CIVIL WRIT JURISDICTION CASE No. 4146 OF 1998 RAM CHANDRA PRASAD YADAV @ RAM CHANDRA YADAV, S/o Late Deodhari Prasad Yadav, R/o Garhi Bishanpur, P.O.- Kiul Dharamsala, P.S.- Lakhisarai (Munger) District- Lakhisarai (Munger) …….. (Appellant) Versus 01. The State of Bihar through the Chief Secretary, Government of Bihar Patna 02. The Director General-cum- Inspector General of Police, Old Secretariate, Bihar, Patna 03. The A.I.G. of Police (Welfare), Bihar, Patna 04. The I.G. of Police, Bhagalpur Zone, Bhagalpur 05. The D.I.G. of Police, Eastern Range, Bhagalpur 06. The Superintendent of Police, Bhagalpur ------- Respondents) ----------- For The Petitioner :- Mr. Sunil Kumar Verma & Mr. Suman Kumar Verma For The Respondents :- (AAG1) P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA Navin Sinha, J. Heard learned counsel for the petitioner and learned counsel for the State. Counter affidavit has been filed on behalf of the State which has also been perused. The petitioner was posted as a Constable in the Bihar Police at Bihpur in the District of Bhagalpur at the relevant point of time. On 13.5.1986 he was traveling from Bihpur to Sonhola in a public transport bus. A surprise check was made by one Rama Nand Sharma, a Bihar Police 2 Jamadar in the Tarar Sivir. A country made Pistol and four live cartridges were recovered from him leading to the institution of Sonhola P.S. Case No. 44 (5) of 1986, under Sections 25a and 26 of the Arms Act. He was taken into custody the same day and remained as such till he was granted bail on 14.7.1986, under Section 167 Cr.P.C. Orders for his suspension were passed on 26.9.1986 with effect from 13.5.1986 with headquarters in Bhagalpur itself. A memo. of charge was served upon him for a departmental proceedings on 1.11.1986. Three charges were framed. Charge no.1 was that on the date of occurrence the bus was checked by one Rama Nand Sharma, who recovered a country made pistol and four live cartridges from the petitioner, who was taken into custody and remained as such till bail. Charge no.2 stated that he continued to receive salary for the period of custody also, as if he was on duty in the Bihpur Police Station. He did not give any intimation to the authority of his custody or his release from custody. Lastly, that he was a person unfit to be retained in Police service based on his conduct. Sonhola P.S. Case No. 44 (5) of 1986 registered as G.R. No. 995 of 1986 came to be 3 disposed by the Judicial Magistrate, Ist Class, Bhagalpur on 4.2.1991, acquitting the petitioner. The judgment of the criminal court shall be considered at the appropriate stage of this order. After his acquittal the suspension was revoked on 14.5.1991. The order of revocation has not been brought on record. The departmental proceedings culminated in an enquiry report on 31.1.1992 indicting him on all the charges. The petitioner filed a preliminary reply dated 5.5.1991 and 25.9.1991 to the memo. of charges. Both these replies have not been brought on record. The counter affidavit states that a second show cause notice was given thereafter. There is no averment to the contrary in the writ petition. The final order of punishment dated 3.10.1997, dismissing him from service came to be passed by the Superintendent of Police, Bhagalpur. The petitioner preferred an appeal. The appeal has been dismissed by the D.I.G. Police on 11.8.2001. In the departmental proceeding the charges were proved by three prosecution witnesses. Shiv Pujan Yadav, Officer-in-charge of the Sonhola P.S. was P.W.-1, Jamadar, Rama Nand 4 Sharma, P.W.-2 and Reserve Sub-Inspector, Rajendra Prasad Singh was P.W.-3, who proved the charges. The petitioner examined two defence witnesses i.e. Home Guards, Ram Briksh Paswan and Megho Mandal, who denied any recovery from the petitioner in their presence, but stated that they had heard of recovery from somebody in the bus. Learned counsel for the petitioner submitted that the allegations had been made mala fide at the behest of P.W.1, Shiv Pujan Yadav, who had a person axe to grind with the petitioner. The petitioner was not paid his subsistence allowance from September, 1986 to March 1991. Relying upon the judgments reported in 1973 (1) SCC 656 (GHANSHYAM DAS SHRIVASTAVA VERSUS STATE OF MADHYA PRADESH), 1986 (3) SCC 131 (FAKIRBHAI FULABHAI SOLANKI VERSUS PRESIDING OFFICER AND ANOTER), A.I.R. 1985 SC 1416 (UNION OF INDIA & TULSIRAM PATEL) AND A.I.R. 1968 PATNA 300 (BANTA SINGH VERSUS NATIONAL COAL DEVELOPMENT CORPORATION & ANOTHER), it was urged that the entire departmental proceeding was vitiated for reasons of non-payment of the subsistence 5 allowance, prejudicing the petitioner in preparation of his defence. During the departmental proceedings he was not allowed to examine prosecution witnesses and P.W.1 was examined behind his back. Documents and exhibits were not supplied to him. There was no charge for unauthorized travel from Bihpur to Sonhola and, therefore, the finding that he was unauthorizedly absent cannot be upheld. As he was not aware of the order of suspension dated 26.9.1986 he bona fide resumed duty after release from custody on 14.7.1986 as there was no impediment in his resuming duties. There was no obligation cast on him in law to make disclosure about his custody and subsequent release on bail. The onus was on the authorities to suspend him and to bar from duty, if he has taken into custody. It was lastly submitted that the appellate order was bad, as it was non-speaking in nature and did not reflect consideration of the grounds urged in the memo. of appeal. Placing reliance on the judgment of the criminal court, it was urged that the charge in the criminal trial and the departmental proceedings were the same. The acquittal in the criminal trial vitiates the punishment in the departmental proceeding. 6 Counsel for the State took the plea of an alternative remedy of Memorial available to the petitioner under the Police Manual. The law stands settled, that once the writ petition has been admitted for hearing as far as back on 14.9.1999, the question of dismissing it at the time of final hearing on the ground of availability of an alternative remedy simply does not arise. Any preliminary objection of an alternative remedy, is to be taken at the very first instance. This Court has gone through the counter affidavit. No such objection has been taken. The objection being frivolous in nature is, therefore, rejected. Alleging mala fides against Sub-Inspector, Shiv Pujan Yadav, it has been contended in the pleadings and the memo. of appeal that the latter disapproved of the marriage between his daughter and the nephew of the petitioner and had, therefore, threatened to teach the petitioner a lesson. Allegations of mala fide are easily made but are as difficult to prove. To establish an allegation of mala fide something more is required than a mere statement that allegedly a threat had been held out at some point of time to teach a lesson. There has to be necessary material of some conduct indicative of 7 the scheming mind of the person against whom mala fide is alleged. Some specific instance or occurrence has to be mentioned. It is not the case of the petitioner that the marriage between his nephew and the daughter of Shiv Pujan Yadav, has been dissolved, consequent to Shiv Pujan Yadav, not approving of the matrimonial relationship. This Court, therefore, finds it difficult to accept the pleadings of mala fide which appears to be vague and only a formal defence. The petitioner has not brought on record his preliminary and final reply submitted to the charge-sheet. There is no pleading in the writ application or in the memo. of appeal that any objection was taken by the petitioner before the Enquiry Officer of his handicap to defend himself in the departmental proceedings as a consequent of non-payment of the subsistence allowance thereby prejudicing him. Learned counsel has fairly acknowledged that the headquarters of the petitioner was in Bhagalpur itself during the period of suspension. Therefore, the petitioner was not required to travel great distance to contest the departmental proceedings at considerable expense. In any event of the matter he was released from 8 custody on 14.7.1986 and collected his arrears of salary for the period of custody from 13.5.1986 also. The law with regard to non-payment of subsistence allowance vitiating a departmental proceeding stipulates that prejudice has to be shown by reason of non-payment of the subsistence allowance. The sine qua non shall be the raising of an objection during the pendency of the proceedings itself. This Court has already noticed that there is no such material on record. The case of GHANSHYAM DAS SHRIVASTAVA (supra) relied upon by the petitioner is clearly distinguishable on its facts, as in that case, objection of prejudice caused in defending the departmental proceedings for reasons of non- payment of subsistence allowance was raised during the departmental proceeding itself in writing before the Enquiry Officer itself. In the case of FAKIRBHAI FULABHAI SOLANKI (supra) relied upon by the petitioner, the proceedings were before the Labour Court under Section 33 of the Industrial Disputes Act, when at the first instance before the Labour Court the defence had been taken in similar terms that without payment of the subsistence allowance he was unable to meet the expenses before the Tribunal. Learned counsel submits that it is evident 9 from Annexure-3 series that the authorities had directed payment of his subsistence allowance on his application. The right to receive subsistence allowance is one aspect and the prejudice caused in the departmental proceedings for not having been paid the same is another aspect. The petitioner has not brought any material on record in support of his defence. The onus lay on him. This burden cannot be cast on the respondents. In 2008 (2) SCC page 55 (STATE GOVERNMENT OF MADHYA PRADESH AND OTHERS VERSUS SHANKARLAL) it has been reiterated that the prejudice caused by non- payment of the subsistence allowance has to be demonstrated. In a departmental proceeding, a delinquent does not have the right to receive any document and exhibit. It is only documents and exhibits relevant to the charge that can be demanded by him. Only if the prosecution proposes to rely on any material outside the memo. of documents and exhibits, annexed to the charge, that the question of supply of the same to the delinquent arises. The delinquent may ask for a document. The authorities are not precluded from considering the request and refusing to supply the same by a reasoned order on the 10 ground that it was not relevant to the enquiry. Therefore, the demand for documents and exhibits has to be specific. There can be no general demand. The memo. of charge dated 1.11.1986 contains the memo. of evidence by way of documents and witnesses. No averment has been made in the memo. of appeal, that the memo. of charge was not accompanied by these enclosures on basis of which the charges were proposed to be proved. This Court, therefore, finds it difficult to uphold the objection of the petitioner, that the departmental proceedings was vitiated on account of non-supply of documents and exhibits to him speaking generally. The charge against the petitioner related to the recovery of unauthorized arms from him with live cartridges and that he collected the salary after release for the period that he was in custody, all of which satisfied the authority that his conduct was unbecoming of a Police Officer, to be retained in service. There is no denial by the petitioner that he was not travelling in the bus on that date. That the disciplinary authority may have mentioned that he was travelling in an unauthorized manner is not relevant. The recovery from his person of the firearm and cartridges has been proved by P.W.2, who 11 deposed that he did not know the identity of the person from whom the seizure was made till the petitioner revealed his identity as a Constable bearing No. 739. The witness proved that recovery had taken place from the public bus bearing registration no. BRJ-1686 at the Jai Khut crossing interception. The two defence witnesses in fact tacitly supported the charge to the extent that on that date and at that time and at that location from that very bus a country made weapon and live cartridges had recovered. In pursuance of the institution of the criminal case a seizure list was also prepared and the weapon seized as an exhibit. The petitioner belonging to the Police force, those who were prosecuting him also belonged to the police force. Despite allegations of recovery of weapon from him leading to a charge sheet and preparation of seizure-list, the weapon being marked as an exhibit, he was granted the privilege of a compulsive bail under Section 167 Cr.P.C. The Police did not produce the weapon during trial which was in its custody. The seizure-list was however not in dispute. The Investigating Officer did not appear to depose, when the two defence witnesses in the criminal trial and who were defence 12 witnesses in the departmental proceeding also, stated that they were told that there was recovery of weapon from inside the bus. The recovery of the weapon from inside the bus on that date, time and place stands corroborated even by the defence witnesses, the petitioner not denying that he was traveling in the bus. The manner in which the criminal trial has been conducted appears more at aiding the accused rather than the Police authorities performing their own duties for upholding the law. The defence taken in the memo. of appeal that P.W.1 and P.W.2 were examined behind his back does not impress the Court in the nature of the charge and the stand taken by the petitioner as he could not be said to have prejudiced in any manner. His presence in the bus recovery of firearms and cartridges from inside the bus, the taking of salary for the period custody and facing a criminal prosecution all not being in controversy. If evidence has been taken behind his back as he alleges it was for him to demonstrate that this objection was taken by him before the Enquiry Officer or in his reply to the second show cause notice. An unsubstantiated delayed ground taken in the memo. of appeal without demonstrating any 13 prejudice having been caused shall not vitiate the departmental proceeding. In 2008 (5) SCC 569 (CHAIRMAN & MANAGING DIRECTOR, V.S.P. AND OTHERS VERSUS GOPARAJU SRI PRABHAKARA HARI BABU) It has been held at paragraph 16 of the judgment that when the charges are admitted a presumption arises under Section 58 of the Evidence Act and there was no need to prove the same specifically which reads as follows:- “16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.” The petitioner has not denied his presence in the bus in question on that date and time or that P.W.2 had frisked him leading to recovery. He has admitted that he took his salary for the period of custody without informing the authorities of the criminal case, custody and release on bail. A criminal trial and a departmental 14 proceeding stand on different footing. The object of a criminal trial is to punish the offender to maintain harmony and discipline in a civilized society. The object of a disciplinary proceeding is to enforce discipline in service by appropriate punishment so as to maintain discipline in the service based upon relationship between the employer and employee. The standard of proof in a criminal case and in a departmental proceeding are fundamentally different. In a criminal case, the allegation has to be proved beyond all reasonable doubt. In a departmental proceeding, the findings are based on a preponderance of probability. An acquittal in a criminal case does not automatically demand exoneration in the departmental proceeding the purpose of the two being different, standard of proof being different. If the charges are identical on all scores, the issue may be different. In the present case, the charges in the criminal trial and the departmental proceedings are not the same. In the criminal trial the charge was of being in possession of unauthorized weapon and cartridges as a member of a disciplined Police force. That was an offence under the Arms Act. The charge in the departmental proceeding was the allegation of being 15 in possession of unauthorized arms and cartridges being a member of a uniformed disciplined force. Had there been acquittal on merits, there may or may not have been occasion to consider matters differently. The manner in which the criminal trial has been conducted, leaves much to be desired. Suffice it to say that the petitioner has been given the benefit of a doubt and it is not an honourable acquittal. In view of the nature of the acquittal in the criminal trial, when official witnesses of the Police Department itself failed to appear without reasonable cause including the informant, the seizure list signed by Police Official/ Home Guards was not proved by them and the weapon seized marked as an exhibit in custody of the Police was not produced during trial. This Court is not satisfied to interfere. The seizure list may not have been proved in the criminal trial. It is not a case where there was no seizure list at all. When the petitioner was taken into custody as a Police Constable and was released, it was his legal and moral duty to explain his absence to the authorities and then permit him to join. The onus was upon him as a member of a uniformed disciplined force. He was well aware that making 16 such disclosure would land him in further difficulty. He therefore chose to play it safe not to take about it and resume his duties. The act on his part of picking up of his salary for the period that he was in custody was an extreme act of indiscipline by a person in the disciplined force. Being in custody he was aware that he had performed no duties and was not entitled for salary. In 2005 (8) SCC 747 (BALDEV SINGH VERSUS UNION OF INDIA AND OTHERS) the Supreme Court considering the claim for salary for the period of custody after acquittal has held as follows at paragraph-7:- “7. As the factual position noted clearly indicates, the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the period concerned. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore V. Supdt. Engineer, Gujarat Electricity Board.” The reliance on the case of Banta Singh (Supra) by the petitioner is misconceived. In that case the charges in the criminal trial and the 17 departmental proceeding were the same. The criminal trial had ended in acquittal. Presently, in this case, it has already been held that the charges in the criminal trial and departmental proceedings are not the same. What natural justice shall mean in a case depends on the facts and circumstances of each case. It is not an abstract principle to be invoked devoid of the factual foundation. Its applicability and scope shall depend on circumstances warranting appropriate applicability. In the facts and circumstances of the present case, the principles of natural justice as discussed in paragraph 95 and 96 of the case of Tulsi Ram Patel (supra) have no application to hold that in absence thereof the petitioner has been prejudiced in any manner in the departmental proceedings for reasons as already discussed. He has been fully informed of the charges against him. The memo. of charge contained the documentary and oral evidence to be led in proof of the same. He submitted his explanation. That he was traveling in the bus was not in dispute. A seizure list was prepared and submitted in the criminal court along with weapon seized. The petitioner never made any 18 demand for any specified documents in the proceedings. There is noting on record to show that any objection was raised by him during the departmental proceedings of any alleged evidence being taken behind his back. The second charge of collecting salary for the period of custody stand admitted by him. The conclusion of the disciplinary authority is that because of his conduct he was a person, unfit to be retained in Police service. In 2007 (8) SCC 656 (GOVT. OF A.P. AND OTHERS VERSUS MOHD. TAHER ALI) the respondent was a Police Constable who committed the offence of absence from election duty despite being deputed for the purpose. The Supreme Court at paragraph-4 observed that it was a very serious laches which could not be treated lightly to conclude in paragraph-5 in relevant extract of paragraph 5 as follows:- “5. ………….The Police force is a disciplinary force and if the respondent is the habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion the absence of 21 days by a member of the disciplined force is sufficient to justify his compulsory retirement.” The crux of the reasoning is the 19 enforcement of discipline in a uniformed force. If compulsory retirement was considered sufficient punishment in unauthorized absence of 21 days, the allegation of recovery of a country made weapon with live cartridges from a member of the uniformed force stands on a much higher pedestal to warrant his dismissal. The Court finds no merit in this application. It is accordingly dismissed but without costs. Patna High Court, Patna Dated 08.04.2010 N.A.F.R. P.K. (Navin Sinha, J.)