Brij Kumar Singh vs The State Of Bihar & Ors on 14 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.166 of 2011
IN
Civil Writ Jurisdiction Case No. 4857 of 2010

Brij Kumar Singh, Son of Late Peyar Singh, resident of Village Pasaur, PS
Charpokhari, District Bhojpur
…. …. Appellant/s
Versus

1. The State of Bihar

2. The Director General-cum-Commandant General, Bihar Home Guard, Bihar,
Patna

3. The Additional Commandant General, Bihar, Patna

4. The Deputy Director General, Bihar Home Guard, Bihar, Patna

5. The Commandant, Bihar Home Guard, Head Quarter, Bihar, Patna

6. The Divisional Commandant, Bihar Home Guard, Bihar, Patna

7. The District Commandant, Bihar Home Guard, West Champaran, Bettiah
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Satyapal Singh, Advocate
For the Respondent/s : Mr. Niraj Kumar, AC to GA 10

CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 14-09-2017

Seeking exception to an order dated 09.11.2010 passed

by the learned Writ Court in CWJC No. 4857 of 2010 this appeal

has been filed under Clause 10 of the Letters Patent.

Appellant was working as a Company Commander in
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the Bihar Home Guard. On a First Information Report, Bettiah PS

Case No. 405 of 2005 was registered against him on 14.11.2005

for offence under Sections 376/511 and 354 of the Indian Penal

Code. However, while investigating the matter the police filed the

charge-sheet under Section 354 IPC.

The incident which led to filing of the aforesaid F.I.R.

was based on a complaint made by father of a small girl aged 4 to

5 years to the effect that on 13.11.2005 in the evening after 5 p.m.

the appellant instigated his daughter to come to his rented house

and thereafter committed various acts of commission and omission

which amounts to the aforesaid offence. Apart from lodging the

F.I.R. a departmental enquiry was conducted into the matter after

issuance of a charge-sheet on 20th December, 2005 and finally by

the impugned order passed on 01.01.2008, the appellant was

dismissed from service. Challenging the dismissal an appeal was

filed. The appeal was also dismissed on 15.05.2008 and thereafter

a memorial to the Commandant General was also rejected on

17.12.2009 and challenging this action the writ petition was filed.

The learned Writ Court after considering various

submissions that were made before it pertaining to violation of the

principles of natural justice in conducting of the departmental

enquiry, non-grant of opportunity in the departmental enquiry,
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perversity in the finding of the Enquiry Officer and the question of

criminal case and the departmental enquiry are going together,

rejected all the contentions and, therefore, this appeal.

The learned Senior Counsel appearing for the appellant

before us challenged the action of the department and the learned

Writ Court on the following grounds:-

(a) The enquiry was conducted in violation to the

statutory rues governing conduct of the

departmental enquiry, i.e. Bihar Government

Servants (Classification, Control and Appeal)

Rules, 2005. The procedure contemplated in the

Rules has not been followed inasmuch as after the

prosecutrix was examined and cross-examined the

Enquiry Officer took her inside a room and

recorded her statement behind the back of the

delinquent employee and his defence counsel and,

therefore, there is procedural violation.

(b) No Presenting Officer was appointed as

required under 2005 Rules. The Enquiry Officer

himself acted as a prosecutor and, therefore, the

enquiry stands vitiated. Examination of the

witnesses has not been done strictly in accordance
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with the requirement of the Rules and no

opportunity for giving defence statement was

afforded. It is also pointed out that there are

certain factual errors in the order passed by the

learned Writ Court inasmuch as the learned Writ

Court observed that the Enquiry Officer recorded

the statement of the mother of the prosecutrix

which was not correct and further the case diary of

the criminal case was produced before the Enquiry

Officer which also according to the learned

counsel for the appellant was not correct.

( c) Finally, the last ground canvassed before

us was that the appellant was acquitted in the

criminal case on the basis of compromise petition

whereas the learned trial court has come to

conclusion that the prosecution has failed to

establish the charges levelled against the

appellant and acquitted him.

On the grounds aforesaid, learned counsel representing

the appellant submitted that the order of the learned Writ Court is

unsustainable in the eye of law.

Learned counsel for the respondent-State has vehemently
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opposed the aforesaid submissions and argued that all procedural

formalities as required under the law was followed. Petitioner was

permitted to take assistance of an Advocate in the departmental

enquiry and he was ably assisted by his Advocate, namely, Shri

Madan Mohan Verma and once he was assisted in the departmental

enquiry by a legally trained person, ie. an Advocate, he could not

complain for procedural violation. As far as the complaint made

with regard to the Enquiry Officer examining the prosecutrix in a

room for her cross-examination is concerned, learned counsel

invites our attention to the finding in this regard and special

reasons that delayed the enquiry which was considered by the

learned Writ Court and argued that because of this no prejudice has

been caused to the petitioner and, therefore, on this ground

interference cannot be made.

We have heard learned counsel for the parties at length

and considered the rival contentions. The first and foremost ground

canvassed by learned counsel representing the appellant is that

after the examination-in-chief of the prosecutrix girl even though

she on her examination-in-chief implicated the appellant with

commission of the offence but in her cross-examination she

admitted that when she was playing, the ball fell on a plate from

which the appellant was eating something in the evening, when she
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went to take the ball the appellant scolded her, pulled her ear and

thereby he tortured the girl. It was stated that on this admission of

the prosecutrix no action could be taken as no misconduct is

committed. However, it is seen that the appellant was represented

in the departmental enquiry by an Advocate and the Advocate has

elaborately in detail grilled the small child by bombarding

questions and when the Enquiry Officer found her to be

uncomfortable in answering certain questions, in this situation he

thought it appropriate to take the child to a room and ask her

actually what has happened. The learned Writ Court has taken note

of this conduct of the Enquiry Officer in detail and has found that

if the Enquiry Officer considering the tender age of the girl, who

was overawed by cross-examination done by a lawyer, thought it

appropriate to find out the correct story from the girl, has not

committed any error when the story narrated by the girl is the same

story, i.e. recorded in the F.I.R. lodged immediately after the

incident had taken place on 14.11.2005. The story narrated by the

girl is supported by the statements of other witnesses including her

father on the same day. That being the peculiar position of the

case, we consider that the Enquiry Officer by taking the girl into a

room for her examination in order to elicit the correct story has not

committed any error. The principle of evidence taken behind the
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back of the accused and various other principles in this regard

cannot be applied in the peculiar facts and circumstances of this

case, particularly when the statement of the girl which has been

recorded behind the back of the appellant finds support from the

F.I.R. lodged and other material available on record. As far as the

other grounds with regard to procedural violation, namely, non-

appointment of Presenting Officer, non-grant of opportunity to

give defence statement etc. are concerned, we have taken note of

the fact that in this case the appellant was not participating in the

enquiry himself, on the contrary, the Enquiry Officer had permitted

him to take assistance of a legally trained person, i.e. an Advocate,

to defend himself in the enquiry, and he was ably assisted by an

Advocate who had cross-examined the witnesses at length in the

enquiry who had participated and during the conduct of the enquiry

at no stage did the Advocate to the appellant raise any grievance

with regard to any procedural irregularity nor did he seek any

opportunity to lead any further evidence or give any defence brief

etc. That being the position in this case, we are not inclined to

interfere into the matter on this ground.

As far as the acquittal of the appellant is concerned, a

perusal of the order of acquittal goes to show that the appellant was

acquitted because the complainant, her mother and her father, all
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stated in the court that as they have no grievance with the

petitioner and they did not have anything to say and it is because of

this reason that the compromise was recorded. But on the contrary,

in the departmental enquiry the prosecutrix and her father have

given evidence which is in conformity with the F.I.R. lodged and

thereafter the superior officer who had dealt with the issue who

was present in the spot when a law and order situation arose also

proved the arrest of the appellant. Taking note of all these factors

as the departmental proceedings have proceeded, we see no reason

to exonerate the appellant only because of his acquittal in the

criminal case.

The learned Writ Court has gone into detail of all these

aspects of the matter and relying upon the law laid down by the

Supreme Court with regard to prosecution of a delinquent

employee in a criminal case and in a departmental enquiry on the

judgments in the case of State of Rajasthan vs. B K Meena

[(1996) 6 SCC 417] and M Paul Anthony vs. Bharat Gold

Mines Ltd anr. [(1999) 3 SCC 769] has held that merely

because the petitioner is acquitted in the criminal case he cannot

seek benefit of the same and has rejected the writ petition.

Apart from considering the submission made before us,

we find that a detailed order was passed by the learned Writ Court
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meticulously analyzing all the aspects of the matter and we find no

error in the same warranting reconsideration.

Accordingly, the appeal stands dismissed.

(Rajendra Menon, CJ)

(Anil Kumar Upadhyay, J)

mrl

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 18/09/2017
Transmission N.A.
Date

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