Ram Tawekya Sharma vs State Of Bihar & Ors

departmental authorities almost simultaneously initiated

departmental proceedings. On 6.1.1992 a Writ Petition filed

by the appellant and the few others were listed before the

Patna High Court. The same was numbered as CWJC No.

7846 of 1991. Challenge was to the initiation of the

2 proceeding. In the meantime the criminal court had taken

cognizance. During the pendency of the departmental

proceedings, the trial was concluded and the appellant was

acquitted by order dated 18.12.1992. The Writ Petition was

disposed of on the ground that the departmental proceeding

has since been concluded. The appellant was terminated by

order dated 4.7.1992. The internal remedy i.e. departmental

appeal was availed. Three writ petitions were filed by the three

accused persons. Petitioner's Writ petition was numbered as

CWJC No. 5457 of 1994. All the three writ petitions were

disposed of by a common order on 22.5.1995. Two points

were urged before the High Court. The first was that in view

of the acquittal, no order of termination could be passed;

secondly, the copy of the enquiry report was not supplied.

First point was rejected by the High Court and so far as the

second point is concerned the High Court directed supply of

the copy of the enquiry report. The copy was supplied by the

DIG and subsequently the order of dismissal was upheld.

Another writ petition was filed, in which the stand taken was

that in terms of Rule 847 of the Bihar Police Manual (in short

3 the `Manual') no departmental proceedings could have been

initiated till the time for preferring an appeal expires. Reliance

was placed on the view expressed in another Writ petition.

Learned Single Judge who heard the matter took a

different view and referred the matter to the Division Bench.

The stand of the appellant in the writ petition was that there

was violation of Rule 828 (b) and 847 as there was no scope

for dismissal unless informed in writing. Reliance was also

placed on a decision of this Court in Capt. M. Paulanthony v.

Bharat Gold Mines Ltd. & Anr. [1999 (3) SCC 679]. The High

Court did not accept the stand of the appellant and dismissed

the writ petition. It was held that the Rules in question form

the part of the Manual and form part of the caption "Criminal

Prosecution". Referring to Rule 847 it was held that if the

criminal case has terminated in conviction, in that case the

departmental proceedings shall not be taken until the appeal

or order of conviction has been heard, or the time allowed of

the appeal has expired. But there is nothing in the rules that

once there is an allegation against the police personnel for

4 which a criminal case has been instituted, then no

departmental proceeding shall be instituted till the criminal

case is concluded. As regards the non-observance of certain

formalities in the departmental proceedings, the High Court

noted that in the earlier Writ Petition only two points were

urged and there was no complaint of the defects in the

enquiry. As regards non-observance of the provisions

contained in Rule 828(b) of the Manual, the High Court noted

that all the requisite formalities have been observed and

adequate opportunity of defending himself was given to the

appellant.

4. In support of the appeal learned counsel for the

appellant reiterated the stand taken before the High Court.

5. Learned counsel for the State on the other hand

supported the impugned judgment of the High Court.

6. The relevant rule reads as follows:

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"844. Superintendent to examine records of cases against police officers. - The Superintendent shall go through the record of every case brought against a Police Officer in the courts, and shall take/initiate departmental cognizance of every criminal case in which a Police Officer is convicted or acquitted or discharged (except when the case is declared false ) and record an order in writing (see Rule 843).

845. Effect of imprisonment - Every Police Officer imprisonment for an offence implying moral turpitude, such as theft, perjury, etc., or for a serious breach of discipline such as allowing a prisoner to escape, sleeping on sentry duty, etc.,shall be proceeded against with a view to dismissal, and shall ordinarily be dismissed. He shall receive his pay up to the date of ceasing to perform his duties.

846. Effect of a fine- When a Police Officer is sentenced to fine by a criminal court, it is within the Superintendent's discretion to draw up/initiate proceedings with a view to dismissal.

847. From the charge in such cases - The charge in proceedings 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."

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7. As the factual scenario described above goes to show,

only two points were urged before the high Court in the earlier

writ petition, one of them related to the effect of acquittal. The

High Court had rejected the plea and the matter was not

carried forward. Other grievance related to non-supply of the

copy of enquiry report. As regards that, the High Court has

directed supply of the copy which has in fact been done.

8. So far as the points raised presently are concerned, there

is no dispute that only two points were urged in the earlier

writ petition and as rightly noted by the High Court the first

point related to the effect of acquittal. Other point found

acceptance by the High Court and the first plea was rejected.

So far as the supply of copy aspect is concerned it is not

disputed that the copy was supplied. The stands presently

urged admittedly were not urged in the earlier writ petition.

There was no challenge to the earlier direction regarding

supply of copy only. That was done on the basis of the

decisions of this Court in Union of India & Ors. v. Mohd.

7 Ramzan Khan (AIR 1991 SC 471) and in Managing Director

ECIL, Hyderabad v. B. Karunakar [AIR 1994 SC 1074]. It is to

be noted that Rules 845 and 847 only relate to cases of

conviction. It is significant to note that the appellant and the

two other employees who were proceeded against in

departmental proceeding had written to the authorities that

they were not participating in the departmental proceeding, till

a decision is given by the criminal court. They also declined to

cross examine the witnesses produced in the departmental

proceeding. So far as the first writ petition is concerned, the

stay order was passed on 6.1.1992 i.e. much after 15.11.1991

when the appellant and the two others had refused to

participate in the departmental proceedings. As rightly noted

by the High Court, in the earlier Writ petition only two points

were urged and no complaint was made of any defect during

the enquiry. Therefore, the High Court rightly concluded the

stand to be without substance. As regards Rule 828(b) the

High Court has categorically concluded that full opportunity

was granted and requisite procedure has been complied with.

8 Therefore it was held that there was no violation of the

principles of natural justice.

9. Above being the position the appeal is without merit,

deserves dismissal, which we direct.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (P. SATHASIVAM)

..........................................J. (AFTAB ALAM) New Delhi, August 21, 2008

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