Judgment :- 1. This Writ Petition has been filed to call for the records of the 1st respondent in connection with the order passed in J1/PR/59/99 dt.15.11.99 and quash the same and direct the 1st respondent to reinstate the applicant into service with all consequential service and monetary benefits. 2. The petitioner was appointed as Grade II Police Constable in the District Armed Reserve, Coimbatore District by an order dated 25.05.1998. After appointment, the petitioner was serving as Driver Police Constable in the District Armed Reserve, Coimbatore District. The petitioner went on casual leave for four days from 20.11.98. There was also two days holiday permission. He was to report duty on 26.11.98 but he did not report to duty on that date. Though he states that he did not report to duty since he fell ill, the real reason was that a criminal case was registered on 19.09.98 against him in Crime No.227 of 1998 on the file of the Karamadai Police Station for the offences under Section 392 of IPC. The petitioner avoided arrest and therefore he did not report to duty. He also approached this Court seeking Anticipatory Bail and this Court rejected his application on 01.02.1999. Therefore, he surrendered before the Judicial Magistrate, Coimbatore on 29.06.1999. He was later granted bail by this Court on 20.08.1999 with a condition that he should reside at Salem and report before the Salem Town Police Station every Monday and Wednesday. The above said condition was relaxed by this Court on 11.11.1999. 3. In the meantime, the petitioner was issued with charge memo dated 01.05.1999 under Rule 3 (b) of the Tamilnadu Police Subordinate Service (D&A) Rules, 1955 alleging two charges. (a) The first charge was that, on 19.09.1998 at 8.00 p.m. the petitioner alongwith three others came in an Ambassador car and intercepted a Jeep and committed robbery of Rs.1,31,000/- from one A.Venkatachalam who travelled in the jeep. It was also alleged that the petitioner and others pushed the said Venkatachalam from the car and took away the cash of Rs.1,31,000/-. It was further alleged that a criminal case was registered in Crime No.227 of 1998 on the file of Karamadai Police Station for offences u/s 392 IPC against the petitioner. The crux of the allegation was that he involved in the criminal case and causeddisrespect to the department. It was further alleged that a criminal case was registered in Crime No.227 of 1998 on the file of Karamadai Police Station for offences u/s 392 IPC against the petitioner. The crux of the allegation was that he involved in the criminal case and causeddisrespect to the department. (b) The second charge was that the petitioner remained unauthorisedly absent from 26.11.1998 without intimation for more than twenty one days. 4. According to the petitioner, the charge memo was not served on the petitioner. An enquiry officer was appointed to conduct enquiry on the charge memo by an order dated 25.06.1999 issued by the 1st respondent. The 2nd respondent was the enquiry officer. The enquiry was fixed on 12.07.1999 by way of enquiry notice dated 05.07.1999. While the petitioner was confined in Central Prison, Coimbatore, the enquiry officer conducted enquiry at the Central Prison, Coimbatore on 12.07.1999 and nine witnesses were examined on the side of the department. The petitioner did not cross examine the witnesses and requested the enquiry officer that he could be allowed to cross examine the witnesses after he was released on bail but the enquiry officer did not give him opportunity to cross examine the witnesses. The petitioner was not able to produce his witnesses also since he was in custody. In these circumstances, the enquiry officer gave a report dated 20.09.1999 holding that the charges were established. The said report of the enquiry officer was furnished to the petitioner by the 1st respondent by enclosing the same alongwith his letter dated 27.09.1999 and his comments thereon was sought for. Ultimately, the petitioner was dismissed from service by the impugned order dated 15.11.1999 passed by the 1st respondent. The petitioner filed this writ petition (O.A.No.7724 of 1999) to quash the said order dated 15.11.1999 and for a direction to reinstate the petitioner in service with all monetary benefits. 5. The respondents filed reply affidavit repudiating the allegations. It is alleged that on the basis of complaint of one Venkatachalam, a case in Karamadai Police Station in Crime No.227 of 1998 was registered under Section 392 of IPC against the petitioner and three others. The complaint was that, on 19.09.1998, the petitioner alongwith three others committed the offence of robbery of Rs.1,31,000/- from the said Venkatachalam who travelled in a jeep near Mettupalayam – Annur Road. The complaint was that, on 19.09.1998, the petitioner alongwith three others committed the offence of robbery of Rs.1,31,000/- from the said Venkatachalam who travelled in a jeep near Mettupalayam – Annur Road. It is also averred that the petitioner absented from duty from 26.11.1998 without leave or permission and that on completion of 21 days absence, he was treated as deserter with effect from 26.11.1998, as per the order dated 29.11.1998. The petitioner was dealt with under Rule 3 (b) of TNPSS (D&A) Rules in PR No.59/1998 for two count of charges. 6. The first count of charge is for involvement in a criminal case registered in Crime No.227 of 1998 on the file of Karamadai Police Station for offences u/s 392 of IPC and the second count of charge is for deserting the force with effect from 26.11.1998. It is stated that since the petitioner surrendered before the Court and was remanded on 29.06.1999, communications regarding conduct of enquiry in PR No.59/1999 was served on the petitioner through Superintendent, Central Prison, Coimbatore and the petitioner was given all opportunities to defend his case and he was allowed to cross examine the witnesses but he did not avail the opportunities. It is further stated that there is no bar to proceed departmental enquiry while there is a criminal case pending against him in Crime No.227 of 1998 on the file of Karamadai Police Station. 7. Heard both sides. The learned senior counsel appearing for the petitioner submitted that mere registration of a criminal case could not constitute a misconduct. It is submitted that the 1st respondent would have placed him under suspension pending the outcome of the criminal case. But mere registration of a criminal case would not be made as a charge. It is a different matter if the petitioner was convicted in the criminal case and the 1st respondent took further action based on such conviction. But it is stated that the criminal case ended in acquittal and he has produced the judgment dated 30.05.2007 of the First Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur in S.C.No.398 of 2006 acquitting him of the charges. 8. Further, it is submitted that the enquiry was conducted in violation of the principles of natural justice since the enquiry was conducted in the Central Prison, Coimbatore while he was confined in jail. 8. Further, it is submitted that the enquiry was conducted in violation of the principles of natural justice since the enquiry was conducted in the Central Prison, Coimbatore while he was confined in jail. He had no objection to have a simultaneous departmental action alongwith the criminal case and his objection was to wait till he was released on bail. But the enquiry was completed while the petitioner was in jail. The venue of the enquiry was Central Prision, Coimbatore. Hence, the petitioner was not given real opportunity to defend the case. He could not consult anybody on the conduct of the enquiry as he was confined in the prison. It was also submitted that he was not able to report for duty from 26.11.1998 for the aforesaid reasons. It was not his intention to remain absent. Since a false case was registered against him, he had no option but to remain absent as he was in jail and ultimately released on bail later. In any event, he would submit that it is excessive punishment taking into account the judgment of the criminal court and the circumstances under which he was not able to attend to duty. 8. On the other hand, the learned Government Advocate seeks to sustain the dismissal order and he has made his submissions based on the counter affidavit. 9. Considered the submissions made on the either side. Two charges were made against the petitioner in the charge memo dated 01.05.1999. Those charges are that - [a] he involved in a criminal case which was registered in Crime No.227 of 1998 on the file of Karamadai Police Station under Section 392 of IPC and thus he has caused disrespect to the department. [b] he remained unauthorisedly absent from 26.11.1998 for more than 21 days. The facts are not in dispute. The petitioner was an accused in Crime No.227 of 1998 on the file of Karamadai Police Station under Section 392 of IPC. He approached this Court seeking Anticipatory Bail and the same was rejected by this Court. Thereafter he surrendered before the concerned Magistrate on 29.06.1999. He was in prison till 28.08.1999. When he was in prison, the 2nd respondent set a letter dated 05.07.1999 stating that an enquiry would be held on 12.07.1999 at Central Prison, Coimbatore. The said letter was received on 08.07.1999. On 12.07.1999, eight witnesses were examined. Thereafter he surrendered before the concerned Magistrate on 29.06.1999. He was in prison till 28.08.1999. When he was in prison, the 2nd respondent set a letter dated 05.07.1999 stating that an enquiry would be held on 12.07.1999 at Central Prison, Coimbatore. The said letter was received on 08.07.1999. On 12.07.1999, eight witnesses were examined. Thereafter, a notice dated 04.08.1999 was given to the petitioner that the enquiry would be held on 04.08.1999 and two more witnesses would be examined. Accordingly, the enquiry was conducted at the Central Prison, Coimbatore on 04.08.1999 and two more witnesses were examined. Both on 12.07.1999 and 04.08.1999, the petitioner requested time for cross examination of witnesses after he was released on bail. While so, the enquiry officer submitted his report dated 20.09.1999 holding that the charges were established. In the enquiry report, enquiry officer has stated that the petitioner came out of jail on 20.08.1999 and that he did not send any letter until 20.09.1999 giving his list of witnesses or any other information. That was the reason given for rendering his finding. 9. In my considered view, the enquiry officer was not correct in conducting the enquiry when the petitioner was in Central Prison, Coimbatore. Further more, even on 20.08.1999 the enquiry officer did not send notice to the petitioner asking him to avail him opportunity to cross examine the witnesses. On the other hand, the enquiry officer has stated in his report that the petitioner did not send any letter giving the list of witnesses to be examined on his side. 10. In the above circumstances, I am of the view that the petitioner was not given opportunity to put forth his defence. Furthermore, as rightly contended by the learned Senior Counsel appearing for the petitioner, the first charge would not constitute a misconduct. Mere registering of a FIR could not be made as a charge without anything more. Ultimately, the petitioner was acquitted of the criminal charge by the judgment of the First Additional District and Sessions Judge, Coimbatore in the judgment dated 30.05.2007 in SC No.398 of 2006. Therefore, there is no merit in the first charge. 11. As I have already held that the enquiry was held in violation of principles of natural justice and the 2nd respondent was not correct in holding enquiry while the petitioner was in prison. Therefore, there is no merit in the first charge. 11. As I have already held that the enquiry was held in violation of principles of natural justice and the 2nd respondent was not correct in holding enquiry while the petitioner was in prison. Hence, in the normal circumstances, I could have remanded the matter back to the 1st respondent to hold a fresh enquiry. Since I have held that the first charge is not sustainable and the petitioner was also acquitted from by the Sessions Court, I am not inclined to remit the matter back to the authority. The second charge is that he was unauthorisedly absent for duty from 26.11.1999 for more than 21 days. Since a criminal case was foisted against him and he was confined in prison, he was not able to attend the duties. Hence, he could not be fully blamed for the absence. In the case of desertion, the First Bench of this Court in R.RAMESH VS. THE DEPUTY INSPECTOR GENERAL OF POLICE, KANCHEEPURAM RANGE, KANCHEEPURAM AND ANOTHERin W.A.No.58 of 2011 (decided on 27.01.2011) has heldthat the dismissal from service is too harsh a punishment. The said judgment is extracted hereunder - "Heard the learned counsel for the parties. This appeal is filed challenging the order of the learned single Judge dated 2.9.2008 passed in Writ Petition No.33624 of 2005. 2. The appellant / writ petitioner, who was serving as Grade – II Police Constable in the Police Department at Kancheepuram, was proceeded against departmentally on the charge that he remained absent from duty for a period of 21 days. The Enquiry Officer held the charge against the appellant as proved. In view of the finding of the Enquiry Officer, as also the fact that the appellant had earlier deserted the force on three occasions and absented himself from duty on two occasions, the disciplinary authority, viz. the second respondent herein, passed an order of dismissal from service against the appellant. The appellant challenged the same by filing the writ petition, which was dismissed by the learned single Judge, who held that the appellant, being employed in the Armed Reserve, was expected to maintain strict discipline and in view of his past conduct, the punishment of dismissal cannot be termed as excessive or disproportionate. 3. The appellant challenged the same by filing the writ petition, which was dismissed by the learned single Judge, who held that the appellant, being employed in the Armed Reserve, was expected to maintain strict discipline and in view of his past conduct, the punishment of dismissal cannot be termed as excessive or disproportionate. 3. After hearing the learned Senior counsel for the appellant and the learned Government Pleader, we are prima facie of the view that the punishment imposed on the appellant is disproportionate to the charge levelled against him and it is in fact, shocking the conscience of this Court. We, therefore, allow this writ appeal, set aside the impugned judgment passed by the learned single Judge and remit back the matter to the disciplinary authority, viz. the second respondent herein, to re-consider the matter with regard to the quantum of punishment imposed on the appellant and to take a decision within six weeks from today. It is made clear that in the event the quantum of punishment imposed on the appellant is reduced, he shall not make any claim with regard to the wages for the period he has not performed his duty, but the continuity in service will not be affected." 12. In the above circumstances, I have no hesitation to quash the impugned order. Further, it is made clear that the petitioner is not entitled to backwages. The 1st respondent is directed to reinstate the petitioner with continuity of services giving all notional benefits within a period of four (4) weeks from the date of receipt of a copy of this order. 13. With the above direction, the writ petition is disposed of. No costs. Consequently, connected Miscellaneous Petition are closed.