Ram Tawekya Sharma Vs.
State of Bihar & Ors. [2008] INSC 1403 (21 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5186 OF 2008 (Arising
out of SLP (C) No. 14257 of 2004) Ram Tawekya Sharma ...Appellant Versus State
of Bihar & Ors. ...
Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a Division Bench of the Patna High Court
dismissing the writ petition filed by the appellant.
3.
Background
facts in a nutshell are as follows:
Alleging that
appellant and his companions committed robbery on certain persons on
12.10.1991, they were chased by the local people and were apprehended. The
three accused persons were police constables. They were handed over to the
police and the money which was robbed by them was also recovered from their
possession. Police registered Case No. Budha Colony Police Case No.319 of 1991
for alleged commission of offences punishable under Sections 392 and 411 of the
Indian Penal Code, 1960 (in short the `IPC'). The departmental authorities
almost simultaneously initiated departmental proceedings. On 6.1.1992 a Writ
Petition filed by the appellant and the few others were listed before the Patna
High Court. The same was numbered as CWJC No. 7846 of 1991. Challenge was to
the initiation of the proceeding. In the meantime the criminal court had taken
cognizance. During the pendency of the departmental proceedings, the trial was
concluded and the appellant was acquitted by order dated 18.12.1992. The Writ
Petition was disposed of on the ground that the departmental proceeding has
since been concluded. The appellant was terminated by order dated 4.7.1992. The
internal remedy i.e. departmental appeal was availed. Three writ petitions were
filed by the three accused persons. Petitioner's Writ petition was numbered as
CWJC No. 5457 of 1994. All the three writ petitions were disposed of by a
common order on 22.5.1995. Two points were urged before the High Court. The
first was that in view of the acquittal, no order of termination could be
passed;
secondly, the copy of
the enquiry report was not supplied.
First point was
rejected by the High Court and so far as the second point is concerned the High
Court directed supply of the copy of the enquiry report. The copy was supplied
by the DIG and subsequently the order of dismissal was upheld.
Another writ petition
was filed, in which the stand taken was that in terms of Rule 847 of the Bihar
Police Manual (in short the `Manual') no departmental proceedings could have
been initiated till the time for preferring an appeal expires. Reliance was
placed on the view expressed in another Writ petition.
Learned Single Judge
who heard the matter took a different view and referred the matter to the
Division Bench.
The stand of the
appellant in the writ petition was that there was violation of Rule 828 (b) and
847 as there was no scope for dismissal unless informed in writing. Reliance
was also placed on a decision of this Court in Capt. M. Paulanthony v. Bharat
Gold Mines Ltd. & Anr. [1999 (3) SCC 679]. The High Court did not accept
the stand of the appellant and dismissed the writ petition. It was held that
the Rules in question form the part of the Manual and form part of the caption "Criminal
Prosecution". Referring to Rule 847 it was held that if the criminal case
has terminated in conviction, in that case the departmental proceedings shall
not be taken until the appeal or order of conviction has been heard, or the
time allowed of the appeal has expired. But there is nothing in the rules that
once there is an allegation against the police personnel for which a criminal
case has been instituted, then no departmental proceeding shall be instituted
till the criminal case is concluded. As regards the non-observance of certain
formalities in the departmental proceedings, the High Court noted that in the
earlier Writ Petition only two points were urged and there was no complaint of
the defects in the enquiry. As regards non-observance of the provisions
contained in Rule 828(b) of the Manual, the High Court noted that all the
requisite formalities have been observed and adequate opportunity of defending
himself was given to the appellant.
4.
In
support of the appeal learned counsel for the appellant reiterated the stand
taken before the High Court.
5.
Learned
counsel for the State on the other hand supported the impugned judgment of the
High Court.
6.
The
relevant rule reads as follows:
"844.
Superintendent to examine records of cases against police officers. - The
Superintendent shall go through the record of every case brought against a
Police Officer in the courts, and shall take/initiate departmental cognizance
of every criminal case in which a Police Officer is convicted or acquitted or
discharged (except when the case is declared false ) and record an order in
writing (see Rule 843).
845. Effect of
imprisonment - Every Police Officer imprisonment for an offence implying moral
turpitude, such as theft, perjury, etc., or for a serious breach of discipline
such as allowing a prisoner to escape, sleeping on sentry duty, etc.,shall be
proceeded against with a view to dismissal, and shall ordinarily be dismissed.
He shall receive his pay up to the date of ceasing to perform his duties.
846. Effect of a
fine- When a Police Officer is sentenced to fine by a criminal court, it is
within the Superintendent's discretion to draw up/initiate proceedings with a
view to dismissal.
847. From the charge
in such cases - The charge in proceedings under rules 845-and 846 shall be that
the accused has been convicted, imprisoned or fined, as the case may be, for
the offence concerned. Such proceedings shall not be taken until the appeal
against the order of conviction has been heard or the time allowed for appeal
has expired."
7.
As
the factual scenario described above goes to show, only two points were urged
before the high Court in the earlier writ petition, one of them related to the
effect of acquittal. The High Court had rejected the plea and the matter was
not carried forward. Other grievance related to non-supply of the copy of
enquiry report. As regards that, the High Court has directed supply of the copy
which has in fact been done.
8.
So
far as the points raised presently are concerned, there is no dispute that only
two points were urged in the earlier writ petition and as rightly noted by the
High Court the first point related to the effect of acquittal. Other point
found acceptance by the High Court and the first plea was rejected.
So far as the supply
of copy aspect is concerned it is not disputed that the copy was supplied. The
stands presently urged admittedly were not urged in the earlier writ petition.
There was no
challenge to the earlier direction regarding supply of copy only. That was done
on the basis of the decisions of this Court in Union of India & Ors. v.
Mohd. Ramzan Khan (AIR 1991 SC 471) and in Managing Director ECIL, Hyderabad v.
B. Karunakar [AIR 1994 SC 1074]. It is to be noted that Rules 845 and 847 only
relate to cases of conviction. It is significant to note that the appellant and
the two other employees who were proceeded against in departmental proceeding
had written to the authorities that they were not participating in the
departmental proceeding, till a decision is given by the criminal court. They
also declined to cross examine the witnesses produced in the departmental
proceeding. So far as the first writ petition is concerned, the stay order was
passed on 6.1.1992 i.e. much after 15.11.1991 when the appellant and the two
others had refused to participate in the departmental proceedings. As rightly
noted by the High Court, in the earlier Writ petition only two points were
urged and no complaint was made of any defect during the enquiry. Therefore,
the High Court rightly concluded the stand to be without substance. As regards
Rule 828(b) the High Court has categorically concluded that full opportunity
was granted and requisite procedure has been complied with.
Therefore it was held
that there was no violation of the principles of natural justice.
9. Above being the
position the appeal is without merit, deserves dismissal, which we direct.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(P. SATHASIVAM)
..........................................J.
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