh$%it [ak;. jiyik fhtyh; bry;tuh$; fLikahf moj;J ,k;rpj;jjhft[k;. ,k;ir gz;zqk;nghJ fhtyh; ntYr;rhkpapd; ikj;Jdh; kidtp ghh;j;Jf; bfhz;oUe;jhh;. Mdhy; jLf;ftpy;iy vd;Wk; gpwF me;j bgz; FHe;ijfis Tl;of; bfhz;L bkhl;il khof;Fr; brd;W tpl;ljhft[k; ntYr;rhkp. knfc&;. , s";brHpad; K:tUk; btspna brd;W tpl;ljhft[k;. clnd tPl;oy; cs; jhH;g;ghs; nghl;L tpl;ljhft[k;. gpd;dh; jdpj;jdpahf tprhhpf;f ntz;Lk; vd;W Twp m';F cs;s miwapy; uh$%it moj;J cs;ns js;sp btspna g{l;L nghl;Ltpl;ljhft[k;. jiyik fhtyUk; jhDk; kl;Lk; m';F ,Ue;jjhft[k;. mg;nghJ jd;Dila nriyia cUtp tpl;L. utpf;ifia fHl;o gpd;[g[wk; ,uz;L iffisa[k; utpf;ifahy; fl;o tpl;ljhft[k; nriyapd; xU jiyg;ig thapy; milj;Jk;. , d;bdhU jiyg;ig bfhz;L ,uz;L fhypYk; fl;o tpl;ljhft[k;. mjdhy; jd;dhy; jpkpw Koatpy;iy vd;Wk;. clk;gpy; ghthil kl;Lk; ,Ue;jhft[k; Twpdhh;/ nkYk; jhd; if. fhy;fs; fl;lg;gl;l epiyapy; bry;tuh$; jd;nky; gLj;Jf; bfhz;ljhy; jd;dhy; xd;Wk; bra;aKoatpy;iy vd;Wk;. mth; clk;gpy; fyh; $l;o kl;Lk;jhd; ,Ue;jjhft[k;. ghf;fp cilfis fHl;o tpl;ljhft[k;. gpwF jd; nky; gLj;Jf; bfhz;L jd; khh;gfj;ij gpoj;jjhft[k;. jd; nky; cUz;ljhft[k;. Kj;jk; bfhLj;jjhft[k;. cd;Dld; cly; cwt [ bfhz;lhy;jhd; rhl;rp fpilf;Fk;. kw;w fhhpa';;fSf;F rhl;rp fpilf;fhJ vd;W Twp jd; ,Lg;gpy; ,Ue;j ghthilia fHl;o tpl;ljhft[k; Twpdhh;/ nkYk; mth; TWifapy; jd;Dld; cly; cwt[[ bfhs;stpy;iy vd;Wk;. jd;id jd; vjphpy; Mil ,d;wp mk;kzj;Jld; epy; vd;W Twp ghthil mtpH;e;j epiyapy; jd;id epw;f itj;J bfhz;oUe;jjhft[k;. Kjypy; jd;id ,k;ir gz;Qqk; nghJ jhd; jLf;f Kad;w nghJ tisay; cile;J tpl;ljhft[k;. fhak; Vw;gl;ljhf[tk;. ifapy; rpfbul;lhy; Rl;ljhft[k;. jd;id fl;og;gpoj;J Kj;jk; bfhLf;Fk; nghJ cjl;il foj;jjhft[k;. mjdhy; jdf;F cjl;oy; fhak; Vw;gl;ljhft[k;. gpwF jdJ cilfis vLj;Jf; bfhLj;J cLj;jpf; bfhs;s brhd;djhft[k; Twpdhh;/ nkYk; mth; Twifapy; ,';F ele;j ve;j tptu';fisa[k; jd; tPl;Lf;fhuhplnkh. Ch;f;ffhuh;fsplnkh. tPl;oy; cs;ssth;fsplnkh Twf;TlhJ vd;Wk;. Twpdhy; capnuhL tplnkhl;nld; vd;W https://hcservices.ecourts.gov.in/hcservices/ Twpajhft[k;. gpwF fjit jpwe;J tpl;ljhft[k;. jd; tPl;Lf;fhuiu milj;jpUe;j fjit[ak; jpwe;J tpl;ljhft[k; bjhptpj;jhh;/ nkYk; jiyikf; fhtyh; jd;id eph;thzg;gLj;jpaij[ak; fl;o Kj;jk; bfhLj;jija[k;. cjl;oy; fhag;gLj;jpdija [k;. jd;id moj;jija[k;. jd; nky; $l;oa[ld; gLj;Jg; g[uz;lija[k; jhd; gae;J bfhz;L btspapy; brhy;ytpy;iy vd;Wk;. jd;id ntYr;rhkp ikj;Jdh; tPl;oy; khdg';fk; bra;[ak; nghJ ,ut[ Rkhh; kzp 08/30 ,Uf;Fk; vd;Wk;. tpahHf;fpHik vd;Wk;. Mdhy; njjp bjhpahJ vd;Wk; Twpdhh;/ " The criminal case ended in an acquittal. The appeal preferred by the State in Crl.A.No.997 of 1999 was also dismissed. It is in the above said background the first respondent moved the State Administrative Tribunal by filing O.A.No.2721 of 1996 and sought for a relief that the charge memo in P.R.No.7 of 19976 should be set aside. By the order impugned in this writ petition, the Tribunal solely on the ground that the criminal Court acquitted the first respondent held that no useful purpose would be served in the departmental action and so holding, set aside the charge memo. Aggrieved against the same, the petitioner has come forward with this writ petition. 3. Mr.M.Dhandapani, learned Special Government Pleader appearing for the petitioner took us through the statement of the victim girl as well as certain other persons who were present on the fateful days 14.04.1994 and 15.04.1994, when the first respondent was alleged to have committed the atrocities on the victim girl Uma as well as the accused against whom the case in Cr.No.125 of 1994 was registered in the Alangulam Police Station and submitted that for the atrocious behaviour alleged to have been committed by the first respondent, the Tribunal ought to have treated the case differently instead of merely stating that based on the acquittal ordered by the criminal court, the whole proceedings should be dropped against the first respondent. According to the learned Special Government Pleader, depending upon the grave allegations levelled against the first respondent and the fact that the degree of proof required in the departmental proceedings are not so very stringent as that of a criminal proceedings, the Tribunal ought not to have interfered with the charge memo issued to the first respondent. 4. As against the above submission, Mr.Ilamvaluthi, learned counsel appearing for the first respondent brought to our notice a letter now issued by the State Government dated 10.05.2007 as well as the consequential communication issued by the District Collector, Virudhunagar to the petitioner dated 22.05.2007, wherein, the State Government has expressed its decision to drop further action in the criminal prosecution ordered against the first respondent since the criminal appeal filed in Crl.A.No.997 of 1999 has been dismissed by this Court. The learned counsel therefore contended that when the State Government itself has taken such a conscious decision not to proceed with the criminal prosecution which has already ended in acquittal in favour of the first https://hcservices.ecourts.gov.in/hcservices/ respondent, in the same breath, the impugned order of the Tribunal in having set aside the charge memo issued by the first respondent should not also be interfered with. The learned counsel then contended that the first respondent is likely to retire in the month of October 2007 and therefore, at the fag end of his career the revival of the departmental action would cause serious prejudice to the first respondent. The learned counsel therefore contended that the writ petition deserves to be dismissed. 5. After hearing the learned counsel for the respective parties and on a perusal of the material papers placed before us, we are of the view that the conclusion of the Tribunal in having set aside the charge memo on the sole ground that the criminal case has ended in acquittal cannot be accepted. In this context, it will be worthwhile to refer to the recent decisions of the Hon'ble Supreme Court reported in 2007 (3) CTC 211 [NOIDA Entrepreneurs Assn. vs. NOIDA and others]. The Hon'ble Supreme Court, after referring to the earlier decisions reported in 2004 (7) SCC 442 [Kendriya Vidyalaya Sangathan and others v. T.Srinivas], 2005(10)SCC 471 [Hindustan Petroleum Corporation Ltd. and Others v. Sarvesh Berry], 2006(6)SCC 366 [Uttaranchal Road Transport Corpn. vs. Mansaram Nainwal], 1997(2)SCC 699 [Depot Manager, A.P.State Road Transport Corporation v. Mohd. Yousuf Miya and others], 1996(6)SCC 417 [State of Rajasthan v. B.K.Meena and others], 1999(3)SCC 679 [Capt. M.Paul Anthony v. Bharat Gold Mines Ltd.] has laid down the ratio in paragraph Nos.16 and 22 of its order, which reads as under: "16. The purpose of Departmental Enquiry and of prosecution is two different and distinct aspects. The Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The Departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the Disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guideline as inflexible rules in which the Departmental proceedings may or may not be stayed pending trial in Criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with Departmental enquiry and trial of a Criminal case unless the charge in the Criminal Trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as https://hcservices.ecourts.gov.in/hcservices/ distinguished from mere private rights punishable under Criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). Converse is the case of Departmental enquiry. The enquiry in a Departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the Department enquiry would seriously prejudice the delinquent in his defence at the trial in a Criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances." 22. The standard of proof required in Departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue. ...." 6. The Hon'ble Supreme Court has made it clear that while the criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender should make satisfaction to the public, the departmental enquiry is to maintain discipline in the service and efficiency of public service. The Supreme Court therefore held that it is always expedient that the disciplinary proceedings should be conducted and completed as expeditiously as possible. In fact, in paragraph No.22, the Hon'ble Supreme Court has laid down the law to the clear effect that even if there is an acquittal in the criminal proceedings, the same will not bar the initiation of departmental proceedings. It is by now well settled that in the departmental proceedings, what is required is preponderance of probability, while in the criminal case the guilt is to be proved beyond reasonable doubt. Therefore, in a case like this, where the Head Constable with whom the custody of a girl was entrusted and when it is alleged that during such custody, the Head Constable outraged the modesty of the girl to the maximum possible extent by taking her to a lodge that too without women escort police, it will not be in the interest of justice to state that in respect of the very same occurrence the criminal case ended in acquittal and therefore, the departmental proceedings should https://hcservices.ecourts.gov.in/hcservices/ be simply closed. If such a straight jacket formula is applied, it will have to be held that it will result in miscarriage of justice which cannot be approved of by the Court of law. The Tribunal should have therefore examined the position in the proper perspective instead of holding that in view of the acquittal by the criminal Court, the departmental action should be straight away concluded. For the above stated reasons, we are unable to sustain the order of the Tribunal. Therefore, we set aside the order impugned in this writ petition and direct the petitioner to proceed with the departmental action to its logical end by reviving the charge memo in P.R.No.7 of 1996 issued to the first respondent. 7. As far as the State Government's letter dated 10.05.2007 and the consequential communication of the Collector dated 22.05.2007, we are of the considered opinion that the State should have a rethinking on the issue and explore the possibilities of getting necessary fresh legal opinion about the correctness of the acquittal ordered on the ground of delay in preferring the FIR and work out the remedies in the manner known to law. We say so in view of the decision of the Hon'ble Supreme Court reported in 2006(3)Crimes 293(SC) [Dildar Singh vs. State of Punjab], wherein it has been held that in such cases, where the victim is a hapless women, delay in preferring the FIR will not be fatal to the prosecution. 8. The writ petition stands allowed. The impugned order of the Tribunal is set aside. The charge memo in P.R.No.7 of 1996 shall be restored to file for being proceeded with against the first respondent in accordance with law. No costs. Consequently, connected miscellaneous petition is closed. gms Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Superintendent of Police, Virudhunagar District,Virudhunagar. + One cc to Mr. S.Ilamvaludhi, Advocate SR 43279 + One cc to Govt Pleader SR 42098. SSK (co) sg 27/7/07 W.P.No.30719 of 2003 11.07.2007 https://hcservices.ecourts.gov.in/hcservices/