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2003 DIGILAW 215 (JHR)

Satyendra Narain Singh v. State Of Bihar

2003-02-17

SUDHANSU JYOTI MUKHOPADHAYA

body2003
JUDGMENT S.J. Mukhopadhaya, J. 1. The petitioner when challenged the departmental proceeding initiated, show cause notice issued as contained in Annexures 3 and 5, has also challenged the order dated 5th April, 1989 (Annexure 6) whereby he was dismissed as also the appellate order dated 24th July, 1989 whereby the appeal was rejected. 2. The brief fact of the case shows that a departmental proceeding was initiated against the petitioner vide charge-sheet dated 25th July, 1988. Three sets of charges were levelled against him, the first charge related to illegal claim of travelling allowance; second charge related to giving wrong information relating to journey and the third charge related to theft of Rs. 2,000/- from the house of Superintendent of Police (Trainee) while he was posted as orderly. One may notice that one Sri S.R. Sabharwal was the S.R (Trainee) in whose house the petitioner was on duty and the allegation of theft was levelled against the petitioner by said Sri S.R. Shabharwal, S.P. In the circumstances, the charge-sheet having framed by Sri S.R. Sabharwal, S.R (Trainee), the petitioner has challenged the Initiation of proceeding vide charge-sheet dated 25th July, 1988. In respect to allegation of theft of Rs. 2,000/-, one FIR was also lodged against the petitioner. The said matter being pending for adjudication before a competent Court of law, petitioner has taken one of the grounds that the respondents should not have proceeded with departmental proceeding for same set of allegation based on same set of charges. 3. According to petitioner, he was posted as constable with Sri S.R. Sabharwal, the then S.R (Trainee) at Hazaribagh from 8th January, 1987 to 21st July, 1988 and performed the duties assigned to him with dedication and honesty. Sri S.R. Sabharwal used to live in one of the guest rooms of the I.P. Mess, Hazaribagh and the petitioner used to live in one of the rooms meant for the orderlies and servants. The cook, Ganesh Yadav used to live in the said room with petitioner. Sri S.R. Sabharwal used to proceed Patna a number of times, his family being at Patna. Many of the times the petitioner was also sent to Patna in connection with official and personal work of the aforesaid officer. On 21st July, 1988, the petitioner proceeded on leave granted by Sri S.R. Sabharwal and went to his village home. Sri S.R. Sabharwal used to proceed Patna a number of times, his family being at Patna. Many of the times the petitioner was also sent to Patna in connection with official and personal work of the aforesaid officer. On 21st July, 1988, the petitioner proceeded on leave granted by Sri S.R. Sabharwal and went to his village home. On 22nd July, 1988, the Sub-Inspector of Sadar R.S. Hazaribagh along with Havaldar visited his house and informed that Sri Sabarwal has lodged FIR against him alleging theft of Rs. 2,000/-. The petitioner was forced and the S.I. and Havaldar succeeded in extorting a sum of Rs. 4,000/- from the father and uncle of the petitioner. The petitioner was brought before Sri S.R. Sabharwal from where he was sent to jail but he was enlarged on bail by CJM. The case of petitioner is that he was not guilty but at the instance of Sri Sabharwal, he was illegally made an accused in a criminal case. 4. Counsel for the petitioner placed reliance on the enquiry report and the order of punishment to suggest that the other charges were not specific, not based on any evidence and were framed by Sri Sabharwal to punish the petitioner in one or other way. It was submitted that Sri Sabharwal being the complainant, he having lodged FIR, should not have passed the final order of dismissal. One or other decision of the Supreme Court was relied upon to suggest that the departmental proceeding based on biasness or where there is a likelihood of biasness it cannot be ground to inflict punishment. One of the grounds taken is that no charge is actually made out against the petitioner. In this respect, reliance was placed at para 13 of the enquiry report to suggest that the other witnesses accepted that the petitioner was given specific date for movement. 5. Counsel for the respondents submitted that the first two charges are not common to the allegation made in the FIR. According to him, even if the third charge is not taken into consideration, for first two charges, the petitioner having found guilty, the dismissal order is justified. 6. It will be injustice to the petitioner if I do not refer to one or other decision of the Supreme Court or Patna High Court as referred by the counsel for the petitioner. 6. It will be injustice to the petitioner if I do not refer to one or other decision of the Supreme Court or Patna High Court as referred by the counsel for the petitioner. He relied on AIR 1999 SC 1416 , M. Pal Anthony v. Bharat Gold Mines Ltd., to suggest that the departmental proceeding on identical facts and charges of a criminal case should not have proceeded simultaneously. However, such submission cannot be accepted as the case of petitioner is not similar to the case cited. In the case of M. Pal Anthony, (supra), for same set of charges and on the basis of the same evidence, the employee was acquitted in the criminal case. In this background, the Court interfered with the order of dismissal passed in pursuance of a departmental proceeding for same charges on the basis of same set of evidence. The case of Yoginath D. Bagde v. State of Maharashtra and Anr., reported in (1997) 7 SCC 739, is also not applicable in the case of petitioner. In this case, it cannot be alleged that there is no evidence on record or the finding of enquiry officer is perverse or unreasonable. 7. In the case of petitioner, Sri Sabharwal, S.P. was not the enquiry officer, nor the presenting officer. Therefore, the petitioner cannot derive the benefit of decision of the Patna High Court in Panchanan Kumar v. The Bihar State Electricity Board and Ors., reported in 1996 (1) PLJR 401 . The respondents having given opportunity to the petitioner to defend him in the departmental proceeding, the petitioner also cannot allege violation of rules of natural justice, nor can derive benefit of the decision of the Supreme Court in D.K. Yadav v. J.M.A. Industries Ltd., reported in (1993) 3 SCC 259 . 8. In the present case, the report submitted by enquiry officer being based on evidence, it not being otherwise perverse and there being nothing specific evidence of bias against Sri Sabharwal, I find no ground to interfere with the enquiry report. Further, I may mention that this Court cannot sit in appeal over a finding of fact submitted by the enquiry officer, till it is found that the report is not based on evidence or is perverse. 9. I find no merit in the writ petition. It is, accordingly, dismissed. Further, I may mention that this Court cannot sit in appeal over a finding of fact submitted by the enquiry officer, till it is found that the report is not based on evidence or is perverse. 9. I find no merit in the writ petition. It is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order, as to costs.