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2012 DIGILAW 654 (PAT)

Shiva Kant Mishra v. State Of Bihar

2012-04-20

NAVIN SINHA

body2012
ORAL ORDER Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order dated 19.07.2010 passed by the Commandant, Bihar Military Police (8), Begusarai dismissing him from service pursuant to a departmental proceeding as affirmed in Appeal by the D.I.G., Bihar Military Police on 10.11.2010 and the Memorial dismissed on 10.02.2012 by the Director General of Police. 3. Learned counsel for the petitioner submits that the petitioner was exonerated of the essentially single charge by the enquiry officer. The respondents had jurisdiction to differ but no proper second show notice for a difference of opinion with grounds specified, was served before ordering dismissal on 19.07.2010. The second show cause notice dated 14.09.2009 did not meet the requirement of law and contained no grounds/materials on which the disciplinary authority proposed to hold that the inquiry report was erroneous. Reliance was placed on (2006) 9 SCC 440 (Lav Nigam v. Chairman & MD, ITI LTD.) urging that first a second show cause notice for a difference of opinion was required to be given and after it had been replied, a second show cause notice for punishment, if required, was to be served. 4. The next submission was that the show cause notice was additionally defective as it pre-judges issues holding the petitioner guilty. Relying on (2010) 13 SCC 427 (Oryx Fisheries Private Limited v. Union of India) it is submitted that the second show cause notice was an empty formality as the authority had already made up its mind to punish. The orders are therefore fit to be set aside. It was lastly submitted that the petitioner has been subjected to discrimination in punishment. P.Ws. 1 and 3 who were likewise part of the police set up during the incident and the same charges had been framed, also exonerated by the enquiry officer, have been given a lesser punishment for stoppage of one increment for one year equivalent to two black marks. 5. Counsel for the State submits that the orders are reasoned, also based on findings of the Sessions Court in the criminal trial. The nature of the defence sought to be urged was never taken before the authorities. The Court may not interfere on grounds not raised before the authorities to set aside orders on grounds of which the authorities had no occasion to apply their mind. 6. The nature of the defence sought to be urged was never taken before the authorities. The Court may not interfere on grounds not raised before the authorities to set aside orders on grounds of which the authorities had no occasion to apply their mind. 6. After suspension on 29.11.2008, a memo of charge was framed against the petitioner. It alleged that one Bullet Rai was named accused in Parbatta P.S. Case No. 35 of 2001 dated 20.04.2001 registered under Sections 307/34 Indian Penal Code and 25(1-b)A/26/35 of the Arms Act. The petitioner failed to identify him in Court. By declining identification he harmed the prosecution case leading to acquittal of a hardened criminal. By failing to depose lawfully, he had conducted himself in a manner unbecoming the discipline of a Police Officer, displaying lack of work culture and harming the prosecution. 7. The judgment of the Sessions Court in Sessions Trial No. 262 of 2006 disposed on 12.11.2008 reveals that first information report was lodged by the then officer-in-charge Prem Raj Chauhan on 19.04.2001 who never appeared to depose despite repeated opportunities. On the day of the Panchayat Elections vehicles were being checked. A blue colour Tata Sumo driven at a high speed was attempted to be stopped but eluded them. It was chased and firing was made at the police officials. Despite exchange of fire the accused abandoned the vehicle and fled. Fifteen bullets of .315 bore were recovered. The words Youth Congress Committee was written on the number plate of the vehicle. The villagers informed that the vehicle belonged to Bullet Rai who was travelling with six associates. The brother of the former was contesting for the post of Mukhiya. The movement was to capture the polling booth. The prosecution produced ten witnesses. The defence led no evidence. The petitioner was P.W.2. In his chief, he supported the allegations of the Sumo vehicle coming at high speed attempted to be stopped and chased when firing was exchanged. He stated that the investigating officer asked him no further questions. The vehicle was brought to the Police Station, he learnt that the vehicle belonged to Bullet Rai. He was not aware if anything was recovered from inside the vehicle. In his cross-examination, the petitioner denied having stated during investigation that he recognized Bullet Rai. In the Court Room he declined to identify Bullet Rai. The vehicle was brought to the Police Station, he learnt that the vehicle belonged to Bullet Rai. He was not aware if anything was recovered from inside the vehicle. In his cross-examination, the petitioner denied having stated during investigation that he recognized Bullet Rai. In the Court Room he declined to identify Bullet Rai. In his cross examination he admitted recovery of 15 bullets of .315 bore from the vehicle. 8. The Sessions Court at paragraph 19 of the judgment expressed its anguish that the prosecution witnesses who were none other than police officials and Home Guard had failed to give proper evidence before the Court leaving it with no option. Paragraph-21 of the judgment again expresses the anguish of the Court and notices the lapses of the prosecution in collection of evidence and during investigation. The Court was further constrained to observe that the manner in which the Home Guard and the police official have led evidence declining to identify the accused indicates that they were either trying to save the accused or that the investigation was done in a manner to benefit the accused. Cumulatively, the entirety of the matter indicated that neither did the police collect proper evidence in the case diary and the witnesses, the police officials had not stated the truth in Court to aid the accused. In the nature of the allegations when the criminals had fired at the police, it was unfortunate that the police was not willing to rise to the occasion and the witnesses and the investigating authorities were trying to act in a manner to aid the accused. The accused was acquitted by benefit of doubt. 9. The petitioner in his deposition acknowledges that he was one of the persons who attempted to stop the vehicle. He describes that it had dark glasses and that persons escaped from the vehicle. In his cross-examination he admits contrary to the statement in his chief that not only the police had fired but the accused has also fired on the police. Likewise in his cross examination he admits recovery of 15 bullets of .315 caliber after having denied it in his chief. 10. The importance and significance of the candid and terse comments of the Sessions Court for the manner in which the police officers had acted, has to be but noticed and given the importance it so rightly deserves. Likewise in his cross examination he admits recovery of 15 bullets of .315 caliber after having denied it in his chief. 10. The importance and significance of the candid and terse comments of the Sessions Court for the manner in which the police officers had acted, has to be but noticed and given the importance it so rightly deserves. The conduct of the petitioner in the Session Trial leaves nothing to imagination that it was aimed at benefiting the accused, highly derogatory of his commitment to the uniform. But the Court is satisfied that even if the objections of the petitioner are upheld, compliance by remand shall not lead to any fresh conclusion. 11. The inquiry officer was an Inspector of the police department itself. He notices in detail the evidence led by the prosecution, the evidence led by the defence and then arrives at the conclusion for exoneration without any discussion disclosing application of mind why he was satisfied to exonerate. It states that he has read the judgment of the Sessions Court also. Undoubtedly he was sailing in the same boat for which the trial court expressed its deep anguish. 12. In the case of Lav Nigam (Supra) paragraph-10 holds that the disciplinary authority, if it differs with the inquiry officer is bound to give a notice setting out tentative conclusions for a difference of opinion. After hearing the delinquent if dissatisfied he shall give a separate notice for punishment. The second show cause notice dated 14.09.2009 strictly speaking does not meet the requirement. The thrust of the opinion appears that Bullet Rai belonged to the same village as the petitioner. The fact is not disputed by the petitioner. 13. In his reply to the second show notice the petitioner at paragraph-2 took a defence that the Government lawyer had not briefed him properly before evidence and did not take interest in the case. It was but a indefensible desperate defence. 14. The language used in the second show cause notice is that he was guilty. The discussion in Oryx Fisheries (Supra) notices that the show cause notice had used the words “convincingly proved”, to hold that it was issued with a closed mind. 15. In a departmental proceeding the writ court exercising powers of judicial review is primarily concerned with the decision making process. The discussion in Oryx Fisheries (Supra) notices that the show cause notice had used the words “convincingly proved”, to hold that it was issued with a closed mind. 15. In a departmental proceeding the writ court exercising powers of judicial review is primarily concerned with the decision making process. The procedure followed must be fair and just especially if it is regulated by statutory provisions. Notwithstanding the same, the writ court can still interfere if the findings are perverse, gross mala fide are alleged or the conclusion are such which no reasonable person would have arrived at. Applying the standards of the common prudent man, with average intelligence, it requires no elaboration that the findings of the criminal court constitute ample evidence of the misconduct in service by the petitioner for the purposes of the departmental proceeding. 16. The earlier judicial view was that if there was procedural infirmity in the decision making process the final decision was vitiated and the order of punishment had to be set aside. The matter must be remanded to proceed afresh from the stage of irregularity. There can be no doubt that the second show cause notice did not expressly spell out why and how the conclusions in inquiry report were defective and how on basis of the same materials the disciplinary authority proposed to hold him guilty. Likewise the disciplinary authority may have better refrained from words holding the petitioner guilty. But it must be kept in mind that there shall have to be a difference in the use of language between a person trained in the administration and a person trained in the discipline of law. While the latter will be more circumspect in use of his language, the former may use words with an intention for administrative parlance which may be utilized and interpreted differently by a person trained in the law. 17. Without going into that nicesity, the emerging trend of judicial view is that it is not every infirmity in the decision making process which vitiates the final decision. Prejudice has to be shown. It has to be demonstrated in what manner the erroneous procedure has affected the delinquent and how if procedures had been followed he had a defence and may have persuaded the disciplinary authority to come to a different conclusion. 18. Prejudice has to be shown. It has to be demonstrated in what manner the erroneous procedure has affected the delinquent and how if procedures had been followed he had a defence and may have persuaded the disciplinary authority to come to a different conclusion. 18. In (2010) 5 SCC 349 (Union of India v. Alok Kumar) it was held :- “83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other ``de fcto” prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is some what relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.” 19. In (2010) 3 SCC 556 (Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Sinha) it was held :- “37. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows : (Haryana Financial Corpn) “44. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows : (Haryana Financial Corpn) “44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show „prejudice?. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” 38. We have examined the factual situation in this case elaborately to see as to whether any prejudice has been caused to the respondent. We are unable to accept the submissions of the learned counsel for the respondent that any prejudice has been actually caused. We are of the considered opinion that there has been no failure of justice….” 20. In (1993) 4 SCC 727 ( ECIL v. B. Karunakar) it was held :- “31… If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment….” 21. In (2010) 11 SCC 278 ( Indu Bhushan Dwivedi v. State of Jharkhand) it was held :- “24. However, every violation of the rules of natural justice may not be sufficient for invalidating the action taken by the competent authority/employer and the Court may refuse to interfere if it is convinced that such violation has not caused prejudice to the affected person/employee.” 22. The petitioner has alleged disparity in punishment with regard to similarly situated. 23. In (1998) 2 SCC 407 ( Director General of Police v. G. Dasayan) considering a claim for parity in punishment it was observed as follows:- “8…….. The third ground that the co-delinquents excepts the Head Constables were let off though the charges were identical, it is stated by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged along with the respondent, was compulsorily retired by the Disciplinary Authority. 10. We have perused the order of the Tribunal and the relevant documents. We find merit in the arguments of the learned counsel for the appellants. At the same time, we are of the view that as pointed out by the learned counsel for the respondent that a punishment of compulsory retirement in the case of the respondent as well would meet the ends of justice on the facts and circumstances of this case. 24. The Court is constrained to observe that not satisfied with the terse observations made by the Sessions Court for the manner in which those who were required to enforce and uphold the law in uniform had acted, the respondents even in the departmental proceedings conducted by a person in uniform persisted with the same. 24. The Court is constrained to observe that not satisfied with the terse observations made by the Sessions Court for the manner in which those who were required to enforce and uphold the law in uniform had acted, the respondents even in the departmental proceedings conducted by a person in uniform persisted with the same. Perhaps the conduct of the inquiry officer may itself be a matter for a departmental inquiry. A person in the police force is required to uphold and enforce the law. The duty is to apprehend and identify criminals ensuring that the law punishes them adequately. It will be indeed unfortunate if those required to enforce the law discharge duty in a manner to the contrary aiding the accused to escape the law. To hold that punishment of dismissal for such persons in the uniform was excessive shall be an understatement. It shall only abet others to follow suit sullying the image of the police and soiling the uniform. The Court does not find the punishment disproportionate or excessive. The petitioner by his wanton conduct mocked the entire criminal justice delivery system. To view the event in violation as a misdemeanor only shall be a gross subversion not commensurate to the enforcement of the law. 25. In a departmental proceeding, the findings are to be based on a preponderance of probability and not proof beyond reasonable doubt. The findings of the Sessions Court are more than sufficient materials to hold for guilt in the departmental proceeding. 26. If the respondents have given a lesser punishment to a co-delinquent with common allegations, the fact that they may not have been residents of the same village as the accused, cannot be sufficient justification for difference in punishment. 27. The Appellate order and the Memorial are reasoned warranting no interference. 28. The Court finds no merit in the writ application. It is dismissed. If the petitioner represents for parity in punishment, the respondents are required to take appropriate decision in law.