(Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the order dated 14.07.2021 made in WP No.16230 of 2018 and allow this Writ Appeal.)

S.M. Subramaniam, J.

1. Under assail is the writ order dated 14.07.2021 passed in WP No.16230 of 2018. State preferred the present Intra Court Appeal under Clause 15 of the Letters Patent.

2. The respondent instituted writ proceedings challenging the punishment of removal from service. Since the writ Court allowed the writ petition, State preferred the writ appeal.

3. The facts in brief are that the respondent was appointed as Grade II Police Constable in Armed Reserve, Greater Chennai Police. On initiation of departmental disciplinary proceedings under Rule 3(b) of the Tamil Nadu Police Subordinate Service Discipline and Appeal rules, he was placed under suspension. A criminal case was also registered against him in crime No.1478 of 2003 and subsequently, the case was tried in Calendar Case No.184 of 2004 and the respondent was acquitted on the ground of benefit of doubt by judgment dated 04.05.2012 by the II Additional Special Court under NDPS Act.

4. The following charges are framed against the respondent.

                   Delinquencies:-

                   1.On 26.11.2003 at 18.30 hours, in white ambassador car bearing registration No.TN 02 Z 2966, entered Ramanathan street from Usman Road and stopped on the left side and there kept a polythene cover containing white powder, by saying heroin powder and engaging in the act of cheating and extorting money. Thereby involved in R-1, Mambalam Police Station Criminal Case No.1478 of 2003, dated 26.11.2003 under Section 420, 511 IPC. It is a highly reprehensible act in the disciplined force like Police Department.

                   2.Highly reprehensible conduct in having absented for duty from 26.11.2003 at 07.00 Hrs without any leave, permission or information to the Higher Officials in the disciplined force.

5. The respondent was arrested in connection with the criminal case registered under the NDPS Act on 26.11.2003. He was released on bail on 08.04.2004. He remained unauthorisedly absent and for that also, a charge has been framed by the department.

6. The learned Government Pleader would mainly contend that the respondent willfully and intentionally remained absent in the departmental disciplinary proceedings despite opportunities granted on several occasions. Even on receipt of four summonses, he remained absent and not participated in the domestic enquiry. Thus, the enquiry officer conducted an ex-parte enquiry and submitted a report. The findings of the enquiry officer were accepted by the disciplinary authority, who in turn, by complying with the procedures, imposed the penalty of removal from service. The learned Government Pleader would further contend that a criminal case was registered under the NDPS Act. He was acquitted on benefit of doubt. Therefore, there is no impediment for the disciplinary authority to impose penalty under the Discipline and Appeal Rules. In order to maintain discipline and morale amongst the Armed Reserve Police/Uniformed Services, the authorities have taken action and imposed penalty, which cannot be construed as disproportionate. Further, the writ Court has not considered the legal principles and the gravity of the charges proved against the respondent.

7. The learned counsel Ms.Selvi George appearing on behalf of the respondent would oppose by stating that the respondent was arrested on 26.11.2003 and released on bail on 08.04.2004. During the said period, he was in jail and therefore, the charge regarding unauthorised absence cannot be sustained. In respect of the first charge, an ex-parte enquiry was conducted. The criminal Court acquitted the respondent. During the pendency of the criminal case, the respondent submitted a representation to the disciplinary authority to keep the departmental disciplinary proceedings in abeyance till such time the criminal case is disposed of. Instead of postponing the enquiry proceedings, an ex-parte enquiry was conducted, which is not in accordance with law. Thus, the writ Court has considered this aspect and allowed the writ petition. The punishment of removal from service is disproportionate. During the pendency of the present case, one leg of the respondent was amputated and therefore, a lenient view is to be taken by this Court.

8. This Court has considered the rival submissions made between the parties to the lis.

9. The nature of the charge in the present case is to be considered since the respondent was serving in Uniformed Services. The charge was that he was standing with white colour ambassador car at left side of Ramanathan street, Usman Road and was fraudulently selling white powder as heroin powder for making money. A criminal case was registered by the police in Crime No.1478 of 2003. Before the criminal Court, the prosecution has failed to prove the charges and he was acquitted on benefit of doubt. As far as the departmental charges are concerned, it is all about fraudulent selling of white powder as heroin powder for making money by standing in a public road. Therefore, the acquittal in the criminal case per se would not constitute a ground to grant exoneration in the departmental disciplinary proceedings.

10. The governing legal principles on departmental disciplinary proceedings are that;

                   A.The procedures to be followed in departmental disciplinary proceedings and criminal proceedings are distinct and different.

                   B. Departmental disciplinary proceedings are not dependent on the criminal proceedings.

                   C.High standard of proof would require to convict a person under criminal law.

                   D.No such strict proof is required to punish a Government servant under the Discipline and Appeal Rules and preponderance of probabilities are sufficient to punish an employee under the Discipline and Appeal Rules.

11. Pendency of the criminal case is not a bar to conduct departmental disciplinary proceedings. Since the procedures are distinct and different, there is no bar for the authorities to continue the departmental proceedings and conclude the same independently by following the procedures as contemplated under the Discipline and Appeal Rules and by affording an opportunity to the delinquent officer.

12. Mere acquittal in a criminal case per se would not constitute a ground to seek exoneration from the departmental disciplinary proceedings.

13. Let us now examine the procedures followed in the present case. A charge memo has been issued under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules in PR.No.22/PR 3 (2)/2003, dated 23.01.2004. The charges are grave in nature. Annexure - II to the charge memo provides statement of defence of the charges levelled against the respondent. Annexure – III denotes evidences to prove the charges. Annexure - IV to the charge memo provides three witnesses to be examined to prove the charges. The disciplinary authority provided an opportunity to the respondent to defend his case. Four summonses were served to the respondent/delinquent to appear for the oral enquiry on 16.06.2004, 15.07.2004, 24.08.2004 and 23.09.2004 well in advance. The respondent had acknowledged the summonses on 12.06.2004, 11.07.2004, 23.08.2004 and 20.09.2004 respectively. But, he did not attend the oral enquiry. Therefore, the enquiry officer proceeded with the enquiry proceedings. Three prosecution witnesses had been examined and five prosecution documents were filed. The enquiry officer submitted an ex-parte minutes holding that the charges are held proved based on the documents filed. After the enquiry officer’s report, the respondent was advised to submit his further representation within 15 days and to that effect, a show cause notice was issued. He had submitted his further representation on 19.02.2005. He made a request not to pass final orders based on the report of the enquiry officer till such time the criminal case is over. However, the said representation was not considered by the disciplinary authority and final order was passed imposing the punishment of removal from service.

14. The issue to be considered is whether the departmental disciplinary proceedings can go on during the pendency of the criminal case. The legal position in this regard is well settled. This Court has considered the legal principles in the aforementioned paragraphs. Pendency of the criminal case is not a bar to continue and conclude the departmental disciplinary enquiry proceedings. If records, documents and evidences to prove the charges are available with the department, there is no impediment to the disciplinary authority to continue and conclude the disciplinary proceedings independently. Therefore, the authorities declining the request of a delinquent officer to keep the departmental disciplinary proceedings in abeyance cannot be construed as infirmity.

15. Regarding the procedures followed and the scope of judicial review under Article 226, this Court is of the considered view that the High Court in exercise of the powers of judicial review under Article 226 of the Constitution of India has to ensure the process through which a decision has been taken by the competent authority in consonance with the Statutes and Rules, but not the decision itself.

16. In the present case, the Rules of natural justice have been complied with. Four summonses came to be issued affording opportunities to the respondent to appear in the oral enquiry. However, the respondent failed to avail the opportunities. Therefore, the ex-parte enquiry cannot be construed as infirmity. Findings of misconduct is based on some evidence. In the present case, three prosecution witnesses have been examined and five prosecution documents were filed and considering the documents and evidences, the enquiry officer submitted his report holding that the charges are held proved. The Statutory Rules governing the conduct of disciplinary enquiry have been observed in the present case. Thus, there is no perversity as such.

17. The learned counsel Ms.Selvi George would raise a ground of proportionality. In this context, this Court has to consider the nature of the public duties and the gravity of the proved charges. The respondent was holding the post of Grade II Police Constable in Armed Reserve Police which is Uniformed service. Therefore, indiscipline in any form in Uniformed service is intolerable. Any leniency in respect of such misconduct committed by the personnel in Uniformed services, the same will not only set a bad precedent, but would also lower the morale of personnel in the Uniformed forces. The proved charges against the respondent is that he entered into Ramanathan Street from Usman Road and stopped white ambassador car on the left side and kept polythene cover containing white powder by saying heroin powder and engaged in the act of cheating and extorting money. Such nature of proved charges may not warrant any leniency or misplaced sympathy from the hands of this Court. Utmost discipline amongst the Uniformed services are of paramount important as they are responsible for maintaining law and order in the Society. That being so, an Uniformed personnel involving in such misconduct at no circumstances to be viewed lightly. Thus, the submissions made on behalf of the respondent deserves no merit consideration.

18. The writ Court has not considered the legal principles nor considered the gravity of the proved charges. The writ Court proceeded merely on the basis that the respondent was acquitted in a criminal case. Therefore, the punishment imposed in the departmental disciplinary proceedings cannot be sustained. Such a finding is running counter to the legal principles settled and thus, this Court has no option, but to interfere with the writ order. Consequently, the writ order dated 14.07.2021 passed in WP No.16230 of 2018 is set aside and the Writ Appeal is allowed. No costs. Consequently, connected miscellaneous petitions are closed.