IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.835 of 1996 Ram Chhabila Singh, son of late Shiv Prasad Singh, resident of Village Nawadah, P.O. Belwai, P.S. Karakat, District Rohtas. ---------- Petitioner Versus 1. State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Director General-cum-Inspector General of Police, Patna. 3. The Inspector General of Police, Bihar, Patna. 4. The Deputy Inspector General (Rail), Patna. 5. The Superintendent of Police (Rail), Muzaffarpur. 6. The Superintendent of Police (Rail), Sonepur. 7. The Police Inspector (Rail), Sonepur. 8. The Officer Incharge G.R.P., Chapra. -------- Respondents ----------- For the Petitioner :- Mr. Abhai Kumar Singh, Adv. Mr. Mithilesh Kumar Singh, Adv. For the State :- Mr. Lalit Kishore, AAG-I ----------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA ---------- O R D E R (04.07.2011) Mihir Kumar Jha, J. Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) For issuance of a writ in the nature of certiorari for setting aside the order dated 22.1.92 passed by the respondent S.R.P. (Rail), Muzaffarpur by which he discharged the petitioner from service. 2 (ii) For issuance of a writ in the nature of certiorari for setting aside the order dated 24.6.93 passed by the respondent D.I.G. (Rail) Patna by which appeal petition of the petitioner has been rejected. (iii) For issuance of a writ for setting aside the order dated 23rd November, 1995 vide Memo No. 4752 passed by the respondent-Director General- cum-Inspector General of Police, Patna by which a representation filed by the petitioner in view of direction of this Hon‟ble Court in C.W.J.C. No. 3356/95 dated 23.8.95 has been rejected. (iv) For issuance of a writ directing the respondent to reinstate the petitioner in service in view of the order of this Hon‟ble Court as well as circular of the State of Bihar dated 23rd August, 1963 and to grant all consequential benefits.” Learned counsel for the petitioner, in support of the aforementioned prayer, would submit that since the charges, against the petitioner in the departmental proceeding and in the criminal case, were based on the same allegation and the petitioner was ultimately acquitted of the charge by the competent court, the respondents ought to have reviewed the order of punishment of dismissal from 3 service in the light of the Government circular dated 23rd August, 1963. He has further submitted that in the departmental proceeding, which was being conducted during pendency of the criminal case, the petitioner was not even allowed to cross-examine the departmental witnesses and as such, the whole enquiry was vitiated particularly when the person subjected to assault by the petitioner was not examined in course of the departmental proceeding and had also denied the allegation against the petitioner when he was examined in course of criminal trial. He has further submitted that in any event after acquittal of the petitioner in the criminal case, the main charge of the petitioner of assaulting a member of the public in the compartment of a train would automatically fall into pieces leaving the petitioner only guilty for his being unauthorized absent from duty from 20.7.1989, which on its own could not have led to the most severe punishment of dismissal from service. Learned counsel for the petitioner, in this respect, has also submitted that all 4 these aspects particularly the fatal lapses in course of departmental proceeding could have been examined if the respondents had produced the records of the departmental proceeding but, as the same has not been produced despite the order of this Court dated 5.10.2010, adverse inference should be drawn against the State in terms of Section 114(g) of the Evidence Act. Per contra, learned counsel for the State, in support of the plea taken in counter affidavit already filed in this case, has submitted that once the departmental proceeding was conducted and the petitioner had participated, he cannot be allowed to now assail the findings in the departmental proceeding on account of pendency of a criminal case. He has further submitted that in course of departmental proceeding, oral and documentary evidence were led and both the charges against the petitioner were conclusively proved, whereafter, he was given a notice by way of an opportunity of hearing by the disciplinary authority to file his show-cause reply and the order of punishment 5 was passed on 22.1.1992 in the light of the materials on record including the findings arrived at by the enquiry officer. He has also submitted that the plea of the petitioner that he was not afforded any opportunity to cross-examine the witnesses in the departmental proceeding was an afterthought and in fact was never raised by him before the appellate authority and, therefore, when the records of the departmental proceeding, directed to be produced by this Court, after more than twenty years of the concluding of the departmental proceeding were either lost/destroyed in the department, the same cannot go in favour of the petitioner because the charges against the petitioner were found to be proved in course of enquiry. He has further commented that the Government circular dated 23.8.1963 does not contemplate setting aside of an earlier order of punishment in a departmental proceeding merely because of acquittal by the criminal court. He has clarified that out of the two charges, one of them was only subject matter 6 of the criminal proceeding whereas the other charge of the petitioner being unauthorized absent from duty from 20.7.1989 was altogether different and was also conclusively proved against the petitioner. In the considered opinion of this Court, there would be no difficulty in holding that the petitioner, having participated in the departmental proceeding at a point of time when his criminal case was still pending, could not have raised the question of jurisdiction of the departmental authorities as with regard to either continue with or concluding the departmental proceeding. In fact, law also in the subject is quite consistent right from the first judgment in the case of Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan reported in AIR 1960 SC 806 wherein it was held as follows:- “(3) It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.------“ 7 The aforesaid view has been reiterated by the Apex Court in the case of Jang Bahadur singh Vs. Baij Nath Tiwari reported in AIR 1969(SC)30 as also in the case of M Paul Anthony vs. Bharat Gold Mines Ltd, reported in (1999) 3 SCC 679. Thus, the continuance of departmental proceeding during pendency of the criminal case by itself cannot be fatal for the impugned order of punishment of dismissal of service. As a matter of fact, the charges against the petitioner were also not the same as in the criminal case, inasmuch as, one of the two charges as with regard to the petitioner being unauthorized absent from duty from 20.7.1989, ever since he was made accused in the criminal case was a separate charge. The charges against the petitioner in fact reads as follows:- ^^goynkj] jkeNohyk flag ds fo:) lafnX/k vkpj.k] vuq'kkughurk ?kksj dnkpkj vPNs iqfyldehZ ugha gksus dk vkjksi yxk;k tkrk gS fd%& ;s fnukad 19-7-89 dks Mkmu ehVjxst dek.M la0 429995 rFkk LVs'ku Myojh ua0 289 frfFk 18-7-89 ds vkyksd esa esy V~su esa vius pkj vkjf{k;ksa ds lkFk LdksVZ ikVhZ esa izfrfu;qDr FksA bUgksaus vius vU; lkfFk;ksa dks ,d vU; cksxh esa NksM+dj nqljs cksxh esa Nijk dpgjh esa p<+ x;s vkSj bUgksaus yyu izlkn lkfdu e<+ksjk rFkk ozt Hkw"k.k flag lk0 e<+kSjk dks ekjhihV dj vukf/kd`r :i ls fVdV psfdax fd;k vkSj 8 nq"dehZ crkdj mlds ikl ls :I;k ys fy;kA ;g rF; Jh yyu izlkn }kjk fn;s x;s QnZO;ku rFkk jsy Fkkuk izHkkjh] Nijk ds izfrosnu ls iq"Vh gksrk gSA bl rjg ds vijkf/kd fdz;kdyki ds QyLo:i Nijk jsy Fkkuk dkaM la0 32 fnukad 20-7-89 /kkjk 341@323@379 Hkk0n0fo0 vUrxZr buds fo:) lR; ik;k x;kA 2- ;s fcuk lwpuk ds vius dk;ZLFky ls fQnkj gSA 3- bUgksaus iqfyl dh Nfo dks /kwfey fd;k gSA** It would thus be seen that the petitioner a police personnel had been facing charge of serious misconduct as with regard to misbehavior with the members of the public in course of his official duty. In fact after he became an accused in a criminal case for the aforesaid offence on account of institution of a case bearing Chhapra (Rail) P.S. Case No. 32 of 1989 dated 20.7.1989 for offence under Section 341, 323 & 379 of the Indian Penal Code, he became also traceless and absent from duty without obtaining any permission from the competent authority. The absence of a police personnel from duty by itself is a serious misconduct and even when the petitioner was afforded a reasonable opportunity in course of enquiry, he did not bring those materials which he now has placed before this Court for the first time to support his defence that he was ill or was 9 not in a position to report on duty. In this respect, this Court can do no better but to extract the following passage of the enquiry report:- ^^lapkyu ds dze esa vkjksfir us fdlh Hkh xokg dk ftjg ugha fd;kA ckj&ckj ekSdk nsus ij os Vky&eVksy dh uhfr viukrs jgsA bUgksaus ,d vkosnu&i= Hkh fn;k fd tc rd buds fo:) dkaM dk fu"iknu ugha gks tkrk gS rc rd bl foHkkxh; dk;Zokgh dks yfEcr j[kk tk;s] ftls jn~n fd;k x;kA vkjksfir ls fnukad & 10-4-90 rd muls vafre fyf[kr lQkbZ lefiZr djus dks dgk x;kA ijUrq mls Hkh mUgksaus lefiZr ugha fd;kA** which would be itself good enough to show that the document now being referred by way of Annexure-4, 4/1, 4/2, 4/3 & 4/4, being the medical certificates issued by the Civil Surgeon cum Chief Medical Officer as with regard to the petitioner being treated in the out door (OPD) suffering from gastroenteritis, was a subsequent plea of defence, which was never brought to the notice of enquiry officer. These documents, Annexure-4 series, therefore, cannot be taken into consideration by this Court at this stage when they were never sought to be brought to the notice by the petitioner before the enquiry officer. As a matter of fact, when the 10 petitioner had not even denied the charges by filing his written statement of defence as is clearly recorded by the enquiry officer, there would be no option but, to hold that the petitioner despite being given opportunity to participate in the departmental enquiry had himself refused to avail the same to his own peril. The plea of the petitioner that the enquiry officer had not allowed him to cross- examine the witnesses produced by the department in support of the charges could have made some impact on this Court, had such a plea been immediately raised by the petitioner in the memo of appeal filed by him against the order of punishment dated 22.1.1992. It can be, however, found from the detailed appellate order rejecting the appeal of the petitioner that the appellate authority had noted all the contentions raised in the memo of appeal which reads as follows:- ^^2- mDr ltk ds foz:) vkjksfir ,oa lsokP;qr goynkj us vihy vH;kosnu nk;j dh gS vkSj fuEufyf[kr vk/kkj ij nh x;h ltk dks fujLr djus dh nyhy nh gS%& ¼d½ oknh yyu izlkn ls u budks ekj&ihV gqbZ vkSj u mUgksaus mudk iSlk Nhuk vkSj u olqyk fd oknh bUgsa igpku ugha ldrsA 11 ¼[k½ lapkyu inkf/kdkjh us ^^fg;j ls** ds lk{; ds vk/kkj ij vH;kosnd ds fo:) earO; fn;k gSA ¼x½ foHkkxh; dk;Zokgh dk vkjksi Nijk jsy Fkkuk dkaM la[;k& 32@89 fnukad& 20-7-89 /kkjk& 341@323@378 Hkk0n0fo0 ls lacaf/kr gS tks U;k;ky; esa fopkj.k gsrq yafcr gSA vr% U;k;ky; ds fu.kZ; ls iwoZ foHkkxh; dk;Zokgh esa dksbZ fu.kZ; ugha fy;k tk ldrk D;ksafd nksuks ds vkjksi ,d gh gSA vr% U;k;ky; ds QSlys rd foHkkxh; dk;Zokgh yafcr j[kus dh nyhy nh x;h gSA** Thus, in the memo of appeal also, no such plea of the petitioner being denied of opportunity to cross-examine the witnesses was raised and, therefore, now after 22 years of the proceedings, if the respondents have not been able to produce the records of the proceedings to substantiate the specific findings of the enquiry officer as with regard to the petitioner himself not availing the opportunity of cross-examining the witnesses, the same cannot go in favour of the petitioner. This Court, therefore, will find no merit in that part of the submission of the learned counsel for the petitioner that there was a fatal infirmity on account of the petitioner not being allowed to cross- examine the witnesses, inasmuch as, the plea was never raised by him either before the disciplinary authority or before the 12 appellate authority. This Court, therefore, is of the opinion that the departmental proceeding was conducted in a free and fair manner and the petitioner was given a reasonable opportunity to defend himself but, he himself did not avail such an opportunity. The effect of acquittal of the petitioner in the criminal case had to be considered by the authority in terms of the order of this Court before whom his memorial was pending, inasmuch as, the departmental appeal had already been dismissed on 22.6.1993 and the petitioner’s writ application CWJC No. 3356 of 1995 was also disposed of by an order dated 23.8.1995 by directing the Director General of Police to pass a reasoned order after taking into account the effect of acquittal of the petitioner in the criminal case. The petitioner’s representation to the Director General of Police, which was filed after the order of this Court dated 23.8.1995, in fact would itself go to show that there also the petitioner did not raise the question of 13 prejudice on account of the alleged non- affording of opportunity of cross-examining the witnesses and as such the belated plea of denial of opportunity of cross examination cannot become a panacea for setting aside the order of punishment. Reference in this connection may be made to the judgment of Apex Court in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma reported in AIR 1996 SC 1669, wherein, the prejudice theory on account of some procedural information including denial of opportunity to cross examine was explained in the following words:- “32. We may summaries the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary /departmental enquiry in violation of the rules/ regulations /statutory provisions governing such enquiries should not be set aside automatically. The Court 14 or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under „no notice‟, „no opportunity‟ and „no hearing‟ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found 15 that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has 16 received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directly and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said 17 requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/ employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B.Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/ regulations/ statutory provisions and the only obligation is to observe the principles of natural justice – or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action – the Court or the Tribunal should make a distinction between a total violation of natural justice 18 (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/”no hearing” and “no fair hearing.” (a) In the case of former, the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi lateram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No.5) does not apply in the case of rule 19 against bias, the test in which behalf are laid down elsewhere.). (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/ Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.” As a matter of fact, the petitioner in his representation before the D.G. Police had confined his case only on the merits of the findings of acquittal of criminal court for being exonerated in the departmental proceeding. The Director General of Police in 20 the impugned order dated 23.11.1995 (Annexure-11) had accordingly held that not only in the criminal case the petitioner had been given benefit of doubt on account of non-production of the available witnesses but, in fact one of the witnesses had also turned hostile whereas in the departmental proceeding which was conducted much earlier and in fact soon after the alleged occurrence, all the whiteness had fully supported the charge of extracting illegal money by harassing the passengers in the Railway compartment. In the considered opinion of this Court, such an approach of the Director General cannot be held to be faulted in law, inasmuch as, the alleged occurrence had taken place on 19.7.1989 and the enquiry report was submitted in the month of May, 1990 after examining seven out of eight witnesses, who were cited witnesses in the departmental proceeding and in the criminal case. Admittedly, such incident had taken place in the presence of the police personnel and, therefore, the police personnel were the best 21 witnesses to the occurrence. Such evidence recorded in course of departmental proceeding and elaborately dealt in the enquiry report by itself was sufficient to establish the charge against the petitioner of snatching money from the passengers after subjecting them to assault. This sort of conduct of a police personnel on duty in a train was definitely a serious charge and the fact that the petitioner, having been subjected to a criminal proceeding for the said charge, had also absconded from that very date of institution of the criminal case would only add his complicity in his alleged involvement in the incident, in question, unbecoming of a police personnel on duty. In that view of the matter, the findings arrived by the Director General of Police in the impugned order that the petitioner’s absence from duty from the date of institution of the criminal case by itself was a serious charge good enough for his being subjected to the order of punishment, cannot be interfered by this Court, on the ground of its being disproportionate. It is 22 not a case of simple absence from duty. Here the petitioner was first found to be indulging in a most indecent act of assaulting common passengers in the train as also snatching money from them and when subjected to a criminal prosecution, he had absconded from duty. Discipline, devotion to duty, honesty and integrity is an essential requirement of any public service but it has to be highest order in the case of police personnel. Judged from this view, this Court does not find the punishment of dismissal from service of the