REPORTABLE

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

J U D G M E N T

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

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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

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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

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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:

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"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."

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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.

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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.

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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. (AFTAB ALAM)

New Delhi, August 21, 2008  

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