Judgment :- The Original Application in O.A.No.7769 of 1999 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner joined the Police Services as Grade-II Police Constable in the year 1981. He received 71 rewards for his efficient service and he had never been subjected to any punishment. He belongs to Pudukottai. One Mr.Devaraj, who was a teacher in the Municipal School at Pudukottai, was a friend to the petitioner. Mr.Devaraj was also belongs to Pudukottai. The petitioner got married to one Police Constable by name Kalaiselvi. Tmt.Josphin Rajakumari is a teacher in the Primary/Middle School at Pudukottai and was the wife of Mr.Devaraj. Mr.Devaraj lodged a complaint dated 15.05.1998 that the petitioner was in illicit intimacy with his wife from 1992. Mr.Devaraj resided with his wife and children at Gandhi Nagar, 2nd Street from January 1998. When Mr.Devaraj wanted to shift the house, his wife refused to go along with him. Mr.Devaraj shifted his residence to Periyar Nagar. Tmt.Josphin Rajakumari was alone at Gandhinagar. She vacated the Gandhinagar house on 10.05.1998 and the petitioner helped Tmt.Josphin Rajakumari in vacating the house by taking the house-hold articles in a mini lorry. Based on this complaint, the respondent directed the Deputy Superintendent of Police, Pudukottai, to conduct a preliminary enquiry. The Deputy Superintendent of Police recorded statements from seven persons and submitted his report on 17.11.1998. However, the report of Deputy Superintendent of Police was not furnished to the petitioner and the same was not relied on at any time. The respondent directed the Additional Superintendent of Police, Pudukottai to re-enquire the matter and to submit a report. The Additional Superintendent of Police did not re-enquire the witnesses examined by the Deputy Superintendent of Police, but he gave a report based on the statements recorded by Deputy Superintendent of Police. His report is dated 28.02.1999 and he also recommended to take disciplinary action. In his report, he found that the petitioner had illicit intimacy with Tmt.Josphin Rajakumari, wife of Mr.Devaraj. 3. Based on the report of the Additional District Superintendent of Police, the respondent issued a charge memo dated 22.06.1999 in P.R.No.65/99 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D&A) Rules. The following allegations were made:- (i) The petitioner had illicit intimacy with one Tmt.Joshpin Rajakumari, wife of Mr.Devaraj from 1992. (ii) The petitioner had talked with Tmt.Joshpin Rajakumari at different places. The following allegations were made:- (i) The petitioner had illicit intimacy with one Tmt.Joshpin Rajakumari, wife of Mr.Devaraj from 1992. (ii) The petitioner had talked with Tmt.Joshpin Rajakumari at different places. (iii) The petitioner lived with Tmt.Joshpin Rajakumari at many houses. (iv) The petitioner assisted Tmt.Joshpin Rajakumari to shift the house-hold articles in a mini lorry, when she vacated the house at Gandhinagar. (v) When Mr.Devaraj and Tmt.Joshpin Rajakumari were living at 1st Street, Marthandapuram during 1992, on one day at 4 pm, he saw his wife in compromising position with the petitioner in his house and the petitioner escaped when Mr.Devaraj had seen the ugly event. (vi) It is further alleged that when she worked in the Municipal School at llaithanneerpandal, Gandhinagar, Adapanvaial, etc. the petitioner met her in those schools and talked her and he also dropped her on a day in a Moped when she worked in Adapanvaial. (vii) It is further alleged that when Tmt.Joshpin Rajakumari lived alone at Gandhi Nagar, 2nd Street from January 1998, the petitioner lived with her in the said house. When she vacated the house on 10.05.1998, the petitioner assisted her in taking the house-hold articles in a mini lorry. After vacating the house at Gandhi Nagar, the petitioner took a house for rent for Tmt.Joshpin Rajakumari at Lakshmi Nagar and he lived with her in the said house from 10.05.1998 until she vacated the house at Lakshmi Nagar. On 10.02.1999 she vacated the Lakshmi Nagar house and went to the house at Sri Nagar. In the rented house at Srinagar also, the petitioner lived with Tmt.Joshpin Rajakumari. 4. Before the charge memo dated 22.06.1999 was issued to the petitioner, Mr.Devaraj expired on 02.06.1999. The Deputy Superintendent of Police, Anti-dowry Cell, Pudukottai, was appointed as Enquiry Officer by a proceeding dated 22.06.1999. Eight witnesses were examined in the enquiry. Seven witnesses were the persons who were examined by the Deputy Superintendent of Police in the preliminary enquiry and the eighth witness was the Additional District Superintendent of Police. The petitioner examined two defence witnesses. First defence witness was Tmt.Joshpin Rajakumari and second witness was Mr.Tamilselvam, a neighbour to Mr.Devaraj. 5. The Enquiry Officer gave a report on 21.09.1999 holding that the charges were partly proved. The Enquiry Officer held that the petitioner was found sharing the bed with Tmt.Joshpin Rajakumari was not proved. The petitioner examined two defence witnesses. First defence witness was Tmt.Joshpin Rajakumari and second witness was Mr.Tamilselvam, a neighbour to Mr.Devaraj. 5. The Enquiry Officer gave a report on 21.09.1999 holding that the charges were partly proved. The Enquiry Officer held that the petitioner was found sharing the bed with Tmt.Joshpin Rajakumari was not proved. He also held that the charge relating to assisting Tmt.Joshpin Rajakumari on 10.05.1998 in taking away house-hold articles from Gandhinagar was not proved. The charge relating to the petitioner living together with Tmt.Joshpin Rajakumari at Gandhinagar was also held to be not proved. However, the Enquiry Officer held that the charge relating to chitchatting with Tmt.Joshpin Rajakumari on different occasions was held proved and also that the petitioner lived together with Tmt.Joshpin Rajakumari at Lakshmi Nagar and Sri Nagar. 6. However the respondent disagreed with the findings of the Enquiry Officer and he issued a show-cause notice dated 17.11.1999 to the petitioner recording his dissent and sought the views of the petitioner thereon. The respondent came to the conclusion that all the charges were proved. Based on such a finding, the respondent passed an order dated 30.11.1999 imposing the punishment of compulsory retirement. 7. Aggrieved by the same, the petitioner filed O.A.No.7769 of 1999 (W.P.No.40629 of 2006) to quash the aforesaid punishment order. 8. While admitting the Original Application, the Tribunal granted an order of interim stay. In view of the interim order the petitioner continues in service. It is stated that during the pendency of the writ petition, he was promoted as Head Constable. 9. The respondent filed a reply affidavit refuting the allegations made in the Original Application. The respondent sought to justify the punishment order. According to respondent, the punishment order is based on the departmental enquiry and the evidence recorded therein. 10. Heard Mr.Ravishanmugam, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondent. 11. The learned counsel for the petitioner submits that the crux of the allegation was that the petitioner had illicit intimacy with one Tmt.Joshpin Rajakumari, wife of one Mr.Devaraj from 1992. The other allegations, namely, the petitioner talked her at the school where she was employed and he assisted her in vacating the house could not themselves be construed as misconduct, even according to the respondent. The other allegations, namely, the petitioner talked her at the school where she was employed and he assisted her in vacating the house could not themselves be construed as misconduct, even according to the respondent. In this connection, he referred to paragraph 12 of the show-cause notice dated 17.11.1999 issued by the respondent, wherein, the respondent himself stated that the real charge was illicit intimacy and the allegation as to assistance rendered by the petitioner in transporting the house-hold articles without illicit intimacy could not be stated to be misconduct. 12. The learned counsel has contended that the only issue is, whether there is any legal evidence in support of the charge that petitioner had illicit intimacy with Tmt.Joshpin Rajakumari. The learned counsel submits that there is absolutely no evidence to substantiate the charge of illicit intimacy. None of the witnesses supported the charge in the enquiry. Therefore, the respondent relied on the statement of the witnesses during the preliminary enquiry to record his conclusions that the charge was proved. According to the learned counsel, such a course is opposed to the well settled law of Honble Apex Court and of this Court in more than one decision. 13. On the other hand, the learned Government Advocate has made his submissions based on the reply affidavit and has sought to justify the punishment order. 14. I have considered the submissions made on either side. 15. Paragraphs 8 to 10 in the show cause notice of the respondent, recording his disagreement on the findings of the enquiry officer as to illicit intimacy, which are relevant for the case, are extracted here-under:- "8. In as much as PW-1, PW-2, PW-3 and PW-8 have clearly stated about the illicit intimacy and PW-4 and PW-5 have also not denied about the visits of the delinquent to the places where the said Tmt.Jospin Rajakumari was residing even at the end of the year 1998 and the beginning of the year 1999 and in the absence of reasonable explanation of the hostiled witness No.7 and on the basis of exhibits P-1 to P-7, Ex.P8 to Ex-P10 and Ex-P12, the charge against the delinquent for having illicit intimacy is proved and hence I disagree with the findings of the Enquiry Officer. 9. 9. Apart form this, DW-1 Tmt.Jospin Rajakumari with whom the delinquent has been alleged of having illicit intimacy has deposed that the delinquent was friend of her husband had the witness true, she should have justified the relationship with the delinquent after leaving the house and husband on 10.05.1998 as continuance of visits by the delinquent has been indirectly admitted by the Pws. 4 and 5 also during this period thro the prosecution exhibits P-6 and P-7 filed by them. 10. As far as the sharing of bed is concerned there is very remote chance of having a witness in Indian Society when the relationship is illicit. There is no justification in denying to rely on the exhibit P-2 i.e., xerox copy of petition given to PW-1 by Tr.Devaraj and exhibit P-9 i.e., statement of Tr.Devaraj given to PW-8 on simple reason that Tr.Devaraj expired. In the absence of any contradictory statement given by Tr.Devaraj who expired, the evidence of PW-1 Tr.Maria Jayaraj and PW-8 Tr.Sathiamoorthi, retired Additional.S.P. Have to be taken in consideration and exhibit P-2 and P-9 filed thro them have to be relied on. The delinquent who has questioned about the identification of writing of Late Tr.Devaraj has not produced any evidence to prove that the concerned document was not written by him. The DW-1 is an interested witness and hence I have no reason to neglect the evidence of prosecution only relying upon the evidence of hostiled PW-7 and DW-2on the death of Tr.Devaraj and hence I disagree with the enquiry officer and hold that the charge of illicit intimacy of the delinquent with Tmt.Jospin Rajakumari W/o Devaraj is proved." 16. The respondent stated in paragraph 8 of the reply affidavit that PW-1, PW-2, PW-3 and PW-8 have clearly stated about the illicit intimacy. 17. Hence, from the conclusions of the respondent and the reply affidavit, the respondent relied on the evidence of PW1, PW2, PW3 and Pw8 as proof for the charge as to illicit intimacy. According to me, PW-8 is an Investigating Officer and therefore, he is not a direct witness. In fact, as rightly contended by the learned counsel for the petitioner, PW-8 did not even re-enquire the persons who were enquired by the Deputy Superintendent of Police during the preliminary enquiry conducted by him. The learned counsel has also drawn my attention to the finding of the Enquiry Officer in this regard. In fact, as rightly contended by the learned counsel for the petitioner, PW-8 did not even re-enquire the persons who were enquired by the Deputy Superintendent of Police during the preliminary enquiry conducted by him. The learned counsel has also drawn my attention to the finding of the Enquiry Officer in this regard. 18. The following passage found at Page 12 of the report of the Enquiry Officer makes it very clear that the Additional District Superintendent of Police who was examined as PW-8 did not re-examine the witnesses. Hence, the evidence of PW-1, PW-2 and PW-3 only has to be looked into in this regard. But, these witnesses deposed that they were not direct witness to the illicit intimacy. PW-1 deposed that he received a complaint from Mr.Devaraj, and based on the complaint he wanted to enquire Tmt.Jospin Rajakumari, but Tmt.Jospin Rajakumari declined to attend the enquiry. PW-1 was a Village President. Mr.Devaraj gave a complaint to take action against his wife for having illicit intimacy with the petitioner. When he wanted to enquire into the matter, Tmt.Jospin Rajakumari declined to attend the enquiry by Panchayatdars. Nowhere he deposed about the illicit intimacy. PW-2 deposed that due to illicit relationship, Mr.Devaraj got seperated with Tmt.Jospin Rajakumari. It is not his categorical statement that he knew personally about the illicit relationship of petitioner with Tmt.Jospin Rajakumari. PW-3 also deposed that she heard about the illicit relationship of Tmt.Jospin Rajakumari with the petitioner and that Mr.Devaraj gave a petition to the Village Panchayat. Therefore, no prudent person could come to the conclusion that PW-1 to PW-3 clearly stated about illicit intimacy. The evidence as found in the enquiry could only be characterized as hearsay evidence and none had direct knowledge. Therefore, the deposition was based on the complaint given by Mr.Devaraj against his wife. Admittedly, Mr.Devaraj and his wife got separated from January 1992. Mr.Devaraj gave a complaint only thereafter, that too, in May 1998. His complaint in May 1998 should be looked with suspicion and the same should be rejected. There is no explanation for not giving such a complaint for six years when he had knowledge about the illicit intimacy even in the year 1992. Only after Tmt.Jospin Rajakumari refused to live with him, he made this complaint. Furthermore, Mr.Devaraj expired on 02.06.1999 and he was not examined in the enquiry. There is no explanation for not giving such a complaint for six years when he had knowledge about the illicit intimacy even in the year 1992. Only after Tmt.Jospin Rajakumari refused to live with him, he made this complaint. Furthermore, Mr.Devaraj expired on 02.06.1999 and he was not examined in the enquiry. But the respondent relied on the complaint of Mr.Devaraj and the statement made by him in the preliminary enquiry for his conclusions, as found in paragraph 10 of the reply affidavit. Further, the respondent relied on the statement of witnesses 1 to 7 made during the preliminary enquiry, though all those witnesses did not support the charge in the regular enquiry. Hence, I have no hesitation to come to the conclusion that there is no legal evidence. The respondent was not correct in placing reliance on the statements made in the preliminary enquiry, when those persons went back on their statements in the regular enquiry, as per the decision of the Honble Apex Court in Central Bank of India Ltd. Vs. Prakash Chand Jain reported in AIR 1969 Supreme Court 983 and the judgment of this Court in K.Palani Vs. State of Tamil Nadu rep. By the Secretary to Government, Home Department, Fort St.George, Madras-9 and others reported in 2007 Writ L.R.655. The relevant paragraphs of the the judgment in Central Bank of India Ltd. Vs. Prakash Chand Jain reported in AIR 1969 Supreme Court 983 is as follows:- "It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principle of natural justice, also cane be ignored by the domestic tribunals. The principle that a fact sought o be proved must be supported by statements made in the presence of the person against whom the enquiry is held and the statements made behind the back of the person charged are not to be treated as substantive evidence, is one of he basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence. " The relevant para in K.Palani Vs. State of Tamil Nadu rep. " The relevant para in K.Palani Vs. State of Tamil Nadu rep. By the Secretary to Government, Home Department, and others reported in 2007 Writ L.R.655 is as follows:- 8. Whether the statements made during the preliminary enquiry not corroborated by cross examination can be validly relied on by the Disciplinary authoriy was considered by the Supreme Court in the decision reported in (2004) 10 SCC 87 (Union of India v. Mohammed Ibrahim). The Honourable Supreme Court held that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry and for the said fact the Tribunal set aside the order of dismissal, which was upheld by the High Court and there is no error in the order setting aside the dismissal order. 9. A Division Bench of this Court by Judgment dated 22.02.2005 in W.P.Nos.29862 & 32581 of 2002 (The Deputy Inspector of General of Police, Villupuram and others v. V.Vanniaperumal and others) upheld the order of the Tribunal which set aside the order of removal from service. Paragraphs 6 and 8 of the judgment can be usually referred to, which reads thus, "6. We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the applicants. It is also relevant to note that apart from the applicants two more officers have also been implicated along with them. They are one Sattanathan, Sub-Inspector of Police of Antony, Inspector of Police. It is brought to our notice that Satanathan is no more and so far as the other officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the prosecution witnesses except PW.3, who is none other than the Deputy Superintendent of Police, the other witnesses viz., P.Ws.1,2,4, and 5 turned hostile before the Enquiry Officer and not supported their earlier statement made at the preliminary enquiry. The Enquiry Officer having noted the above aspect curiously submitted a report holdin that all the three charges levelled against them are proved based on the preliminary enquiry. 7..... 8. The Enquiry Officer having noted the above aspect curiously submitted a report holdin that all the three charges levelled against them are proved based on the preliminary enquiry. 7..... 8. In our case,we have already referred to the fact that the prosecution witnesses viz., P.Ws.1,2,4 and 5 turned hostile and not supported their preliminary version. However, the Enquiry Officer basing reliance on their earlier statement in the preliminary enquiry found that all the charges levelled against them are proved. In the light of the decision of the Superme Court referred to above, after full-fledged enquiry was held the preliminary enquiry had lost its importance. Further, we find no substance or material to arrive at a conclusion that "since all the three counts were proved by the prosecution beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry Officer,...". We are satisfied that there is no material to arrive at such a conclusion by the Deputy Inspector General of Police, while passing an order removing the applicants from service. All these aspects have been considered by the Tribunal in a proper manner and there is no acceptable material or evidence to take different view as that of the Tribunal. We find no merits in both the writ petitions. Accordingly, they are dismissed. No costs. Consequently, the connected miscellaneous petitions are dismissed." The said conclusion was arrived at by the Division Bench based on the decision of the Honourable Supreme Court reported in 1997 I SCC 299 (Narayana Datatraya Ramteerthakhar v. State of Maharashtra). 10. The above referred decision of the Division Bench was followed by me in the order dated 15.02.2006 in W.P.No.27019 of 2005 (B.Bala Murugan v. The Inspector General of Police, Madurai-2 and Two others), wherein the order of punishment was set aside. 13. In view of the above cited settled position of law on this aspect and having regard to the fact that there is no controversy about the enquiry officers finding of guilt of the petitioner solely relying upon the statement given before the Revenue Divisional Officer during the preliminary enquiry and there was no occasion to cross examine the said witness during the preliminary enquiry, I am of the view that the charges framed against the petitioner cannot be said to be validly proved. Hence the petitioner is bound to succeed in this writ petition challenging the order of dismissal passed based on the erroneous findings given by the Enquiry officer in his report. The consequential orders passed by the appellate authority, reversional authority and the Government in the mercy petition are also set-aside." 19. Furthermore, when Tmt.Josphin Rajakumari went into witness box and deposed as defence witness and categorically stated that she had no illicit relationship with the petitioner, the respondent described this witness as an interested witness. The concerned persons are Mr.Devaraj, Tmt.Josphin Rajakumari and the wife of the petitioner. As stated above, Mr.Devaraj was not alive and the complaint lodged by him 1998, complaining on his wife about the illicit relationship with the petitioner from 1992, has to be looked with suspicion as the same was not made immediately and the complaint was made after six years when his wife got separated from him. Admittedly, neither the wife of the petitioner nor Tmt.Josphin Rajakumari made any complaint against the behaviour of the petitioner. DW-2, the neighbour of Mr.Devaraj, also deposed that there was no illicit intimacy. All these factors infavour of the defence was not at all considered and that would render the findings of guilt perverse. 20. The respondent cannot approach the matter as stated in paragraph 10 of the show-cause notice regarding his dissent on the findings of the enquiry officer that there is very remote chance of having a witness in Indian Society for sharing of bed when the relationship is illicit. If a serious allegation is made that would lead to serious civil consequences, it is incumbent on the person who makes allegations to prove the same. But, there is absolutely no evidence to prove the charge of illicit intimacy. 21. For the aforesaid reasons, the impugned order is liable to be interfered with. Accordingly, the impugned order is quashed and the writ petition is allowed. There is no order as to costs.