IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6197 of 2007 Binay Kumar Singh, SON OF SHRI SITARAM SINGH, RESIDENT OF VILLAGE MANO, P.S. SURYAGARHA, DISTRICT- LAKHISARAI. 2. DINANATH KUMAR, SON OF SHRI JAIRAM SHARMA, RESIDENT OF VILLAGE KANAULI, P.S. MAKHADUMPUR, DISTRICT- JEHANABAD :---PETITIONERS. Versus 1. The State Of Bihar 2. THE DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. INSPECTOR GENERAL OF RAILWAY, BIHAR, PATNA. 4. THE DEPUTY INSPECTOR GENERAL OF RAILWAY, BIHAR, PATNA. 5. THE SUPERINTENDENT OF RAILWAY POLICE, JAMALPUR :- --RESPONDENTS. ---------------------------------- For the petitioners :- Mr. Ramakant Sharma, Senior Advocate. M/S. Rajesh Kumar, Lakshmikant Sharma, Narendra Kumar Singh, Advocates. For the State :- Mr. Pushkar Narain Shahi, A.A.G. XIV. Mr. Dhirendra Kumar, A.C. to A.A.G. XIV. ====== 2. 25.11.2011. Heard learned counsel for the petitioners and the State. 2. At the relevant date i.e. 15.3.1994 petitioners were serving as Constable with the Government Railway Police and were assigned the duty to escort 302 Down Gorakhpur Hawrah Express. They have filed this writ petition questioning the order dated 18.7.2003, Annexure-14 passed by the Superintendent of Police, Railways, Jamalpur removing them from service. They have also challenged the order dated 2.9.2004, 15.3.2007 passed by the D.I.G., Railways and Director General-cum- Inspector General, Bihar, Patna, Annexure- 15, 16 respectively dismissing their appeal, memorial filed against the removal order. Before removal of the petitioners, they were served with the memo of charge 2 under Memo No. 17 dated 20th February, 2000, Annexure-4, wherefrom it appears that two separate departmental proceeding no. 85, 86 of 1999 was initiated against the petitioners. Perusal of memo of charge dated 20th February, 2000 indicates that petitioners along with two others while escorting 302 Down Gorakhpur Howrah Express on 15.3.1994 searched Sanjay Kumar Burman, his co-passenger traveling from Chapra in possession of 12 Kg. Silver and asked them to pay Rs. 20,000/-. On refusal of the two allegationist to pay the amount, the allegationist were detained by the members of the escort party at Chitranjan Railway Station and taken to the police station. While detaining the allegationist at the Railway Station, Rs. 450/- was forcibly taken out from the pocket of one of the allegationist and they were handed over to the Officer incharge, Mihijam Police Station. Further charge levelled against the petitioners is that on the statement of the allegationist, Madhupur Rail P.S.Case No. 29 of 1994 was registered on 24.3.1994 for the offence under Section 384 of the Penal Code which was investigated by the Inspector of Police, Jhajha Rail P.S. Madan Mohan Pandey and after investigation allegations levelled against petitioners and the Officer incharge, Mihijam P.S., Sub-Inspector Balram Prasad found true and Charge Sheet no. 11/97 dated 24.8.1997 was submitted. Perusal of the charge-sheet further indicates that in support of the charges the authorities 3 desired to rely on the First Information Report lodged in connection with Madhupur Rail P.S.Case No. 29 of 1994, Supervision Note Report No. 2 and Memo No. 618, 646, 658 dated 4.6.1998, 14.7.1997, 19.7.1997 together with the brief of the case. Besides the documentary evidence the authorities also desired to rely on the statement of Sanjay Kumar Burman, his co-passenger Raj Kumar Sah, Inspector, Govt. Railway P.S. Jhajha Madan Mohan Pandey and the Crime Reader. Having received the memo of charge the two petitioners submitted their separate written defence. Written defence of Petitioner No. 1 is dated 6.3.2000 and is contained in Annexure-5 to the writ petition. Perusal of the written defence indicates that petitioner no. 1 denied the allegations as false and imaginary and claimed that he is not at all aware about the occurrence as to who forcibly extorted amount from the victims. The Enquiry Officer considered the written defence of the petitioners and proceeded with the enquiry in which he examined documentary evidence referred to in the charge-sheet as also two witnesses out of the three named in the charge-sheet, namely, Madan Mohan Pandey, Inspector, Govt. Railway P.S., who recorded the fardbeyan of Madhupur P.S.Case No. 29 of 1994 as also the Crime Reader, named in the charge-sheet. Opportunity was given to the petitioners to cross-examine Madan Mohan Pandey but petitioners did not choose to cross-examine Madan Mohan Pandey. The allegationist 4 Sanjay Kumar Burman and his co-passenger could not be examined by the Enquiry Officer inspite of repeated summons to them as they were not coming for their examination. For failure of the authorities to examine the allegationist Sanjay Kumar Burman and his co- passenger, the Enquiry Officer exonerated the petitioners of Charge No. 1 but with reference to the evidence of the Inspector, Govt. Railway P.S., Jhajha Madan Mohan Pandey and the Crime Reader as also the documents referred to in the charge-sheet and exhibited in the proceeding by the Crime Reader both the petitioners were held guilty of Charge No. 2 i.e. their complicity in Madhupur Rail P.S.Case No. 29 of 1994 dated 23.3.1994 for offence under Section 384 I.P.C. under Enquiry Report dated 11.10.2000 which was served on petitioner no.2 under second show-cause notice dated 1.11.2002, Annexure-9. 3. The Enquiry Report dated 11.10.2000 was considered by the disciplinary authority and as the allegationist Sanjay Kumar Burman and his co-passenger was not examined by the Enquiry Officer the departmental proceeding file was returned to the Enquiry Officer instructing him to take steps for securing examination of Sanjay Kumar Burman and his co- passenger. In compliance of the instruction of the disciplinary authority the Enquiry Officer under Letter No. 399 dated 2.12.2002, Annexure-11 sought 5 permission from the disciplinary authority to proceed to Durgapur for examining Sanjay Kumar Burman and his co-passenger. Having sought permission the Enquiry Officer examined Sanjay Kumar Burman and his co- passenger who supported the occurrence but refused to identify the two petitioners as members of the escort party categorically stating that he does not remember whether the persons produced were members of the same escort party and were armed with rifle at the time of occurrence. In the light of the statement of the victim Sanjay Kumar Burman and his co-passenger the Enquiry Officer submitted additional report dated 30.1.2003, Annexure-12 stating that for the failure of the victims to identify the two delinquents as member of the escort party the two delinquents are exonerated of charge no. 1 levelled against them. Copy of the report dated 30.1.2003 was sent to the disciplinary authority who under letter bearing no. 86 dated 4.2.2003, Annexure-12 forwarded the same to the petitioners asking them to show-cause as to why they be not punished with major punishment in the light of the findings recorded in the report annexed with the letter dated 4.2.2003. The petitioners submitted their show-cause reply dated 28.3.2003, Annexure-13 and 4.2.2003, Annexure-13/1 and stated that as they have been fully exonerated of charge no. 1 in report dated 30.1.2003 annexed with the second show-cause notice they should be exonerated of both the charges and the 6 matter be closed. The disciplinary authority under order dated 18.7.2003, Annexure-14 relying on the contents of the fardbeyan, supervision report of the Superintendent of Police, Railways Sri H.K.Mishra and the findings of the investigating Officer holding the two petitioners guilty of the allegations during the investigation of the criminal case held the petitioners guilty of the allegations levelled against them and rejected the cause shown by the petitioners and directed for their removal from service. Against the removal order petitioners preferred appeal which was also rejected under orders dated 2.9.2004, Annexure-15, whereafter the petitioners preferred memorial before the Director General-cum-Inspector General of Police who also rejected the same under order dated 15.3.2007, Annexure-16. By filing the writ petition the two petitioners have challenged the aforesaid removal, appellate and the order passed on the memorial contained in Annexures- 14, 15 and 16. 4. Counsel for the petitioners has assailed the three orders on the ground that on similar allegations, which is the basis of the memo of charge, Madhupur P.S.Case No. 29 of 1994 was also registered and in the said criminal case petitioners have been acquitted by the court of competent jurisdiction and as the charge of extortion has not been found proved against the two petitioners the order of dismissal passed against them is fit to be set aside. The other submission raised on behalf 7 of the petitioners is that the complainant Sanjay Kumar Burman and the material witness, his co-passenger having not supported the occurrence and the complicity of the petitioners the removal order is fit to be set aside. The third submission raised on behalf of the petitioners is that petitioners were not given opportunity to cross- examine the witnesses examined in the proceeding and for such failure to grant the petitioners opportunity to cross-examine, the removal order is fit to be set aside. Finally learned counsel for the petitioners submitted that the second show-cause notice dated 4.2.2003, Annexure- 12 was served on the petitioners enclosing the Enquiry Report dated 30.1.2003 in which petitioners having been exonerated of the charge the disciplinary authority could not have held him guilty without serving on them the reasons for differing with the finding of exoneration recorded in the report dated 30.1.2003. In support of his first submission that petitioners having been acquitted in the criminal case founded on the same facts under judgment dated 28.5.2008, Annexure-17 their removal order dated 18.7.2003, Annexure-14 is fit to be set aside relying on the findings recorded by the Criminal court, learned counsel for the petitioners relied on the judgment of the Hon’ble Supreme Court in the case of G.M.Tank Vs. State of Gujarat and others, reported in (2006) 5 SCC 446, paragraphs 17,18,20,30. In support of the submission that without examining the complainant and 8 his co-passenger the authorities could not have held the petitioners guilty of the charge of extortion and passed removal order learned counsel relied on the judgment of the Hon’ble Supreme Court in the case of Hardwari Lal Vs. State of U.P. and others, reported in (1999) 8 SCC 582 Paragraphs 3-5. Besides the aforesaid two case laws learned counsel for the petitioners also relied on the judgment of the Hon’ble Supreme Court in the case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and others, reported in (2006) 4 SCC 713 and with reference to the said judgment submitted that the appellate as also the authority deciding the memorial is required to consider the facts and circumstances of the case while considering the appeal and memorial in an objective manner but from perusal of the order passed by the authority disposing of the appeal and memorial of the petitioners it does not appear that they have examined the case of the petitioners with objectivity which is expected of the appellate and the authority empowered to deal with appeal and memorial. 5. Counsel for the State on the other hand submitted that petitioners were assigned the duty to escort the train and had no jurisdiction to search the passengers and they exceeded their authority when they proceeded to search the allegationist Sanjay Kumar Burman and his co-passenger having seen that they were businessmen dealing with silver and carrying 12 Kg. of 9 silver asked the two businessmen to pay Rs. 20,000/- and on their refusal to pay such amount extorted Rs. 450/- from the pocket of Sanjay Kumar Burman. The complicity of the two petitioners was found established during investigation of Madhupur P.S.Case No. 29 of 1994 and charge-sheet was submitted against them. Relying on the statement of the Inspector, G.R.P., Jhajha, Madan Mohan Pandey who recorded the fardbeyan of Sanjay Kumar Burman and other materials raised during investigation of the criminal case and duly proved in the departmental proceeding by the Crime Reader, Enquiry Report dated 11.10.2002, Annexure-9 was submitted, perusal whereof would indicate that relying on the statement of the Inspector G.R.P. Jhajha, Madan Mohan Pandey and the Crime Reader, petitioners were held guilty of Charge No. 2 that during investigation of Madhupur P.S.Case No. 29 of 1994 their involvement in the said criminal case was found established. Learned counsel for the State further submitted that the disciplinary authority considered the Enquiry Report dated 11.10.2002 but as the said report was submitted without examining the allegationist and his co-passenger directed the Enquiry Officer to examine the two allegationist and submit further report in the matter. In compliance of the direction of the disciplinary authority, Enquiry Officer went to Durgapur and examined the allegationist and his co-passenger who supported the 10 occurrence that they were victim of extortion of Rs. 450/- by the members of the escort party on 15.3.1994 but refused to identify the two petitioners as the members of the escort party. The Enquiry Officer appreciating the contents of the statement of the two allegationist submitted additional report dated 4.2.2003 observing that the two delinquents i.e. the petitioners are fully exonerated of the charges levelled against them that they extorted money from passengers on 15.3.1994. Additional report dated 4.2.2003 according to learned counsel for the State has been rendered much after the occurrence and because of the passage of time the allegationist could not identify the culprits. It is further pointed out by the State counsel that even in the statement exonerating the delinquents the victims never said that the allegations levelled by them in the fardbeyan is not correct. Even belatedly they supported the allegations but only refused to identify the two delinquents. Disciplinary Authority having received the additional report dated 30.1.2003 issued second show-cause notice dated 4.2.2003 enclosing only the additional report dated 30.1.2003 and asked the petitioners to show-cause as to why they be not inflicted with major punishment. In response to the second show-cause notice dated 4.2.2003 petitioners submitted their show-cause reply dated 28.3.2003, 4.2.2003, Annexures 13, 13/1 and again reiterated the same stand which they had earlier taken and pleaded 11 that they being not identified by the allegationist in their statement recorded by the Enquiry Officer they be exonerated of the charge and the proceeding be closed. Learned counsel for the State, however, submitted that the reply of the two delinquents was rightly not accepted by the disciplinary authority as disciplinary authority was of the view that on account of passage of time the allegationist and his co-passenger may not have been in a position to identify the culprits who extorted money from them about 10 years earlier. Learned counsel for the State further submitted that although the Enquiry Report dated 11.10.2002 was not enclosed with the second show-cause notice the same can always be used and this Court relying on the earlier Enquiry Report dated 11.10.2002 should not interfere with the impugned orders as from the Enquiry Report dated 11.10.2002, Annexure-9 it would appear that petitioners even refused to cross-examine Madan Mohan Pandey, Inspector G.R.P. Jhajha, who had recorded the fardbeyan of Madhupur P.S.Case No. 29 of 1994 and was actively associated with the investigation of the said case and relying on the statement of Madan Mohan Pandey as also of the Crime Reader who proved the documents raised during the investigation of Madhupur P.S.Case No. 29 of 1994 the charge levelled against the petitioners that they were found involved in connection with Madhupur P.S.Case No. 29 of 1994 was found proved by the Enquiry Officer. 12 6. Counsel for the petitioners in rejoinder submitted that as the second show-cause notice dated 4.2.2003 only contain the Enquiry Report dated 30.1.2003 the petitioners submitted their reply with reference to the findings recorded in the report dated 30.1.2003. Report dated 30.1.2003 being in favour of the petitioners in the light of the statement of the allegationist and his co-passenger petitioners had no occasion at all to deal with the findings recorded against them in the earlier Enquiry Report i.e. 11.10.2002. 7. Having heard counsel for the parties and having perused the pleadings filed by them as also the Enquiry Report dated 11.10.2002, 30.1.2003, I am of the view that the first three submissions raised by the counsel for the petitioners has no merit at all as the finding of acquittal recorded under judgment dated 28.5.2008, Annexure-17 is on account of failure of the prosecution witnesses to examine themselves in support of the prosecution. For failure of the prosecution witnesses to examine themselves in the criminal trial so as to bring home the charge levelled against the petitioners shall only save the petitioners from being convicted of the offence alleged against them. For the failure of the witnesses to prove the charge in the criminal trial they cannot be allowed exoneration in the departmental proceeding as the standard of proof in the proceeding is probability of the circumstances raised 13 against delinquent whereas in a criminal trial the prosecution is required to prove the charge beyond reasonable doubt. Standard of proof in the two proceedings being different petitioners, in my opinion are not well advised to rely on the finding of acquittal recorded against them in criminal trial on account of failure to examine the witnesses for seeking exoneration in the departmental proceeding. Reliance placed over the case of G.M.Tank (supra) is misconceived as in the said case accused was acquitted in the disproportionate assets case on merit by the trial court by examining same set of witnesses who were relied upon by the Enquiry Officer to prove the charges and appreciating such fact Hon’ble Supreme Court held that under the circumstances, it would be unjust and oppressive to allow the findings recorded in the departmental proceedings to stand. The other submission that the allegationist and others were not examined by the Enquiry officer and without examining them the report dated 11.10.2002 was submitted should be ignored is also not acceptable for the reason that for establishing the charges levelled against the petitioners the documents referred to in the charge- sheet and the witnesses have been named in the charge- sheet and it is always open for the authorities not to examine any particular witness in support of the charge. In the instant case while submitting the Enquiry Report dated 11.10.2002 the Enquiry Officer indicated that 14 inspite of several letters and reminders having been issued to the allegationist and his co-passenger they were not forthcoming for recording their statement and in such circumstances if the allegationist had not chosen to examine themselves in support of the charge may be on account of being won over by the petitioners, I am not inclined to observe that only because the allegationist and his co-passenger has not been examined in support of the charge, other evidence of the Inspector G.R.P., Jhajha, Madan Mohan Pandey and that of the Crime Reader be ignored. Reliance placed by the learned counsel for the petitioners over the judgment in the case of Hardwari Lal (supra) in support of his second submission is also misconceived as Hon’ble Supreme Court in the said case was considering a situation in which allegationist policeman alleged against another policeman that in a drunken state the other policeman abused the allegationist. As the allegationist and the delinquent both were policemen, Hon’ble Supreme Court observed that in the facts of the said case it was necessary to have examined the allegationist in support of the allegation that another policeman in a drunken state had abused him. In the case in hand the allegationist were passengers in a train. They were detained at Chitranjan Railway Station which was not their home and money was extorted from their pocket whereafter they went to Durgapur which is away from Chitranjan and in such 15 circumstances, if they were not reporting in response to the summons for recording their statement in the proceeding against the petitioners it cannot be said that for their failure to examine themselves the first report should be ignored. The question, however, still remains that the second show-cause notice dated 4.2.2003 only contained report dated 30.1.2003 and petitioners were asked to submit their second show-cause reply as to why they be not given major punishment in the light of the findings recorded in the report enclosed with the notice. Report dated 30.1.2003 completely exonerated the petitioners of the charges levelled against them, in my opinion, the disciplinary authority was required to have issued reasons for differing with the finding recorded in the report dated 30.1.2003, may be on the ground of the findings recorded in the earlier report dated 11.10.2002 but as neither the earlier report dated 11.10.2002 nor the show-cause notice dated 1.11.2002 has been referred to in the second show-cause notice dated 4.2.2003, I have no option but to quash the removal order dated 18.7.2003, Annexure-14, appellate order dated 2.9.2004, Annexure-15 and the order passed on the memorial dated 15.3.2007, Annexure-16 and remit back the matter to the Superintendent of Police, Railways, Jamalpur with direction to the Superintendent of Police to reconsider the matter in the light of the earlier report dated 11.10.2002 and proceed in accordance with law but must conclude 16 the matter, as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order. The arrears of salary of the petitioners for the period between 18.7.2003 till the date of this order shall depend upon the result of the final order passed by the Superintendent of Police in the light of the order of the High Court. Petitioners were under suspension with effect from 4.6.1994, as is evident from the removal order itself, as such, for the present also they shall remain under suspension but must be paid the subsistence allowance not only for the period from the date of this order but also for the earlier period of suspension, provided they have not been paid Subsistence Allowance for the said period. It goes without saying that within a fortnight of the receipt of this order the arrears of Subsistence Allowance, if any be paid to the petitioners. 8. The writ petition is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)