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2009 DIGILAW 95 (JHR)

State of Bihar v. Ram Pravesh Pandit

2009-01-20

D.G.R.PATNAIK, R.K.MERATHIA

body2009
JUDGMENT These two appeals have been filed against the common judgment and order dated 29.8.2005, passed in CWJC No. 6329 of 1995 (P), and CWJC No. 6330 of 1995 P, whereby the writ petitions filed by the respondents-petitioners were allowed by quashing their order of dismissal dated 2.1.1992 and also the orders dated 11.1.1993 and 17.3.1993, passed by the appellate and revisional authority. 2. Counsel for the appellants submitted that the scope of enquiry in a criminal case and a departmental proceedings are different and therefore on the ground that the writ petitioners were acquitted in the criminal case, the orders of their dismissal could not have been quashed by learned Single Judge. He further submitted that the writ petitioners were acquitted in the absence of evidences and therefore it was not a case of clean and honorable acquittal. He also submitted that there was no procedural irregularity in the departmental proceedings and therefore the orders of dismissal could not have been quashed. He lastly submitted that in any event, award of 50% of the salary for the intervening period was on high side. 3. Learned counsel for the writ petitioners-respondents supported the impugned order. 4. According to the writ petitioners, they were deputed as constables along with others, including Sub Inspectors of Police, at Khajuri Police Post under Konch Police Station, District-Gaya ( Bihar), in the month of January, 1989 to maintain law and order. The area was effected by the Maobadi Communist Center ( MCC-an extremist group). On 12.3.1989 at 5 P.M., one Sidheshwar Singh along with Madan Upadhayay and Sitaram Dubey came there for duty. On the same day at about 10.30 P.M. while some of them were sleeping, they heard the alarm of the guard, raised by Santri Mandan Upadhyay. Sidheshwar Singh along with other constables became alert. Ram Pukar Singh, Sub-Inspector ( Arms) and Sidheshwar Singh took position. They heard 5/6 rounds of firing. Due to the dark night, they could not identify the persons, who were making firing, but they could understand that they were 15 to 20 members of M.C.C. group, who had come for snatching the rifles after attack. The constables opened fire in their defence. The extremists fled away. One Yogendra Choubey, the police personnel was found dead by gun-shot injury on his chest. The rifle was found near his dead body. The constables opened fire in their defence. The extremists fled away. One Yogendra Choubey, the police personnel was found dead by gun-shot injury on his chest. The rifle was found near his dead body. The dead body of one extremist-Suryadeo Ravidas was also found near the dead body of deceased-Yogendra Choubey. On 13.3.1989, Ram Pukar Singh, Sub Inspector ( Arms) lodged a fardbeyan, narrating the said incident, on the basis of which a case was registered being Konch P.S. Case No. 26 of 1989 dated 13.3.1989 for the offences under Sections 148, 149, 302 and 307 IPC and 27 of the Arms Act against 17 to 20 unknown extremists. Information was also given to higher authorities. But one Jamuni Devi, wife of the deceased-Suryadeo Ravidas made a separate fardbeyan before the Officer in charge, Konch Police Station on 13.3.1989 alleging therein that in the preceding night at about 10.30 to 11.00 P.M. she heard two rounds of firings near Khajuri Police Post. She also heard hulla towards the village, where Ram Lila was going on. Her husband Suryadeo Ravidas had left the house to know as to what was the matter. When he came out of his house, 2 to 3 constables caught him and told that he was a bad element and keeps gun and cargridges, though he denied such allegation, a constable took him away after giving slaps on her, which was witnessed by one Nagina Devi. In the night, she could not go to the school but in the morning, she narrated the aforesaid facts to Ram Naresh Ram, teachers, who told her that the police might have taken away her husband for enquiry and later on, he may be released but her husband did not return and later on she learnt that he has been shot dead. She could come to know the names of the assailants amongst the constables. On the basis of such F.I.R., a case was registered being Konch P.S. Case No. 28 of 1989 dated 13.3.1989 for the offence under Section 302 of the Indian Penal Code. She could come to know the names of the assailants amongst the constables. On the basis of such F.I.R., a case was registered being Konch P.S. Case No. 28 of 1989 dated 13.3.1989 for the offence under Section 302 of the Indian Penal Code. She also filed a complaint being Complaint Case No. 259 of 1989 on 18.3.1989 in the Court of Chief Judicial Magistrate, Gaya with respect to the said occurrence for the offences under Sections 148, 149, 302 and 307 of the Indian Penal Code naming the accused Uma Shankar Dubey, Officer-in-charge, Konch Police Station, Hare Narayan Singh, A.S.I. and other 18 police personnels of B.M.P.-3 including the writ petitioners, who were deputed at Khajuri Camp. Some persons were shown as witnesses. However, it was dismissed as she did not pursue the same. 5. During the pendency of the said criminal case, the Commandant B.M.P.-3, Govindpur, Dhanbad vide letter dated 15.3.1989 placed the writ petitioners under suspension on the ground of indiscipline, dereliction of duties etc. However, it was revoked on 10.11.1989 but the departmental proceedings against them continued. The writ petitioners filed their respective show causes denying the charges. The Enquiry Officer found that there was no sufficient evidence on the records to prove the charges of killing of Yogendra Choubey ( constable) and Suryadeo Ravidas by the charged employees. He further observed that it appears to be a case of extremist attack on the police personnel. However, in view of the pendency of the criminal case for the same incident, he observed that it was not desirable to give any specific finding, apart from the said observations/findings. In spite thereof, the Commandant BMP-3, Govindpur, Dhanbad mainly on the basis of the statement of Jamuni Devi that Suryadeo Ravidas was shot dead by some of the constables and that chargesheet having been submitted and sanction has been granted for prosecution against the charged employees, vide memos dated 15.7.1991 issued notices to the writ petitioners as to why they be not dismissed from service. Copy of the enquiry report was also enclosed with the notices. On receipt of replies, the Commandant B.M.P-3, Govindpur, Dhanbad issued the orders dated 2.1.1992 dismissing the writ petitioners from service on the ground that they have been found guilty of the charges. The writ petitioners preferred appeals, which were also dismissed. The Revisions Petitions were also rejected. Copy of the enquiry report was also enclosed with the notices. On receipt of replies, the Commandant B.M.P-3, Govindpur, Dhanbad issued the orders dated 2.1.1992 dismissing the writ petitioners from service on the ground that they have been found guilty of the charges. The writ petitioners preferred appeals, which were also dismissed. The Revisions Petitions were also rejected. Against these orders, the writ petitions in question were filed. Criminal Case registered at the instance of Jamuni Devi being Khajuri P.S. Case No. 28 of 1989 was numbered as Sessions Trial No. 117 of 2003/269 of 2003 after commitment. Learned 7th Additional District & Sessions Judge, Gaya vide his judgment dated 13.5.2004 held that the husband of the informant was murdered but none of the witnesses has stated anything against the accused persons. A finding was recorded that the prosecution has miserably failed to prove the charges against the accused persons and all the 13 accused persons were acquitted. The writ petitioners prayed for review of the order of punishment on the basis of the said judgment, which was rejected by the Commandant BMP-3, Govindpur, Dhanbad by his order dated 26.4.2005 on the ground that as they were found guilty of misdemeanor and have not behaved in the manner, expected of them as a government servant, the order of dismissal could not be recalled. It was also observed that writ petitioners have not got clean acquittal rather in the absence of any evidence and/or because of the fact that some of the witnesses have become hostile, they were acquitted. 6. Learned Single Judge, inter alia, held that though it was open to the disciplinary authority to differ with the findings of the enquiry officer but the reasons thereof were not indicated in the show causes issued to the writ petitioners. He further found that in the second show cause notice also, no finding was given by the disciplinary authority regarding the specific charges leveled/proved against the writ petitioners. Learned Single Judge further found as follows:- “ The disciplinary authority i.e. Commandant, BMP-3, Govindpur, Dhanbad, while passed the impugned orders of punishment all dated 2nd January, 1992, re-appreciating the evidence, failed to show as to how a case of “indiscipline”, “dereliction of duty” and “incompetence” was made out against any of the petitioners. Learned Single Judge further found as follows:- “ The disciplinary authority i.e. Commandant, BMP-3, Govindpur, Dhanbad, while passed the impugned orders of punishment all dated 2nd January, 1992, re-appreciating the evidence, failed to show as to how a case of “indiscipline”, “dereliction of duty” and “incompetence” was made out against any of the petitioners. There is nothing on the record nor any evidence was cited to suggest that any of the petitioners killed Yogendra Choubey ( constable) and one Suryadeo Ravidas, the alleged extremist. There is no evidence on record to suggest that a concocted story of encounter was made by one or other petitioner. There is no such finding, given by the Commandant, BMP-3, Govindpur, Dhanbad ( disciplinary authority).” Learned Single Judge also took into consideration the order of acquittal of the writ petitioners in the criminal case. After considering the several judgments of Supreme Court, learned Single Judge held as follows:-“ Now it is a settled law that the approach and objective of a criminal proceeding and the departmental proceeding are altogether distinct and different. But in an appropriate case, an accused can derive the benefits of the judgment of a trial court. In the case of Captain M. Paul Anthony Vrs. Bharat Gold Mines Ltd., reported in ( 1999) 3 SCC 769, the Supreme Court having noticed that the evidence, led in criminal case as well as in the domestic enquiry was one and same and the criminal court having acquitted the workman on the same very evidence, came to a definite conclusion that the finding to the contrary on the same evidence by the domestic enquiry would be unjust, unfair and oppressive.” 7. Taking into consideration the relevant aspects of the matter, learned Single Judge allowed the writ petitions and quashed the orders of dismissal. The appellants were directed to reinstate the writ petitioners with 50% of the arrears for the intervening period. The intervening period was to be counted as on duty for all other purposes. The appellants were to accept their joining, if they have not yet attained the age of superannuation and to pay them the arrears of 50 % of the salary for the intervening period. If one or other writ petitioners superannuated in the meantime, he was to be given the consequential retiral benefits, apart from 50% of the arrears of salary. 8. If one or other writ petitioners superannuated in the meantime, he was to be given the consequential retiral benefits, apart from 50% of the arrears of salary. 8. We do not find any reason to interfere with the impugned order. The charges in the departmental proceedings and the criminal case were identical. Criminal Court held that prosecution failed to prove the charges, against the accused persons. The enquiry officer did not find the writ petitioners guilty. No reasons for differing with the findings of the enquiry officer, were indicated to the writ petitioners in the show cause notices, issued by the disciplinary authority. No finding was recorded by the disciplinary authority as to how the writ petitioners were guilty of murder of constable Yogendra Choubey and Suryadeo Ravidas or of indiscipline, dereliction of duty, incompetence etc. Accordingly, these letters patent appeals are dismissed. However, no costs.