Judgment :- 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. 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. (ii) That even during the oral enquiry, P.W.1 Tmt.Sumathy in her cross examination admitted that it was only Police Constable Thiru Selvam who had approached Tmt.Kalpana for sexual favour and had specifically denied the role of the petitioner in this. (iii) That in Cr.No.132/95 the complainant Tmt.Sumathy had not named the petitioner, but had filed a complaint only against the Police Constable Thiru Selvam. (iv) That the respondent while recording a finding of guilt, the respondent sat on appeal over the decision of the criminal Court. 16. (iii) That in Cr.No.132/95 the complainant Tmt.Sumathy had not named the petitioner, but had filed a complaint only against the Police Constable Thiru Selvam. (iv) That the respondent while recording a finding of guilt, the respondent sat on appeal over the decision of the criminal Court. 16. The learned counsel for the petitioner vehemently contended that the impugned finding of the enquiry officer as also the order of punishment cannot be sustained, in view of the Honourable acquittal by the criminal Court on the same set of charges. 17. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another [ (1999)3 SCC 679 ] wherein the Hon'ble Supreme Cour was pleased to lay down as under: "34.) There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand. 35) Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." 18. The contention of the learned counsel for the petitioner is that decision of the Hon'ble Supreme Court is fully applicable to the facts of the present case, as admittedly, case of the prosecution was not accepted by the criminal Court. The allegations in the departmental enquiry was also on the same set of facts rather reading of the charges of misconduct shows that it related to the involvement of the petitioner in a criminal case. 19. The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Supreme Court in G.M.Tank vs. State of Gujarat and others [ (2006)5 SCC 446 ] wherein again the Hon'ble Supreme Court was pleased to lay down as under: "29.) The Judgment in the case of State of A.P. & Ors. Vs. S. Sree Rama Rao (supra), was cited for the purpose that the High Court is not constituted in a proceeding under Art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant, it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. 30.) The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31.) In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." 20. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." 20. The learned counsel for the petitioner by relying on the judgment of the Hon'ble Supreme Court referred to above, vehemently contended that once the petitioner was honourably acquitted in the criminal case, it was not open to the enquiry officer to hold the petitioner guilty of the charges on the same set of evidence. 21. This contention of the learned counsel for the petitioner that it is not possible to record a different finding then the one arrived at by the criminal Court can be accepted, as now, it has been authoritatively laid down by the Hon'ble Supreme Court, that in a criminal case, proof required is proof beyond reasonable doubt, while in domestic enquiry, it is proof on preponderance of probabilities. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in Divisional Controller, Karnataka State Road Transport Corporation vs. M.G.Vittal Rao [ (2012)1 SCC 442 ] and State of Punjab and others vs. Prem Sarup [ (2008)12 SCC 522 ]. 22. However, there is force in the contention of the learned counsel for the petitioner, that when a witnesses examined in the criminal Court is not believed by the learned Judicial Magistrate resulting in honourable acquittal of the petitioner, the same witness cannot be relied upon to hold the petitioner guilty in departmental enquiry on the same set of facts, specially in the case in hand, the enquiry officer had not examined Tmt.Kalpana, who was the main witness of crime to prove the allegation. The complainant examined by the enquiry officer also did not attribute any role to the petitioner in respect of allegation constituting the offence under Sec.354, 304-A I.P.C. The finding recorded by the enquiry officer to hold the petitioner guilty of charges, can be safely said perverse which cannot be sustained in law, in view of the charges against the petitioner, which were based on the involvement of the petitioner in the crime. 23. It may also be noticed that in this case, there was no independent charges of misconduct to hold departmental enquiry rather the allegation levelled against the petitioner were based on the registration of criminal case in Cr.No.132/95 under Sec.354, 304-A I.P.C. 24. 23. It may also be noticed that in this case, there was no independent charges of misconduct to hold departmental enquiry rather the allegation levelled against the petitioner were based on the registration of criminal case in Cr.No.132/95 under Sec.354, 304-A I.P.C. 24. Once the petitioner was acquitted of the charges by the criminal Court, there was hardly any reason to hold the petitioner guilty of the charges, as there was no charge of misconduct except the criminal case. The charges were in the nature of show cause notice normally issued to an employee, who stands convicted by the criminal Court. 25. The second charge against the petitioner also cannot be sustained in law, as F.I.R. was registered, in which the petitioner was not named as one of the accused, though subsequently he was added as co-accused, and tried by the criminal Court where he was honourably acquitted. 26. In view of the peculiar facts and circumstances of this case, the judgment of the Hon'ble Supreme Court in Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another [supra] is fully applicable to the facts and circumstances of this case, therefore, the findings of the enquiry officer as well as the order of punishment cannot be sustained in law. 27. This view also find support from the judgment of this Court in S.Dhanasekaran vs The Commissioner of Police, Madurai City Commissioner, Madurai and another ( 2006 (4) C.T.C. 184 ). 28. For the reasons stated hereinabove, this writ petition is allowed. The impugned order of punishment is set aside. The petitioner shall be entitled to all the consequential benefits arising out of this order. No cost.