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