Satyavrat Bharti vs The State Of Bihar
2024 Latest Caselaw 5372 Patna

Patna High Court

Satyavrat Bharti vs The State Of Bihar on 13 August, 2024

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.8054 of 2021
     ======================================================
     Satyavrat Bharti, Son of Late Rajendra Prasad, Resident of Village-Nirsa,
     P.S.-Nirsa, District-Dhanbad (Jharkhand).

                                                                 ... ... Petitioner/s
                                        Versus
1.   The State of Bihar through the Director General of Police, Bihar, Patna.
2.   The Deputy Inspector General of Police, Munger Range Munger.
3.   The Superintendent of Police, Jamui.
4.   The Sub-Divisional Police officer, Jamui.
5.   The Station House Officer, Jamui.


                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :       Mr. Satya Prakash Parasar, Advocate
     For the Respondent/s   :       Mr. Ajay Kumar, AC to GP 4
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                           CAV JUDGMENT

Date : 13-08-2024

The petitioner has filed the instant writ petition under

Article 226 of the Constitution for following reliefs:-

"(i) For issuance of writ in the nature of certiorari for quashing of the order as contained in Memo No. 75 dated 11.1.2014 passed by the Superintendent of Police, Jamui whereby and where under the order of dismissal dated 9.1.2014 passed in Office Memo No. 77 by the Inspector General of Police, Munger Range Munger whereby and where under the order of dismissal has been passed and on the basis of the proceeding Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

conducted by invoking the power of Article 311 Sub-Article 2(b) of the Constitution of India without giving reason for same and entire finding is based on presumption and assumption.

(ii) For further quashing of the order dated 21.8.2014 passed in memo no. 3139 in appeal against the district order Case No. 708/2014 passed by the Inspector General of Police, Bhagalpur Range whereby the appeal preferred by the petitioner has been dismissed without application of mind.

(iii) For further quashing of Memo No. 114 dated 4.2.2020 passed by the Director General of Police, Bihar, Patna and communicated to the petitioner vide Memo No. 532 dated 26.2.2020 whereby and where under the petitioner's memorial for consideration of his dismissal order has been rejected.

                                      (iv)     For      further       direction      to   the
                                respondents           authority       to      reinstate   the
                                petitioner on the suitable post with all

consequential benefits as the petitioner has been exonerated/acquitted from the criminal charges vide judgment of acquittal and order dated 18.9.2019 passed in Sessions Trial No. 171/2016 by the A.D.J.-I, Jamui."

2. In the year 2013, the petitioner was posted as the S.H.O. of

Gidhaur P.S. in the District of Jamui. In connection with the Jamui Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

P.S. Case No. 95 of 2013 dated 6th May 2013 under Section

364A/34 of the Indian Penal Code (hereinafter, described as IPC

for short), the principal accused, namely, Munna Singh was

arrested for the purpose of investigation. One Jitendra Kumar, the

S.H.O. of Jamui P.S. filed an application before the jurisdictional

Magistrate on 20th June 2013 praying for police remand of the

above-named accused. As per the order of the learned Magistrate,

police remand was allowed but he was directed to be taken to

police custody at Gidhaur Police Station. After police remand,

when he was produced before the learned magistrate, there were

serious bodily injuries on the person of the said Munna Singh. He

was remanded to judicial custody. The Superintendent of the

Correctional Home, considering the seriousness of the accused

Munna Singh referred him to Patna Medical College and Hospital

(PMCH), Patna. Subsequently, he died in the hospital. Over the

said incident, there was a commotion causing serious violation of

law and order amongst the inmates of the said Correctional Home.

The relatives and the local people also raised protest in front of

Jamui P.S. against the police atrocities perpetuated upon the said

Munna Singh as a result of which, Mahila P.S. of Jamui was

damaged.

Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

3. Over the said incident, the petitioner was primarily held

responsible, he was suspended from service and a Memorandum of

Charge was framed and served upon the petitioner on 30th June

2013, under the signature of Superintendent of Police, Jamui.

4. In the instant writ petition, it is pleaded by the petitioner

that on the basis of a complaint submitted by the Chief Jailer of

Jamui Correctional Home, namely, Arvind Kumar Mishra, to the

effect that the said Munna Singh was brutally assaulted by the

S.H.O., Jamui, Superintendent of Police, his bodyguard and the

Station House Officer (S.H.O.) of Gidhaur police station and due

to merciless assault, he sustained serious injuries on his person and

finally, the said accused expired at PMCH, Patna, a case under

Section 302/34 of the Indian Penal Code was registered. On the

basis of the said complaint, police conducted an investigation and

on completion of investigation, charge sheet was submitted against

the petitioner under Section 304 of the IPC. However, the learned

Judicial Magistrate took cognizance of the offence under Section

302 and the other penal provisions under the IPC against the

petitioner. Contending, inter alia, that he was falsely implicated in

the case, the petitioner filed an application for Anticipatory Bail

but his prayer was rejected up to the Hon'ble Supreme Court. It is

contended by the petitioner that he was not concerned about Jamui Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

P.S. Case no. 95 of 2013 dated 06th May 2013. The investigation of

the case was conducted by the police officer attached to Jamui

police station. On the application of S.H.O., Jamui, the deceased

accused was taken to police remand, however, it was directed that

during the period of police remand, he would be confined to

Gidhaur P.S. As the case was not instituted by Gidhaur P.S., the

petitioner had no occasion to interrogate the said accused and the

allegation of causing bodily injuries to the accused is absolutely

false and the concocted. When the prayer for Anticipatory bail

filed by the petitioner was rejected, he surrendered before the court

of the learned Magistrate on 25th January 2016. On his surrender,

the petitioner was taken into custody and his prayer for Regular

Bail was also rejected.

5. It is also submitted by the petitioner that over the said

incident, a criminal case was registered against the petitioner under

Section 302 of the IPC bearing Sessions Trial No. 171 of 2016.

The petitioner faced trial before the learned Sessions Judge and on

conclusion of the trial, he was honorably acquitted vide judgment

dated 18th September 2019.

6. With regard to the departmental proceeding, it is submitted

by the petitioner that the departmental proceeding was initiated

against the petitioner on the basis of the institution of Town P.S. Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

Case No. 95 of 2013 and memorandum of charge was framed by

the Superintendent of Police, Jamui. As the petitioner, at the

relevant point of time, was pursuing for Anticipatory Bail, the

memorandum of charge contemplating departmental proceeding

was not served upon him. He did not get any opportunity to file his

statement of defense. In spite of the petitioner's genuine inability

to contest the departmental proceeding, the same was conducted,

violating the law laid down under Article 311(2)(b) of the

Constitution of India and he was dismissed from service with

effect from 11th January 2014. Against the said order of dismissal,

the petitioner filed a statutory appeal before the Inspector General

of Police, Bhagalpur which was also dismissed. The said order was

challenged by the petitioner by filing a Memorial on 12 th February

2015 before the Director of General of Police. The said Memorial

was also dismissed. Hence the instant writ petition.

7. The respondent no. 03 has filed a counter-affidavit,

denying all allegations made out by the petitioner in the writ

petition. It specifically pleaded on behalf of the respondent that the

Superintendent of Police, Jamui passed an order vide memo no. 75

dated 11th January 2014, dismissing the petitioner from service by

a well-reasoned and speaking order, keeping in view the

seriousness of the matter that custodial violence and atrocity by the Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

persons in authority is an example of blatant violation of Article 21

of the Constitution.

8. The petitioner, in turn, has filed a supplementary affidavit,

annexing the copy of the judgment dated 18th September 2019

passed in Sessions Trial No. 171 of 2016.

9. Mr. Satya Prakash Parasar, learned Advocate on behalf of

the petitioner submits, at the outset, that the petitioner was a Sub-

Inspector of Police, In-charge of Gidhaur P.S. in the district of

Jamui at the relevant point of time. The appointing authority of

Sub-inspectors of Police is the DIG of Police. The appointing

authority alone is the disciplinary authority, however, the

Memorandum of Charge was framed against the petitioner by the

Superintendent of Police, Jamui. Therefore, framing of charge is

bad in law and liable to be quashed.

10. I am not in a position to accept such submission made by

the learned Advocate on behalf of the petitioner on the ground that

the Government or the appointing authority or any authority to

which the appointing authority is subordinate or any other

authority empowered by general or special order of the

Government may-

"(a) institute a disciplinary proceeding against any Government Servant Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

(b) direct a disciplinary authority to institute disciplinary proceedings against any Government Servant on whom that disciplinary authority is competent to impose any of the penalties specified in Rule 14 under these Rules.

(2) A disciplinary authority, competent under Rule 14 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter, described as CCA Rules, 2005) also stipulates that a disciplinary authority, competent under the Rules to impose any of the penalties specified in clauses (i) to

(v) of Rule 14 of the CCA Rules, 2005, may institute disciplinary proceedings against any government servant for the imposition of any of the penalties specified in clauses [(vi) to

(xi)] of Rule 14 notwithstanding that such disciplinary authority is not competent under these Rules to impose any of the penalties under clauses [(vi) to (xi)] of Rule 14."

11. Thus, the Superintendent of Police be authorized by a

general order may formulate and serve memorandum of charge

upon a police officer under his administrative control and there is

no violation of statutory rules in initiating a departmental inquiry

against the petitioner.

Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

12. Learned counsel for the petitioner, Mr. Satya Prakash

Parasar further submits that the memorandum of charge was not

served upon the petitioner. The departmental proceeding was

conducted ex parte. The petitioner did not get any opportunity to

submit his written statement of defense in the departmental

proceeding.

13. Indisputably, the petitioner disappeared from his place of

posting, immediately after the institution of a criminal case under

Section 302 of the IPC against him. From his hideouts, he

repeatedly persuaded his prayer for Anticipatory Bail up to the

Hon'ble Supreme Court. When the prayer for the said Anticipatory

Bail was rejected by the Hon'ble Supreme Court, he surrendered

before the trial court on 25th January 2016 with a prayer for

granting Regular Bail. Therefore, from 30th June 2013, when the

memorandum of charge was directed to be served upon the

petitioner till 25th June 2016 he remained absent. Rule 17 (11) of

the CCA Rules, 2005 states as follows:-

(11). The inquiring authority shall, if the Government Servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

to a later date not exceeding thirty days, after recording an order that the Government Servant may, for the purpose of preparing his defence,-

(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list in sub-rule (3);

(ii) submit a list of witnesses to be examined on his behalf;

14. If the petitioner fails to appear, the inquiring authority is

empowered to proceed with the departmental inquiry ex parte. In

the instant case, the departmental proceeding was conducted ex

parte because of the fact that the petitioner was not traceable at

his place of posting or residence for a continuous period of two

and a half years. It is contended by the learned Advocate

appearing on behalf of the petitioner in the course of his argument

that disciplinary proceeding is bad in law in the teeth of Article

311(2)(b) of the Constitution of India.

15. Article 311(2)(b) of the Constitution states that a person

shall not be dismissed or removed or reduced in rank except after

an inquiry in which she/he has been informed of the charges and

given a reasonable opportunity of being heard in respect of those

charges.

Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

16. The petitioner due to his unauthorized absence from duty

after the institution of a criminal case could not be served with the

memorandum of charge. He did not take part in the departmental

proceeding, not for the fault of the disciplinary authority but due to

his unauthorized absence. He had chosen not to appear before the

disciplinary authority. Moreover, the record of this case shows that

against the order of dismissal, the petitioner preferred an appeal

and subsequently, a memorial against the appellate order.

Therefore, the allegations that he was not given the

chance/opportunity to represent himself in the departmental

proceeding, does not have any leg to stand.

17. Mr. Parasar next submits that the petitioner was acquitted

of the charge under Section 302 of the IPC in Sessions Trial No.

171 of 2016. It is submitted by him that when a departmental

proceeding and a criminal proceeding are based on the same set of

allegations and evidence and in criminal trial the accused is

acquitted, he is entitled to be exonerated from the departmental

proceeding. In Karnataka Power Transmission Corpn. Ltd. v. C.

Nagaraju, reported in (2019) 10 SCC 367, the Hon'ble Supreme

Court has held as under:-

"9. Acquittal by a criminal court would not debar an employer from exercising the Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 :

1996 SCC (L&S) 1455]

13. Having considered the submissions made on behalf of the appellant and Respondent 1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a criminal court does not preclude a departmental inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the criminal Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

court if the evidence that is produced in the departmental inquiry is different from that produced during the criminal trial. The object of a departmental inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a departmental inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the inquiry officer in the disciplinary proceedings, which is different from the evidence available to the criminal court, is justified and needed no interference by the High Court."

18. In the State of Karnataka v. Umesh, reported in (2022) 6

SCC 563, the Hon'ble Supreme Court observed as follows:-

"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction."

19. In Nirmal Krida & Samaj Prabodhan v. State of

Maharashtra, reported in 2022 SCC OnLine Bom 5901, the

Hon'ble Bombay High Court relied on the above-mentioned

decisions of the Hon'ble Supreme Court and came to the finding

that even where the FIR was quashed, the same could not have

been reasoned for the Petitioner-Trust to drop the disciplinary

proceeding. No presumption could have been drawn either by

respondent no. 2 or by the Tribunal that mere quashing of the FIR

would automatically entail dropping of disciplinary proceedings.

20. In the instant case, this Court is not supposed to

appreciate the evidence against the petitioner adduced in ex parte

departmental proceeding. The power of judicial review does not Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

permit this Court to act as a Court of Appeal. It is only to be

considered as to whether the charge against the delinquent

employee was proved on the basis of evidence on the principle of

preponderance of probabilities and whether the impugned orders

passed by the disciplinary authority, appellate authority, and the

Inspector General of Police in memorial against the appellate

authority are reasoned and speaking order.

21. It is true that in a departmental proceeding, the delinquent

employee did not take part. It is also true that at the time of the

decision taken by the disciplinary authority, the criminal case

instituted against him was not concluded. Since the petitioner

himself has produced the judgment passed in criminal trial

acquitting the accused/petitioner of the charge under Section 302

of the IPC, while exercising the power of judicial review, this

Court can very well look into the contents of the said judgment.

The learned Sessions Judge passed the order of acquittal in

Sessions Trial No. 171 of 2016, on the ground that the witnesses

on behalf of the prosecution turned hostile. It is also found from

the said judgment that the deceased made a dying declaration,

stating, inter alia, that he was tortured and mercilessly assaulted

by one Jitendra Kumar, the bodyguard of the Superintendent of

Police and the present petitioner. The said dying declaration was Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

marked as exhibit during the trial of the criminal case, however,

the learned Sessions Judge did not consider the said dying

declaration of the deceased due to the fact that the dying

declaration was not recorded in accordance with the relevant

provision of the statute.

22. Be that as it may, the said statement of the deceased

revealed a specific allegation against the petitioner that he

mercilessly assaulted the deceased while he was in the custody of

the Gidhaur P.S. The statement of the deceased corroborates the

finding of misconduct arrived at by the disciplinary authority and

affirmed by the appellate authority and reviewing authority. This

Court is absolutely conscious of the fact that this Court while

exercising the power of judicial review, has considered the

judgment passed by the learned Sessions Judge in Sessions Trial

No. 117 of 2016, as it was produced by way of a supplementary

affidavit by the petitioner. Petitioner's document suggests the

involvement of the petitioner in physically assaulting the deceased

and as a result of such assault, he died of shock and hemorrhage

caused by the injuries inflicted upon him.

23. In view of such circumstances, this Court does not

find any scope to quash the departmental order of punishment,

exercising its extraordinary jurisdiction under Article 226 of the Patna High Court CWJC No.8054 of 2021 dt.13-08-2024

Constitution. Accordingly, the instant writ petition is dismissed on

contest. There shall be no order as to cost.

(Bibek Chaudhuri, J)

Suraj Dubey/-

AFR/NAFR                NAFR
CAV DATE                31.07.2024
Uploading Date          13.08.2024
Transmission Date       13.08.2024