IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15343 of 2008 SAVINDRA PRASAD SINGH, son of Sri Jageshwar Singh, resident of Village-Bakarpur, Post Office- Bakarpur, Police Station-Mohiuddin Nagar, District- Samastipur ……….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Director General of Police, Government of Bihar, Patna 3. The Inspector General of Police, Muzaffarpur 4. The Deputy Inspector General of Police, Bettiah 5. The Superintendent of Police, Motihari, East Champaran ……… Respondents ----------- For the Petitioner : Mr Satyabrat Verma, Advocate For the State : Mr Rajesh Kumar Singh, Advocate -------- 3. 01.04.2010 Heard learned Counsel for the petitioner and learned Counsel for the State. The petitioner, a Constable in the Bihar Police, was proceeded with in a departmental proceeding for being an accused in Chhatauni PS Case No. 59 of 2003 under Section 302 of the Penal Code based on confessional statement of two co- accused and had been placed under suspension. After conclusion of the proceedings he has been dismissed from service by order dated 31.12.2004 upheld in appeal and memorial. Learned Counsel for the petitioner argued that no memo of charge was served on the petitioner. He was denied opportunity to file his reply to the allegations much less defend himself in the departmental proceeding which was concluded ex parte. No enquiry report was supplied to him and the disciplinary authority did not issue a second show cause notice for the proposed punishment before the final order. The order of punishment was bad as it took into consideration the 2 involvement of the petitioner in three other criminal cases which was not the subject matter of the charge. The petitioner has been acquitted in all four criminal cases and therefore the dismissal is not justified. Reliance was placed upon (1970) 1 SCC 709 (State of Assam & anr Vs Mahendra Kumar Das & ors.), AIR 1976 SC 1899 (Baradakanta Mishra Vs High Court of Orissa & anr.) (1993) 4 SCC 727 (Managing Director E.C.I.L., Hyderabad & ors. Vs B. Karunakar & ors.) and 2008 (1) PLJR 613 (Kishori Lal Vs. State of Bihar & ors.). Counsel for the State urged that the order of dismissal is well considered and reasoned. The appellate authority and the memorial has properly considered the grounds but has found him unfit to be retained in police service. The petitioner in his supplementary affidavit acknowledges that notice of the departmental proceeding was sent to him at his permanent address. Acknowledging awareness of the departmental proceeding, there is no explanation by him why he did not participate. The order of the disciplinary authority records that notices were sent to him both at his home address and the Police Lines at Motihari, notwithstanding which neither did the petitioner appear in the departmental proceeding or file his defence much less appear on any date. The Court is satisfied that procedurally the respondents made every reasonable effort for issuance of notice with adequate opportunity to the petitioner for defending himself. If he stubbornly refused to participate, it is for him to answer his own 3 conduct. He cannot be permitted to cry foul and assail the proceedings to take advantage of his own wrong conduct. The non supply of the enquiry report and an opportunity to show cause by a second notice are matters of procedure and natural justice to ensure that the delinquent is not prejudiced in any manner by lack of adequate opportunity to defend himself.. Therefore in such cases the Court also permits the petitioner to demonstrate before it the prejudice that has been caused to him by denial of such opportunity. If on consideration of the matter, the Court comes to the conclusion that in the final analysis even if such opportunity had been granted, no different conclusion could be arrived at than that already taken, applying the principles of „no prejudice‟ and the „useless formality theory‟, the Court declines interference on these technical grounds. The impugned order undoubtedly does not mention that the enquiry report was supplied and a second show cause notice given. If the Court finds to the contrary of prejudice caused, the proceedings are relegated to the stage of irregularity for correction from that stage. In the case of B. Karunakar (Supra) relied upon by the petitioner the Supreme Court has observed at Paragraph 31 as follows:- “Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of 4 the report. If after hearing the parties, the Court., Tribunal comes to the conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” 5 The petitioner does not deny the fact that he is an accused in Ramgarhwa PS Case No. 75 of 2002 under Section 392 IPC, Chitauni PS Case No. 59 of 2003 under Section 302 IPC, Chitauni PS Case No. 61 of 2004 under Section 364/392 IPC and Kesharia PS Case No. 78 of 2006 under Section 364 IPC. He further does not deny that in pursuance of Ramgarhwa PS Case No. 75 of 2002 a departmental proceeding was conducted and he was punished by reversion to a basic scale of pay of Constable for five years. In Ramgarhwa PS Case No. 75 of 2002 he did not even face trial as final form was submitted. The judgments in the other three criminal cases have been brought on record by the petitioner. The Court has gone through them. Suffice it to say that they cannot be called orders of honourable acquittal. Even if the petitioner were to contend that they were honourable acquittals with an assertion of false implication by the Superintendent of Police due to his status as an office bearer of the District Police Association that shall make no difference. False implication in one case may be a possibility but when it becomes a question of four cases it goes beyond mere coincidence. In any event the allegation of malafide is but a week whisper in the writ petition without supporting materials and details of the method, manner and incidences of alleged repeated harassment by successive Superintendent‟s of Police from 2002 to 2006 over which period the four criminal cases figured. No Superintendent of Police has been impleaded by name. Malafides are easily alleged and cannot be given more 6 weightage than that they deserve in the nature of the materials furnished by the petitioner. Once the petitioner is unable to deny his involvement in four criminal cases, the question becomes of the disciplinary aspect to be decided by the Administrator of the desirability of keeping such a person in a uniformed disciplined force. A criminal trial and departmental proceedings stand on different footing. It is only when the charges and evidence in the two are same that acquittal in a criminal trial may have relevance or impact on the disciplinary proceeding. But, when the charges are different, the evidence is different, the acquittal in the criminal case even honourable cannot ipso facto have compelling effect in the departmental proceedings. The standard of proof and purpose of the two proceedings are entirely different. The employer cannot be denied the right to consider the continuance in service as a disciplinary measure of one who repeatedly involves himself in criminal prosecution. The object of a criminal trial is to punish the offender. In a departmental proceeding the objective consideration is the desirability of retaining in service a person whose conduct is unbecoming of an employee. This distinction has been explained by the Supreme Court at Paragraph 11 in (2005) 7 SCC 764 (Ajit Kumar Nag Vs General Manager (PJ), Indian Oil Corporation Limited, Haldia & ors.) as follows:- “11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is 7 otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings - criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.” The Court therefore holds that the petitioner has not been prejudiced in any manner in presenting his defence by reason of non supply of the enquiry report and the absence of a second show cause notice. Even if that were to be done, the final conclusion would still remain the same. The disciplinary authority, the appellate order and the memorial are considered and reasoned opining that it was not in the interest of administrative discipline in a uniformed police force to allow a person with criminal leanings to continue in service as the criminal trial and the departmental proceedings were different issues with different purposes. 8 Once the petitioner is unable to deny the factum of his involvement in four criminal cases, the fact that the chargesheet does not mention so with regard to the other three cases or that no second show cause notice was given stands fully answered by the order of the Apex Court in (2009) 13 SCC 102 (Union of India & ors. Vs. Bishamber Das Dogra.). The respondent was proceeded departmentally for unauthorised absence on more than one occasion. The High Court set aside the order of removal on the ground of violation of the principles of natural justice since while passing the punishment order the disciplinary authority also took into consideration the past conduct of the respondents in being a habitual absentee. The Court held at Paragraph 30 and 34 as follows:- “30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment but in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require. 34. The respondent was a Guard in CISF. No attempt had ever been made at any stage by the respondent employee to explain as to what prejudice has been caused to him by non furnishing of the enquiry report. Nor had he ever submitted that such a course has resulted in failure of justice. More so, the respondent employee had never denied at any stage that he had not been punished three times before initiation of the disciplinary proceedings and deserted the Line twice even after issuance of the show cause notice in the instant case....” 9 In (2007) 8 SCC 656 (Government of A.P. & ors. Vs. Mohd. Taher Ali), the Supreme Court held that the Police Force was a disciplined force. There could be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the chargesheet it cannot be taken into consideration by the punishing authority. Such consideration is often only to re- enforce the opinion of the authority. The case of Bardakanta Mishra (Supra) has no application to the facts of the present case. It dealt with the question of an original order without jurisdiction which was held to be impossible of ratification by the competent authority subsequently. In the present case the order of dismissal dated 31.12.2004 was not by an authority incompetent but on the contrary having full jurisdiction to do so. The case of Kishori Lal (Supra) is clearly distinguishable on facts as noticed in Paragraph 11 of the judgment of grave procedural irregularities in conduct of the departmental proceeding. It was not a case where termination was passed on grounds of undesirability to be retained in service on account of involvement in criminal prosecution. The case of Mahendra Kumar Das (Supra) on facts has no application to the present case when the appeal of the State also came to be allowed. The distinction between a person in the civilian service and one in the uniformed police service where discipline is the hallmark has to be maintained. The yardstick for the two service shall have to be different. The petitioner by his own m conduct 10 has tainted his uniform which assumed the nature of a garb for more serious activities unacceptable to a disciplined force. This Court therefore finds no merit in this writ application. It is accordingly dismissed. Snkumar/- (Navin Sinha,J.)