1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4857 of 2010 1. BRIJ KUMAR SINGH S/O LATE PEYAR SINGH R/O VILL PASAUR, P.S.CHARPOKHARI, DISTT-BHOJPUR Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL -CUM-COMMANDANT GENERAL BIHAR HOME GUARD BIHAR, PATNA 3. THE ADDITIONAL COMMANDANT GENERAL BIHAR, PATNA 4. THE DEPUTY DIRECTOR GENERAL , BIHAR HOME GUARD BIHAR, PATNA 5. THE COMMANDANT , BIHAR HOME GUARD , HEAD QUARTER BIHAR, PATNA 6. THE DIVISIONAL COMMANDANT , BIHAR HOME GUARD BIHAR, PATNA 7. THE DISTRICT COMMANDANT , BIHAR HOME GUARD WEST CHAMPARAN, BETTIAH ----------- For the Petitioner: Mr. Ashok Kumar Choudhary & Satyapal Singh Advocates For the State : Mr. Mayank Ru8khaiyar, AC to GA 5 ------ 2. 09.11.2010 Heard learned Counsel for the petitioner and the State. The petitioner was a Company Commander in the Bihar Home Guards. He is aggrieved by the order dated 1.1.2008 passed by the Deputy Commandant General, Home Guards, dismissing him from service after a departmental proceeding. The appeal preferred against dismissal has been rejected on 15.5.2008 by the Additional Commandant General, Home Guards. The Memorial before the Commandant General has also been rejected by order dated 17.12.2009. Learned Counsel for the petitioner submitted that a First Information Report Bettiah P.S.Case No. 405 of 2005 was registered against him on 14.11.2005 under Section 376/511 Indian Penal Code. The Police during investigation did not find the allegations true and submitted charge sheet under Section 354 Indian Penal Code only. On 16.8.2006 departmental proceedings were started against the petitioner for three charges which were primarily based on the allegations in the F.I.R. The enquiry report was submitted on 9.1.2007. After a second show cause notice, duly replied, the order of dismissal dated 1.1.2008 2 was passed. In the criminal trial by judgment dated 22.11.2008, the Court held that the allegations had not been proved beyond reasonable doubt as the prosecution-witnesses did not support the charge, the offence had been compounded, leading to acquittal. It was contended, that the charge in the departmental proceeding and the criminal trial were the same. The petitioner had been acquitted in the criminal trial. The occurrences or events in the criminal trial and the departmental proceeding were the same. The witnesses were common. The criminal trial having failed, the petitioner is entitled to full benefit of the acquittal and reinstatement in service. The acquittal in the criminal trial and the non-proper consideration of the same in the memorial vitiates the final order dated 17.12.2009. In any event, there is no proper consideration of the reply to the second show cause notice before imposition of the punishment dated 1.1.2008.The order of the Appellate authority dated 15.5.2008 is cryptic and non-speaking in nature. Strong reliance is placed on the judgment of the Supreme Court in (1999) 3 SCC 679 (Captain M. Paul Anthony Vs. Coal Mines Limited and another). The respondents have filed a counter affidavit. Supporting the findings in the departmental proceedings it is submitted that the punishment requires no interference. An F. I R., Bettiah P.S. Case No. 405 of 2005 was lodged on 14.11.2005 at 10:30 a.m., under Sections 376, 511 IPC by Sri Rajesh Kumar, and father of the victim girl 5 years of age. It states that on 13.11.2005 at about 5 PM his daughter was playing near her house. The petitioner, a Company Commander, 3 Home Guards, was residing as a tenant in the adjacent house of Champa Devi. He enticed the victim girl with a toffee and took her inside his house, pressed her chest and opened her pants attempting to outrage her modesty. His daughter shouted when his wife along with people residing in the vicinity ran and saved the minor girl. The girl was crying and described the incident. For social reasons of public shame and embarrassment the FIR was lodged after consideration the next morning. The Police submitted charge sheet on 20.12.2005 after investigation under Section 354 of the Penal Code. On 16.8.2006 charges were framed against the petitioner for a departmental proceeding under three heads. The first charge was that he enticed the minor girl for immoral purposes leading to institution of the Police Case against him in which charge sheet was submitted on 20.12.2005.The second charge was that after the occurrence when the local people tried to trace him he went and hid himself in the Armoury at Bettiah. The local people surrounded the office and Armoury insisting that the petitioner be handed over to them. If the public had not been pacified it may have resulted in a serious untoward incident both against the officers and the Armoury. The third charge was that because of his conduct the image of the police force had been sullied which was indicative of his unbecoming and criminal conduct. In the departmental proceedings the informant, the victim girl and her mother deposed and were cross-examined also. They fully supported the charge. The District Commandant who pacified the crowd near the Armoury was also examined and 4 cross-examined. He also proved the arrest of the petitioner from the Armoury. The chargesheet under Section 354 IPC was exhibited during the departmental enquiry. The case diary of the police case, also exhibited, from page 40 to 46 in Column 5 contained adequate description of the protest made by the people outside the Armoury. The Enquiry Officer discussed the materials against the petitioner, the cross-examination done by his lawyer to arrive at the conclusion that the charges were proved. A second show cause notice was issued on 6.8.2008 which was duly replied to by the petitioner. In his reply the petitioner denied the allegations and objected that the Enquiry officer erred in again examining the victim girl alone himself without the right to fresh cross examination. The Court has examined the reply on record. The petitioner has raised no objection of any procedural irregularity in the conduct of the departmental proceedings vitiating the same. The objection that the victim girl was examined a second time by the Enquiry Officer behind his back is well explained by the Enquiry officer. The victim girl in her deposition fully supported the charge. The Enquiry officer was of the opinion that given her tender age she may have been overawed by the cross examination done by a lawyer and therefore did not reiterate the entire sequence of events in detail. The duty of the Enquiry officer was to arrive at the truth. The victim girl did not deviate from the story in its essentials. It is not the case of the petitioner that the victim girl never came to his premises. No ground has been urged in what manner the petitioner has been prejudiced by the same. No ground has been urged why the informant falsely implicated him 5 except a belated yarn of a monetory loan with no details of the date, loan amount etc. The order of dismissal dated 1.1.2008 therefore merits no interference. No copy of the memo of appeal has been brought on record. Nothing has been urged what in the memo of Appeal has not been considered so as to cause him prejudice. If the enquiry report is detailed and the petitioner in his reply to the second show cause did not raise any issues the Appellate authority was not required to make a rhetorical incantation The criminal case appears to have proceeded in the meantime. The informant, the victim girl and her mother who had deposed in the departmental proceedings also deposed during the trial along with other prosecution witnesses. They stated that since the issue had been compromised with the petitioner they were not desirous to pursue the matter. The Trial Court held that the prosecution had failed to prove the allegations beyond reasonable doubt and acquitted the petitioner. The petitioner then represented on 19.3.2009 requesting for his reinstatement in the light of the acquittal. When no action was taken he approached this Court in CWJC No. 8329 of 2009. The Court directed his representation to be treated as akin to a memorial under Section 853A of the Bihar Police Manual which was required to be considered and disposed in accordance with law by the Director General cum Commandant General. While the writ petition was pending the respondents rejected his representation on 19.6.2009 which the parties could not apprise the Court. The petitioner filed a fresh 6 representation in light of the order of this Court which has again been rejected on 17.12.2009. In the criminal trial, the prosecution witnesses mentioned that since they had compromised the case with the petitioner they did not wish to make any statement. There was no trial on merits of the allegations leading to a clean acquittal. The petitioner was acquitted by reason of benefit of doubt based on the compounding between the parties. The law contemplates two kinds of offences under the Penal Code. There are some offences which are considered crucial and detrimental to the interest of the Society, the others are considered trivial and individual. This law finds incorporation in Section 320 Cr.P.C. Section 354 I P C under which the petitioner was prosecuted, is compoundable in nature with the leave of the Court. When a prosecution is disposed on basis of compounding permissible under the Code it is not that the occurrence never took place. Compounding does not negate the occurrence. It is only that the law does not consider it so serious a matter to pursue it in the larger interest of the society and permits it to be settled between the parties. The occurrence remains, the offence is not obliterated. Only the conviction is set aside. Reading it in juxta position with a departmental proceeding the effect of Section 320(8) Cr.P.C. has to be read as limited to that extent. Explaining the effect of compounding of an offence the Supreme Court in AIR 1967 SC 895 (Biswabahan Das v. Gopen Chandra Hazarika at paragraph 11 has held as follows:- 7 “11. We are unable to accept the above reasoning. If a person is charged with an offence, then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal. If composition of an offence was permissible under the law, the effect of such composition would depend on what the law provided for. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for the mere rendering of compensation would not amount to the vindication of the character of the person charged with the offence.” In AIR 2004 SC 86 (Assistant Commissioner, Assessment- II Bangalore & ors. Vs. M/s Velliappa Textiles Ltd. & ors) the effect of compounding has been explained in paragraph 45 in the following terms:- “45. The main reason given in P.V.Pai V. B.L.Rinawma, ILR (1993) Kant 709, for holding that an opportunity of hearing should be given to an accused before grant of sanction is that under Section 279(2) of the Act any offence under Chapter XXII may, either before or after the institution of proceedings be compounded by the Board, or a Chief Commissioner or a Director General authorized by the Board in this behalf and, therefore, if an opportunity is given to an assesses before grant of sanction, he may offer for composition in order to save himself from the “disgrace and ignominy of the prosecution”. It is difficult to agree with the reasoning of the High Court. If some one has committed an offence, he must be prosecuted and if found guilty, must be punished in accordance with law. Compounding of an offence is not right of the accused nor it is his unilateral act. It can only be done with consent of the authorities enumerated in the provision. No additional right can be created in favour of an accused to enable him to save himself from the “disgrace and ignominy of the prosecution”. Summing up the meaning of the words compounding the Supreme Court in (2008) 2 SCC 305 (Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd)very succinctly has explained it in paragraph 11 as follows:- “11. It is no doubt true that every crime is considered to be an offence against the society as a whole and not only against an individual even though an individual might have suffered thereby. It is, therefore, the duty of the State to take appropriate 8 action against the offender. It is equally the duty of a court of law administrating criminal justice to punish a criminal. But there are offences and offences. Certain offences are very serious in which compromise or settlement is not permissible. Some other offences, on the other hand, are not so serious and the law may allow the parties to settle them by entering into a compromise. The compounding of an offence signifies that the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining from proceeding further with the case.” A criminal trial and a departmental proceeding stand on a completely different footing. While the purpose of a criminal trial is to bring an offender to book and punish him penal in the larger interest of the society, a departmental proceedings is held to enforce discipline in service. A criminal trial can also be a ground for holding a departmental proceeding for an impact assessment of the desirability of continuing such a person in service. Mere acquittal in a criminal trial shall not ipso facto result in reinstatement. The standard of proof in the two proceedings is entirely different. One is founded on the theory of proof beyond reasonable doubt, the other on preponderance of probabilities. Even a clean acquittal in a criminal trial has been held by the Courts as not sufficient to warrant reinstatement. The issue shall be if the charge in the departmental proceedings stands satisfied on preponderance of probabilities. In the present case the petitioner has not been honourably acquitted. He has had the benefit of doubt because of the offence having been compounded. This Court has already discussed that compounding ipso facto is an acknowledgement of the occurrence / offence. All it does is, take away the conviction. The purpose of the departmental proceedings in light 9 of the criminal prosecution was to make an assessment of the desirability of keeping in service a person in the uniformed force who turned from the protector into a predator. In 1996(6) SCC 417(State of Rajasthan v. B.K.Meena) the Supreme Court was considering the case in which a police case had been lodged with regard to misappropriation of public funds. Departmental proceedings were also started. Explaining the meaning, purpose and difference in the two proceedings the Supreme Court at paragraph 14 and 17 held as follows:- “14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be „desirable‟, „advisable‟ or „appropriate‟ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that “the defence of the employee in the criminal case may not be prejudiced”. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, „advisability‟, „desirability‟ or „propriety‟, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be — and should not be — delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a 10 criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. 17. There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.” 11 In 1997 (11) SCC 239 (Senior Supdt. of Post Offices v. A. Gopalan ) the respondent was proceeded on two charges of misconduct with regard to deposits of the customers of the Post Office. In the departmental enquiry dismissal was imposed. In the criminal trial under Sections 407, 467 and 477 IPC. he was acquitted on the benefit of doubt that the offence had not been established beyond reasonable doubt. The Supreme Court held at paragraph 6 as follows:- “6. We have heard Shri V.C. Mahajan, the learned Senior Counsel appearing for the appellants and Shri K.M.K. Nair, the learned counsel appearing for the respondent. Shri Nair has submitted that since the respondent has been acquitted by the criminal court on the charge of withdrawal of Rs 8000, the Tribunal was right in holding that the finding regarding the first charge could not be sustained. Shri Nair has placed reliance on the decision of this Court in Nelson Motis v. Union of India1. The said decision does not lend support to the said submission of Shri Nair. In that case the Court has rejected the contention that disciplinary proceedings could not be continued in the face of the acquittal in the criminal case and has held that the nature and scope of the criminal case are very different from those of a departmental disciplinary proceedings and an order of acquittal, therefore, cannot conclude the departmental proceedings. This is so because in a criminal case the charge has to be proved by the standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities. The Tribunal was, therefore, in error in holding that in view of the acquittal of the respondent by the criminal court on the charge relating to withdrawal of Rs 8000 the finding on the first charge in the departmental proceedings cannot be upheld and must be set aside. The Tribunal was also not right in taking the view that even though the second charge of misappropriation of the sums of Rs 379 and Rs 799 realised as customs duty was established, the punishment of compulsory retirement that was imposed on the respondent could not be sustained. Having regard to the fact that the second charge related to misappropriation of funds for which the punishment of compulsory retirement could be imposed the Tribunal, in exercise of its jurisdiction, could not direct the appellate 12 authority to review the penalty imposed on the respondent.” In 1997(11) SCC 361 ( Govind Das v. State of Bihar ) the appellant questioned termination of his services on the ground of acquittal in the criminal case. The challenge was rejected on the ground that the acquittal was based on charges not being proved beyond reasonable doubt holding at para 2 as follows:- “2. The only ground which has been urged by the learned counsel for the appellant in support of this appeal is that since the appellant has been acquitted in the criminal case, the order for termination of his services should have been set aside. The learned counsel has placed before us a copy of the judgment of the criminal court whereby the appellant was acquitted. We have gone through the said judgment. We find that the acquittal of the appellant is based on the view that the charges are not proved beyond reasonable doubt. Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellant in the criminal case, in these circumstances, could not, in our opinion, be made the basis for setting aside the order for termination of the services of the appellant passed in the disciplinary proceedings on the basis of evidence adduced in the departmental inquiry conducted in the charges levelled against the appellant. We, therefore, find no merit in this appeal and the same is accordingly dismissed. No orders as to costs.” In the case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd. & anr. (1999) 3 SCC 679, relied upon by the petitioner the categorization done by the Court on consideration is to be found at para 22 as follows :- 22. The conclusions which are deducible from various decisions of this Court referred to above are: 13 (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is