Service Law – Evidence – Departmental Proceeding – Procedural Infirmity – Violation of Principles of Natural Justice in conducting of the enquiry – Discussed.

Evidence

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

Date: 16-11-2016

Letters Patent Appeal No.516 of 2014

Arising out of Civil Writ Jurisdiction Case No. 471 of 2004

1. The State Of Bihar 2. Director General-Cum-Inspector General Of Police, Bihar, Old Secretariat, Patna 3. The Additional Director General Of Police, Crime Investigation Department, Bihar, Old Secretariat, Patna 4. The Deputy Inspector General Of Police, Crime Investigation Department, Old Secretariat, Patna 5. The Superintendent Of Police, Crime Investigation Department, Old Secretariat, Patna 6. The Deputy Superintendent Of Police, Crime Investigation Department, Old Secretariat, Patna …. …. Appellant/s

Versus

Maharana Pratap Singh Son of Shri Bhuneshwar Singh Resident of VillageTaranpur, P.S. Gaurichak, District Patna …. …. Respondent/s

Appearance : For the Appellants : Mr. Rajeshwar Singh, GA 10 For the Respondent/s : Mr. Abhinav Srivastava, Advocate

JUDGMENT

(Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH)

Challenge in the present intra-court appeal is to the judgment dated 16.07.2013 passed by the learned Single Bench by which C.W.J.C. No. 471 of 2004 filed by the respondent-writ applicant has been allowed.

2. The respondent was appointed as constable in the Dog Squad of the C.I.D. in the year 1973. He proceeded on earned leave for two days and resumed his duty on 08.08.1988. In the meantime, an F.I.R. was lodged with a request to organize a raiding party to arrest persons who had demanded money by blackmailing the informant. The respondent was caught with Rs. 40,000/- by the raiding party and taken into custody. He was placed under suspension on 08.08.1988 and on 05.10.1988 chargesheet was submitted. On 14.06.1989 a departmental proceeding was also initiated against him. On 26.04.1994, the respondent was convicted in the criminal case. On 23.06.1995, the Enquiry Officer submitted his finding and the Superintendent of Police, C.I.D. issued second show cause to the respondent. In the meantime, conviction of the respondent was set aside in appeal by judgment dated 16.02.1996. Thereafter, the respondent submitted his reply to the second show cause on 11.03.1996. He was dismissed from service by order dated 14.06.1996 as contained in memo no. 1833 dated 21.06.1996 by the Superintendent of Police (C), C.I.D., Bihar, Patna. The appeal of the respondent was dismissed by the D.I.G., C.I.D., Bihar , Patna by order dated 11.07.1997 contained in memo no. 2404 dated 14.07.1997. The respondent filed memorial before the I.G., C.I.D. on 24.09.1997 but when the same was not decided, he filed C.W.J.C. No. 5946 of 2002, which was disposed off by order dated 13.05.2002 with a direction to the I.G., C.I.D. to dispose off the memorial filed by the respondent within two months. By order dated 06.08.2003, the memorial filed by the respondent was also dismissed by the Director General of Policecum- Inspector General of Police, Bihar, Patna. The respondent being aggrieved by the same, preferred C.W.J.C. No. 471 of 2004 for setting aside the order of dismissal which was affirmed in appeal and also by the Director General of Police. The writ petition was allowed by judgment dated 16.07.2013 and the same is the subject matter of the present Letters Patent Appeal.

3. Learned counsel for the appellants submitted that the learned Single Bench has misdirected itself by going into the merits of the allegation as an Appellate Authority, which is impermissible. It was further submitted that even the probability of the allegation has been held in favour of the respondent, which is not justified. Learned counsel submitted that the parameters in recording an evidence of guilt in a departmental proceeding is different from that in a criminal case and even initially the trial court had convicted the respondent and only in appeal he has been acquitted. Learned counsel submitted that the learned Single Bench has also not appreciated the law in its correct perspective, inasmuch as, it has been held that the respondent had to be given opportunity of cross-examining the main prosecution witness, without appreciating the fact that the respondent was present during the time the prosecution witness was examined and him not cross- examining the witness would not make the testimony weak in law. It is submitted that if at all the prosecution had not given opportunity to the respondent to cross-examine, then objection ought to have been made by the respondent, who was very much present during the examination of the said prosecution witness, but he has not made any objection. Learned counsel submitted that the orders of the Disciplinary Authority, the Appellate Authority as well as the Director General of Police on the memorial filed by the respondent, are well considered and do not suffer from any illegal infirmity. Learned counsel submitted that the respondent was caught with Rs. 40,000/- which he had received from the informant which has not been denied by him as he has only stated in his defence that a briefcase was forcibly given in his hand which contained Rs. 40,000/-. It was submitted that such plea cannot be accepted for the reason that the respondent has been unable to explain his presence at the spot when such transaction of money took place.

4. Learned counsel for the respondent submitted that the order of the learned Single Bench is well considered and requires no interference. Learned counsel further submitted that the authorities had not given any opportunity to cross examine the prosecution witness moreso, in the background of the specific allegation of bias against the said witness, who was also the Officer-in-Charge of the concerned police station, to implicate the respondent for oblique reasons. Learned counsel submitted that the respondent having been acquitted in the criminal case for the same charges, the order of dismissal cannot be sustained and has rightly been set aside. Learned counsel submitted that the charges were also vague as there was no description as to who had made the allegation and details with regard to the allegation had also not been made and the enquiry conducted and finding the respondent guilty of charges could not be sustained. It was further submitted that the evidence adduced was perfunctory and did not bring home the guilt of the respondent and the order of dismissal based on such enquiry report has rightly been set aside. For such proposition, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of

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