Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 890 (PAT)

Lakshman Pandey v. State Of Bihar

2002-08-14

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application, prayer made by the petitioner is to issue a writ in the nature of mandamus or any other appropriate writ or direction restraining the respondents from proceeding in departmental proceeding No. 19 of 2002 till final disposal of Mithanpura P.S. Case No. 126 of 2001. 2. Short facts giving rise to the present application are that Deputy Superintendent of Police gave a report to the Mithunpura police station about the theft of one S.L.R. rifle and one magazine. According to the first information report petitioner was incharge of the armoury and hence responsible for the same. On the basis of the afoesaid report Mithunpura P.S. Case No. 122 of 2001 was registered under section 380 of the Indian Penal Code. In respect of the same occurrence a departmental proceeding has also been initiated against the petitioner and memos of charges dated 8.12.2001 and 4.1.2002 have been served on him. Petitioner filed application dated 31.1.2002 (Annexure-7) for staying the departmental proceeding till the disposal of Mithunpura P.S. Case No. 122 of 2001. It is the stand of the petitioner that without taking any decision on the prayer of the petitioner for staying the departmental proceeding till the conclusion of the criminal case, by memo dated 9.7.2002 (Annexure-9) petitioner has been asked to appear in the inquiry on 15.7.2002. 3. Mr. Teg Bahadur Singh appearing on behalf of the petitioner submits that criminal case and departmental proceeding initiated against the petitioner cannot go on simultaneously. 3. Mr. Teg Bahadur Singh appearing on behalf of the petitioner submits that criminal case and departmental proceeding initiated against the petitioner cannot go on simultaneously. I had the occasion to consider this question in somewhat detailed manner in C.W.J.C. No. 7008 of 2002 (Sitaram Choudhary V/s. The State of Bihar and others) disposed of on 23.7.2002 and in the said case I had held as follows : (i) There is no legal bar for both proceedings i.e. criminal case and departmental proceeding to go on simultaneously; (ii) The principles of natural justice do not require that an employer must wait for the decision of a criminal case before taking action against an employee; (iii) The defence of the employee shall be prejudiced, is not a valid ground for staying the disciplinary proceeding unless and until the charge is not only of grave nature but the case also involve complicated questions of law and fact; (iv) Departmental proceeding shall not be stayed in a case in which the criminal trial is likely to be unduly delayed; (v) Stay of departmental proceeding should not be a matter of course; (vi) It is not in the interest of administration that accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceeding. It only serves the interest of guilty and dishonest; (vii) The result of the departmental proceeding during the pendency of criminal case cannot be said to be mala fide; (viii) If the criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceeding are held over at an early stage. 4. Here in the present case, the allegation against the petitioner, in the criminal case as also the departmental proceeding, is in regard to theft of weapon. In my opinion, the allegation against the petitioner is certainly of grave nature but same does not involve complicated question of law and fact. As has been often observed, while in the departmental proceeding, the standard of proof is one of preponderance of probabilities, in a criminal case the charge has to be proved by the prosecution beyond reasonable doubt. 5. It is well known that criminal cases drag on endlessly and they hardly reach a prompt conclusion and get bogged down on one or the other ground. 5. It is well known that criminal cases drag on endlessly and they hardly reach a prompt conclusion and get bogged down on one or the other ground. It has to be borne in mind that interest of administration and good governance demand that these proceedings are concluded expeditiously, charge of misconduct enquired into promptly and undesirable elements are thrown out swiftly. 6. From what has been stated above, I am of the opinion that the departmental proceeding initiated against the petitioner is not fit to be stayed till the conclusion of the criminal trial. 7. Mr. Teg Bahadur Singh then submits that the case of the petitioner is governed by statutory rule in this regard and the petitioners case may not be covered under the general principle enumerated above, but his rights shall be governed according to the statutory rule. In this connection Sri Singh has drawn my attention to Rule 847 of the Bihar Police Manual and submits that what to talk of trial the departmental proceeding has to be stayed till the conviction of the petitioner and the time allowed for appeal, expires. In support of his submission he has placed reliance on an unreported Division Bench judgment of this Court in the case of Bharat Sharma V/s. State of Bihar and others (C.W.J.C. No. 1489 of 1986) disposed of on 21.3.86 (Annexure-2). Same reads as follows : "Heard the learned advocate for the petitioner and the learned Government Pleader No. 5 and after hearing them we are disposing of this application at the admission stage itself as a very short question has been raised on the basis of rule 487 (sic 847) of the Police Manual, according to which a departmental proceeding is "not to be taken until the appeal against the order of conviction has been heard or the time allowed for appeal has expired". It was submitted by Mr. Kamlapati Singh that this inhibition was only applicable to the nature of cases referred to in rule 845, namely, where a police officer is involved in an offence of moral turpitude such as theft and perjury etc. No other provision was shown to us where a police officer is involved in a murder case. It was submitted by Mr. Kamlapati Singh that this inhibition was only applicable to the nature of cases referred to in rule 845, namely, where a police officer is involved in an offence of moral turpitude such as theft and perjury etc. No other provision was shown to us where a police officer is involved in a murder case. In that view of the matter, if the argument made on behalf of the State is accepted, then perhaps, it could be argued on behalf of the petitioner that no departmental proceeding can at all be initiated against a police officer facing a trial for murder or dacoity. In our opinion, therefore, the restrictions given in rule 845 are inclusive and not exhaustive. According to the scheme of these Rules we are of the view that unlike the provisions contained in the Bihar Service Code, the Police Manual contemplates the initiation of a departmental proceeding against an officer after his time for filing an appeal is over. Till that time he has only to remain under suspension. Since the authorities have passed a final order for termination of the petitioners services, for the view that we have taken in respect of the rules in question, we feel that the order (Annexure-5) cannot be sustained. Accordingly the order for removal of the petitioner from service stands quashed and as a result his position prior to passing of that order stands revived. This application is allowed accordingly". 8. Rule 847 of the Bihar Police Manual reads as follows : "847. Form of charge in such cases.The charge in proceeding under rules 845 and 846 shall be that the accused has been convicted, imprisoned or fined, as the case may be, for the offence concerned. Such proceedings shall not be taken until the appeal against the order of conviction has been heard or the time allowed for appeal has expired". 9. From a plain reading of Rule 847 of the Manual it is evident that the same provides for charge in cases of imprisonment and fine. Rule 845 of the Manual contemplates of a proceeding against a police officer imprisoned for an offence implying moral turpitude or for a serious breach of discipline and Rule 846 provides for initiation of a proceeding when a police officer is sentenced to fine. Rule 845 of the Manual contemplates of a proceeding against a police officer imprisoned for an offence implying moral turpitude or for a serious breach of discipline and Rule 846 provides for initiation of a proceeding when a police officer is sentenced to fine. In my opinion, when the proceeding is initiated against a police officer for his imprisonment or imposition of fine and in such circumstances Rule 847 of the Manual provides that such proceeding shall not be taken until the appeal against order of conviction has been heard or the time allowed for appeal has expired. In the present case petitioner is not being proceeded departmentaly on account of conviction. In that view of the matter, the reliance of the learned counsel on Rule 847 of the Manual is absolutely misconceived. 10. Now reverting to the authority of this Court in the case of Bharat Sharma (supra), same is clearly distinguishable. From the order of this Court quoted above, it is difficult to decipher the facts of the case excepting that the order for removal was passed on account of conviction of the petitioner in the said case and in that background the provision of Rule 847 was held to be applicable. This is not the position here and as such the authority relied on is of no assistance. 11. In the result I do not find any merit in this application and it is dismissed in limine.