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