IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.105 of 2018
In
Civil Writ Jurisdiction Case No.11122 of 2014
Dhirendra Prasad Gupta, son of Late Chamru Shah, all residents of Village-
Kumarganj, P.O. Jehengira, PS – Sultanganj, District – Bhagalpur.
… … Appellant/s
Versus
1. The State of Bihar through Director General of Police, Government of Bihar,
Patna.
2. Director General of Police, Government of Bihar, Patna.
3. Deputy Inspector General of Police, Tirhut Range, District Muzaffarpur.
4. The Superintendent of Police, Sitamarhi, District Sitamarhi.
… … Respondent/s
Appearance :
For the Appellant/s : Mr. Rajeev Kumar Singh, Advocate
Mr. Mukesh Kumar Singh, Advocate
Mr. Gyanendra Kumar, Advocate
For the State : Mr. Saroj Kumar Sharma, A.C. to A.A.G.-3
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 03-12-2018
Re: I.A. No.5128 of 2018:
Heard Shri Rajeev Kumar Singh, learned counsel for
the appellant and Shri Saroj Kumar Sharma, learned Assistant
Counsel to learned Additional Advocate General-3 for the
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respondents.
The cause shown is sufficient. The delay condonation
application is allowed. The appeal shall be treated to be within
time.
Re: L.P.A. No.105 of 2018:
Heard Shri Rajeev Kumar Singh, learned counsel
for the appellant and Shri Saroj Kumar Sharma, learned
Assistant Counsel to Additional Advocate General-3, for the
respondents.
2. The appellant questions the judgment of the
learned Single Judge dated 5th December, 2017 whereby the
challenge raised to the termination order dated 19 th
September, 2013 was assessed and the learned Single Judge
declined to interfere on the ground that the appellant
petitioner had been unable to demonstrate any procedural
lapse during the enquiry. The learned Single Judge has also
further held that mere acquittal in the criminal case, which
was the basis of the incident on the strength whereof he had
been terminated, would not come to the aid of the appellant as
the disciplinary enquiry had been conducted and according to
the evidence on record, the disciplinary authority had rightly
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come to the conclusion that the appellant was involved in an
offence involving moral turpitude and therefore his
continuance in service was absolutely detrimental to the
department.
3. The learned Single Judge has also recorded
that the judgment of acquittal of the trial Court for the offence
under Section 377 I.P.C. did not amount to an honourable
acquittal, and in the disciplinary proceedings, the
preponderance of probabilities have been taken into
consideration, therefore, no case was made out for
interference under Article 226 of the Constitution of India.
4. Learned counsel for the appellant contends that
the learned Single Judge has not appreciated the fact that there
was a serious lapse in the procedure adopted by the
respondents, namely, that firstly, the enquiry was conducted
when the appellant was in judicial custody inside jail and the
victim Nitesh Kumar was not examined as a witness. Further,
it is submitted that the victim and his father, both, had
practically turned hostile in the criminal case resulting in the
acquittal of the appellant which was on the ground of no
evidence at all. It is further submitted that even the medical
examination of the victim was not carried out and it was on
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mere hearsay that the entire prosecution was conducted which
ended in a clean acquittal of the appellant which has been
erroneously treated to be not an honourable acquittal by the
learned Single Judge.
5. Learned counsel has then invited the attention
of the Court that even in the evidence which was brought
forth during the enquiry proceedings, there was no material to
establish that there was any witness to testify the actual
incident. Neither the father of the victim Binod Mahto nor the
Station House Officer who took the appellant into custody
were witnesses to the alleged incident, and in spite of the
statement having been recorded by the enquiry officer without
there being an element of any proof to establish the guilt
against the appellant, the enquiry officer proceeded to
conclude a finding merely on the basis of apprehensions
which does not fall within the realm of preponderance of
probabilities. Learned counsel, therefore, submits that not
only there was a procedural lapse but even otherwise the very
factum of the incident as alleged stood dissolved with the
acquittal of the appellant by the Trial Court, the judgement
whereof was brought on record through a supplementary
affidavit filed before the learned Single Judge.
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6. Learned counsel for the State, however, on the
other hand, submitted with the aid of paragraph 17 of the
counter affidavit filed before the learned Single Judge that the
enquiry had been conducted in the presence of the appellant
and he had full opportunity, but during cross-examination the
appellant failed to come out with any suggestion or any
question so as to demolish the statement of Binod Mahto the
father of the victim who had been examined during the
disciplinary proceedings. It is also submitted that as a matter
of fact, the Investigating Officer, who was a complainant, had
not been examined during the criminal trial, but his statement
was recorded during disciplinary proceedings that proves the
incident.
7. Additionally, it has been urged that the
appellant had an alternative remedy of filing an appeal before
the higher authority against the termination order and,
therefore, the writ petition even otherwise did not deserve to
be entertained on the ground of availability of alternative
remedy.
8. We have gone through the records and the
submissions raised.
9. The first issue is with regard to the question of
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lapse of any procedure. In this regard, we find that the victim
was not examined during the enquiry proceedings even
though the victim Nitesh Kumar had been examined during
the criminal trial. His father was examined during the
disciplinary proceedings where he did depose about his son
having informed him about the alleged incident, but the
victim who testified before the Criminal Court completely
denied the occurrence of any such incident. Not only this, the
father also was unable to substantiate the allegations and to
the contrary gave a vague statement while being orally
examined before the Trial Court.
10. On a comparison of these two statements, it is
evident that there was hardly any evidence with regard to the
incident except for the allegations made by the father. In such
a situation, the question of the possibility of the incident
having taken place and the probability thereof has to be
examined. A possibility does have options, but a probability
has to be based on some material that weighs in the mind of
the person to form an opinion which is more than a
possibility.
11. In the instant case, the defence taken by the
appellant in his reply to the show cause notices is clearly to
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the effect that the Station House Officer who had lodged the
complaint and had also initiated the prosecution, was bearing
animosity with him, and which fact stands substantiated by
the statement of the father of the victim before the Trial Court.
12. In our considered opinion, with the aforesaid
background and the evidence, it cannot be said that there was
a preponderance of the probability of the incident, and in the
absence of any concrete evidence, the conclusion drawn by
the enquiry officer resulting in its acceptance by the
disciplinary authority does not appear to be supportable in
law. The learned Single Judge, therefore, in our opinion,
committed an error in arriving at the abrupt conclusion of the
absence of any procedural flaw and in further arriving at the
conclusion that there was a preponderance of probability.
Neither the relevant witness namely the victim was examined
during enquiry nor did the learned Single Judge consider the
real impact of the trial Court judgement.
13. It is well settled that in the exercise of the
jurisdiction under Article 226 of the Constitution of India,
there cannot be a re-appreciation of the evidence, but it is
equally settled that if the enquiry proceedings and the
conclusion drawn by the disciplinary authority suffer from
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perversity, the same calls for an interference by this Court. In
our considered opinion, in the absence of any concrete
evidence, the conclusion drawn by the enquiry officer as well
as by the disciplinary authority suffered from an inherent
infirmity that touches perversity. Consequently, the learned
Single Judge was not justified in refusing to exercise
discretion in the matter.
14. Apart from this, there is one peculiar fact
which also ought to have been taken into account while
assessing the preponderance of probability, namely, once the
appellant had been acquitted and it was on record that he was
almost 57 years of age at the time of the incident, there was a
greater probability of his false implication and which aspect
does not appear to have been taken into account in spite of a
specific defence having been taken by the appellant in this
regard in the reply to the show cause notices. Non-
consideration of relevant material also amounts to perversity
which is also clearly evident from the facts of the present case
inasmuch as this defence of the appellant does not appear to
have been taken into consideration either by the enquiry
officer, the disciplinary authority or even by the learned
Single Judge.
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15. Consequently, for all the reasons stated
hereinabove, we find that the termination of the services of
the appellant suffers from the vice of procedural lapses as
well as an infirm decision which cannot be sustained in law.
The appeal, therefore, deserves to be allowed. We,
accordingly, set aside the judgment of the learned Single
Judge dated 05th December, 2017, allow the writ petition
being CWJC No.11122 of 2014, and quash the termination
order dated 19th September, 2013 passed by the Deputy
Inspector General of Police, Tirhut Range, Muzaffarpur.
16. It is evident from the affidavit on record that
the appellant was about 57 years of age at the time of the
incident and, therefore, by now he must have attained the age
of superannuation. Consequently, the appellant shall be
entitled to his full salary up to the date he attained his age of
superannuation and shall also be entitled to such
consequential post retiral benefits that may be admissible to
him in accordance with law. The entire payments to which he
may be found entitled and also entitled in future shall be
calculated by the respondents and an order be passed to that
effect within one month from the date of production of a
certified copy of this order. The payments due shall be
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released forthwith thereafter.
17. The appeal stands allowed accordingly.
(Amreshwar Pratap Sahi, CJ)
(Anjana Mishra, J)
Sunil/-
AFR/NAFR
CAV DATE N. A.
Uploading Date 04.12.2018
Transmission Date