Patna High Court - Orders
Anil Kumar Singh vs The State Of Bihar & Ors on 27 July, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1433 of 2010
ANIL KUMAR SINGH
Versus
THE STATE OF BIHAR & ORS
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02 27.07.2010Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner is stated to be a Constable in the District Police. On 4.6.2001 he had an altercation at the Bhagalpur Railway Station with the Train Ticket Examiner (hereinafter referred to as the T.T.E.), who demanded to see his ticket. The T.T.E. lodged Bhagalpur G.R.P. Case No. 0036 of 2001under Sections 323, 341, 427, 507 of the Indian Penal Code and Sections 145, 146 of the Railway Act. The F.I.R. stated that two persons in plain clothes claiming to be Police personnel on being asked to show their tickets, by display of Police prowess, abused and assaulted the T.T.E. and tore his clothes. The police personnel were then taken to the Government Railway Police Station located at the Bhagalpur Railway Platform, where the formal F.I.R. was drawn up.
Departmental proceedings were initiated against the petitioner and one Kranti Sharma.
On conclusion of the departmental proceedings final order of punishment of dismissal was passed against him dated 28.2.2002. The petitioner questioned the same 2 in C.W.J.C. No. 32781 of 2004. This Court noticed the contention that no enquiry had been conducted, no witnesses examined, no document exhibited and only an enquiry report prepared. It was therefore held that the petitioner had been penalized by a proceeding contrary to law. The punishment was quashed with liberty to proceed afresh in accordance with law.
The Police case which was registered for the occurrence ended in a compromise on 31.8.2001, the allegations being under compoundable sections. It does not appear that this development was brought to attention of the Court when C.W.J.C. No. 3278 of 2004 came to be allowed on 28.2.2002. This Court considers it necessary to take note of this fact as it has a vital bearing on the issues in controversy.
After the order of this Court as aforesaid, fresh departmental proceedings were held and order of punishment dated 6.3.2007 passed reverting him to his basic pay scale of Constable. On appeal it has been reduced to be operative for a period of three years only.
Learned counsel for the petitioner contends that even in this proceeding no documents were supplied to the petitioner. The petitioner was not named in the F.I.R. There had been a compromise in the criminal case because of which the entire allegations stood washed off. All these 3 issues have not been considered and an enquiry report of guilt contrary to law submitted by the Enquiry Officer.
Learned counsel for the State relied upon the enquiry report to submit that immediately after the occurrence on the platform, the altercation with the T.T.E., the petitioner and Kranti Sharma were taken to the Police Station located at the Railway platform. The Officer-in- charge of the Police Station deposed in the departmental proceeding stating that on 4.6.2001 Sri R.K. Roy, T.T.E., gave information of a cognizable offence leading to institution of Railway P.S. Case No. 0036 of 2001, under the aforesaid provisions of law in which Inspector Brahmanand Singh was appointed as an Investigating Officer. Charge sheet was submitted against the petitioner. It was on the identification of the informant that the petitioner was taken into custody along with Kranti Sharma, both of whom were in an intoxicated condition. They were both medically examined by the Medical Officer of the Government Railway Dispensary. On 5.6.2001 bail bonds of the petitioner was furnished by the Constable Uttam Kumar. The said Uttam Kumar also deposed that the petitioner and Kranti Sharma were at the Police Station when he was informed about it the next day at 8:00 A.M. who then furnished the bail bonds of the petitioner for his release.
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The petitioner cross-examined the witnesses also. In view of the deposition of the Officer-in-charge of the Railway Police located at the Railway platform, this Court has no reason to interfere with the finding that the petitioner was one of the persons who entered into altercation with the T.T.E. Any doubt sought to be created by the petitioner on this score is completely obviated by his own conduct in having entered into a compromise in the criminal case with the informant. That the offences may be compoundable, is a completely different matter than to say that the occurrence never took place. The petitioner by virtue of the compromise has not been honorably acquitted on any finding that he was not involved in any such occurrence. On the contrary, his act of entering into compromise with the informant per se without anything more being required is conclusive proof of his participation and the allegations again him. The moment he enters into a compromise, the offence being compoundable he admits the charge against him in the departmental proceeding.
The legal effect of compounding has been explained by the Supreme Court in A.I.R. (2008) SC 716 (Binay Debanna Nayak Versus Ryot Seva Sahakari Bank Limited) at paragraph-11.
"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 5 though an individual might have suffered thereby. It is, therefore, the duty of the State to take appropriate 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."
In any event of the matter a criminal trial and a departmental proceeding stand on different footings. The standards of proof in the two are entirely different. While proof beyond reasonable doubt is required in the former the latter is based on preponderance of probability. The purpose of the two is also entirely different as noticed in (2006) 2 SCC 584 (South Bengal State Transport Corporation Versus Sapan Kumar Mitra & Others) at paragaph-10 as follows :-
"10.Similarly in Senior Superintendent of Post Offices, Pathamthitta and others v. A. Gopalan (1997 (11) SCC 239) the view expressed in Nelson Motis v. Union of India and others (supra) was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and order of acquittal in the 6 former, cannot conclude the departmental proceedings. This Court has further held that in a criminal case change has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case departmental proceedings could not be continued and order of removal could not be passed."
On the issue of any alleged infirmity in conduct of the departmental proceedings, as urged, it stands well settled that admitted charges need not be proved. Any infirmity in the departmental proceeding of any nature whatsoever is inconsequential and the order of punishment does not stand vitiated. The stands well explained by the Supreme Court (2007) 13 SCC 352 (Secretary, Andhra Pradesh Social Welfare Residential Educational Institution Versus Pindiga Sridhar And Others) at paragraph-7. Similarly it has been held in (2008) 5 SCC 569 (Chairman 7 & Managing Director, V.S.P. & Others Versus Gopa Raju Sri Prabhakara Hari Babu) it has been held at paragraph- 16 as follows:-
"16. Indisputably, 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 Indian 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 that his mother being ill. He, de spite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct."
True it is that the order dated 6.3.2007 did not contain any recitals with regard to the period of suspension and as to how it was to be treated , but it has been dealt with appropriately in the appellate order dated 31.8.2007. This Court finds no merit in the submission that for that reason the petitioner is entitled to full salary for the period of suspension till 31.08.2007 notwithstanding the punishment.
At this stage, learned counsel for the petitioner submitted that he has received instructions that the other delinquent Kranti Sharma had also been subjected to departmental proceedings, but has been let off with a lesser punishment.
In a departmental proceeding, if two persons 8 are proceeded with on identical charges, unless there be material to distinguish between them parity in the punishment is required to be maintained as it raises issues of violation of Article 14 of the Constitution of India by differentiating in punishment. If the petitioner represents for parity in punishment, only to that extent this Court expects the respondents to consider the same in accordance with law.
In A.I.R. 2008 SC 2481 (Maan Singh Versus State of Haryana & Others) it has been held as follows:-
"19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi- judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the 9 appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service."
The writ petition stands dismissed except to the extent indicated.
P.K. (Navin Sinha, J.)