IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4387 of 2004 AMRESH KUMAR S/O INDRADEO PRASAD SINGH OF VILLAGE-ABHAIPUR MASUDAN PS- PIRIBAJAR ABHAI -PUR, DISTT- LAKHISARAI-----------PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2. THE DIRECTOR GENERAL CUM I.G. OF POLICE, BIHAR,PATNA 3. THE ZONAL I.G. OF POLICE, BHAGALPUR ZONE BHAGALPLUR 4. THE I.G. OF POLICE BHAGALPUR RANGE,BHAGALPUR 5. SUPERINTENDENT OF POLICE, BHAGALPUR 6. THE SUPERINTENENT OF POLICE,MADHUBANI---RESPONDENTS ----------- For the Petitioner: Mr. Y.V. Giri, Sr. Advocate with M/s Sanjeev Kumar & V.K.Singh, Advocates For the State: Mr. Vinod Kumar, AC to SC-1. ----------- 5 1 .10.2010 Petitioner was a constable appointed in the year 1983 but came to be dismissed based on the findings recorded in a departmental proceeding which had to be conducted in certain facts and circumstances which will be dealt with in detail subsequently. After the dismissal, the petitioner filed an appeal which was rejected and so was his memorial before the I.G. The orders therefore under challenge are annexures 4, 6 and 6/1 respectively. The origin of the departmental proceeding was institution of a criminal case against the petitioner which was registered as Barari P.S. Case No. 384 of 1989 dated 25.6.1989 under sections 341, 365, 367, 379, 377, 511/34 of the Indian Penal Code. The allegation in the FIR was that the petitioner was on duty in what is known as Combined Building at Bhagalpur. On the day of incidence he supposed to have gone to Bhagalpur Railway Station and brought one Pintu Kumar Verma along with two of his friends to the combined building. He took them up stairs, snatched - 2 - money and valuables available on Pintu Kumar Verma and also tried to sodomise him. When the matter came to the notice of the superiors they suspended the petitioner and initiated a departmental enquiry on the set of charges contained in annexure- 5. It also emerges from record that the petitioner was arrested, sent to jail and he was even tried by a criminal court but was acquitted in the facts and circumstances based on the material which was placed before learned Additional Sessions Judge, Bhagalpur. Order of trial court is annexure-8 to the writ application. The respondents however proceeded against the petitioner, conducted the enquiry and based on the findings in the enquiry, the order of punishment of dismissal came to be passed by the disciplinary authority, i.e. Superintendent of Police, Bhagalpur. The order of disciplinary authority is annexure-4. As already noted above, the appeal of the petitioner against the order of punishment and the memorial came to be rejected as well. In the writ application one of the primary submissions which is sought to be made by learned Senior counsel on behalf of the petitioner is that when the petitioner was exonerated by the trial court, then he ought not to have been punished for the same set of charges in the departmental enquiry. The petitioner must beget the benefit of acquittal, recorded in his favour, by the criminal court. He also contends that the departmental proceeding was conducted without any show cause and issuance of memo of charge. Some other submissions are that - 3 - there was no sufficiency of evidence to hold the petitioner guilty in the departmental enquiry. Issue also related to non-examination of proper witnesses. Enquiry has also been dubbed to be ex-parte. Stand has also been taken that the institution of the criminal case was a false and fabricated case at the instance of the Officer Incharge of Barari Police station, who was hostile to forward caste. He used to abuse persons on the basis of caste to which the petitioner used to object and this became a bone of contention. Petitioner was wrongly fixed by obtaining application from one Pintu Kumar Verma which ultimately led to institution of the criminal case as well as the departmental enquiry against him. The stand of the State in the counter affidavit is that the punishment imposed upon the petitioner is the outcome of proper enquiry which had been conducted in the circumstance that the conduct of the petitioner and his misdemeanor not only brought a bad name to the department but also created a lot of uproar in the town of Bhagalpur. The acquittal of the petitioner by the trial court was because most of the witnesses had turned hostile when the trial was actually conducted and it seems that the petitioner managed to see that the proper evidence did not come against him in the trial court by the time the trial was held and judgment rendered in the year 2004. It is not unusual for the victims to move on in life and not make an issue of things which transpired more than a decade and half ago. Acquittal by a criminal court does not mean - 4 - that a departmental proceeding could not be conducted or if conducted the delinquent ought to be exonerated. Even otherwise it is evident that the departmental enquiry came to an end much earlier to the acquittal by the trial court. Punishment order has been passed on the evidence which came in the departmental enquiry. The evidences are there which duly support the incidence and in that circumstance the conduct of the petitioner was required to be dealt with firmly and the department could not take a lenient view on the subsequent development of exoneration of the petitioner by a criminal court. The Court has gone through the material and the evidence which came during the course of enquiry and the fact that he chose not to defend or cooperate, a circumstance which will not accrue in favour of the petitioner because he cannot be allowed to take advantage of his own conduct after the proceeding had concluded and the order of punishment passed. There was occasion for him to raise the so called issues during the course of enquiry itself. There is evidence to show that the petitioner chose not to cross-examine the witnesses. He has been evasive about his defence and there is sufficient evidence that the charge levelled against him was not a false or motivated one. No major infirmity in the proceeding has emerged. The plea is more made then made out. In the opinion of the Court the charges and the findings are rather serious and this Court has difficulty in - 5 - extending any kind of indulgence in the matter, more so when it is a case involving a constable whose duty was to protect the citizens and not to exploit them. Submissions of the petitioner are not based on any material. Principles urged at the bar have to be applied in the given set of facts. They cannot be dealt with in abstract. Acquittal of the petitioner by the criminal court is another issue but finding of guilt in a departmental enquiry and conduct thereof is yet another issue. If there is sufficiency of material in the departmental enquiry the petitioner cannot be exonerated on the ground of acquittal by a criminal court. This writ application has not merit and it is dismissed. RPS (Ajay Kumar Tripathi, J.)