@JUDGMENTTAG-ORDER
Navin Sinha, J.@mdashHeard the learned Counsel for the petitioner and the learned Counsel for the State. The petitioner who was a Literate Constable in the Bihar Police was proceeded against in a regular departmental proceeding. The charge was that he alongwith one Danial Kumar, the Officer Incharge while posted at Sakhsohra Police Station in 1998 in the evening at about 6 pm, in an inebriated state caught hold of one Rinku Devi, a 18 years old girl, by her hand at the medicine shop where she had gone to buy medicines with her father. She was forcibly taken to the Police Station and locked in a room. Her father, the doctor at the shop and the shop-owner followed them to the Police Station. That the petitioner and the Officer Incharge then attempted to molest her in the Police Station. She was kept at the Police Station the whole night and the Officer Incharge only after taking three thousands rupees and obtaining an acknowledgement in writing released her the next day. A preliminary enquiry was held by the Sub-Divisional Police Officer when, the statement of the girl, the father of the girl, the doctor concerned, the shopowner and the Chaukidar was also recorded.
2. The memo of charges was then prepared based on this report submitted by the Sub-Divisional Police Officer.
3. The petitioner filed his show cause. His defence was that he was not present in the Police Station at the relevant date and time based on Station Diary Entries. The Enquiry Officer disbelieved the defence of the petitioner returning the finding that it stood proved that the 18 years old girl was forcibly taken to the Police Station and kept there the whole night. That her father and others who protested were assaulted at the Police Station. However, intoxication in absence of medical report and attempted rape could not be conclusively determined.
4. The Disciplinary Authority issued him a second show cause notice. The petitioner filed his reply to the same. The order of dismissal then came to be passed. He preferred an appeal against the order of dismissal. The appeal came to be rejected by order dated 27.11.2003.
5. Learned Counsel for the petitioner submitted that the memo of charges were based on a preliminary enquiry conducted by the Sub-Divisional Police Officer who recorded the statement of witnesses. Copy of the same was not given to the petitioner. Apart from this report there was no other material before the Enquiry Officer. The petitioner was not permitted to cross-examine the Sub-Divisional Police Officer. No dates were fixed for examination of defence witnesses. The order of dismissal has been passed by the Rural Superintendent of Police who was not the Disciplinary Authority of the petitioner. The Disciplinary Authority was the Senior Superintendent of Police, Patna. The Officer Incharge, Danial Kumar was still in service. It was lastly submitted that the punishment was disproportionate to the alleged offence and was required to be substituted by a lesser punishment.
6. Learned Counsel for the State opposing the application submitted that the petitioner deliberately abstained from participation in the proceedings despite due notice of the dates. The assertions in this regard of the counter affidavit are not denied in the rejoinder. The petitioner submitted his reply to the second show cause notice on merits before the Superintendent of Police (Rural) without objection or demur.
7. The jurisdiction of the writ Court to interfere with an order of punishment passed in a disciplinary proceeding would be restricted. Unless there be procedural impropriety of a nature which has caused prejudice to the petitioner and for which the petitioner had objected, resulting in his being unable to defend himself properly, there shall be no occasion for this Court to interfere with the findings arrived at in a departmental enquiry confirmed in appeal. If the petitioner has not been prejudiced, by any alleged procedural non-compliance, there would be no occasion for the writ Court to interfere. Mere alleged non-compliance of procedure per se shall not be sufficient for an order of remand. The Court was required to consider the entirety of the matter. The gravity of the offence would also have to be kept in mind. There would be no occasion for this Court to interfere by reassessment of facts unless the findings be perverse.
8. The memo of charges were based on the report of the Sub-Divisional Police Officer. The Sub-Divisional Police Officer recorded the statement of the victim girl, father of the victim girl, the doctor concerned, the shopkeeper and the Chaukidar. The petitioner filed his reply to the show cause. He did not object that in absence of the report of the Sub-Divisional Officer he was not able to respond or that he was being prejudiced. Yet he proceeded to contest the report of the Sub-Divisional Police Officer in his reply to the second show cause by alleging that it was based on hearsay. He filed a detailed show cause to the proposed punishment denying that he was intoxicated, denying that he was present in the Police Station, denying that he attempted molestation when he leveled allegations that the victim herself was of loose character etc. He subsequently also dealt with the statement of the doctor whose statement had been recorded by the Sub-Divisional Police Officer. It is therefore apparent that he has not been prejudiced in any manner by the non-supply of the investigation report of the Sub-Divisional Police Officer. Except for the, aforesaid statement in his reply to the second show cause there is nothing on record to suggest or demonstrate that any objection was taken by the petitioner during the course of the proceedings of prejudice to him or his inability to defend himself in absence of the report. The submission that he was not allowed to cross-examine the author of the preliminary report also does not impress this. Court. The petitioner never desired so as demonstrated by his absence from the proceedings and he cannot now be permitted to turn around and urge prejudice. In the absence of any request by the petitioner for examination of witnesses on his behalf, the question of any prejudice to him by non-examination of his alleged witness also does not arise.
9. At this stage, it is important to take note that it was the petitioner who had refused to participate in the proceedings. It does not lie with him to urge prejudice now.
10. Learned Counsel has relied upon a judgment of this Court in CWJC No. 9603 of 1996 (Indu Shekhar Singh vs. State of Bihar & Ors.) to submit that the order of dismissal passed by the Rural Superintendent of Police was not in accordance with law as he was subordinate to the Senior Superintendent of Police who was the Disciplinary. Authority. In the case of Indu Shekhar Singh (supra) the offence was absentation from duty. No proceeding worth name was held when the petitioner therein had been removed from duty. It was in this background that a Bench of this Court held that the order was without jurisdiction. The Rurat Superintendent of Police was an authority superior to the petitioner. There is no material on record to suggest that he was subordinate to the Senior Superintendent of Police to whom the order was also communicated in what is otherwise an administrative arrangement. Which in the facts of the present case do not appear to have caused any prejudice to the petitioner so as to require interference with the impugned order notwithstanding the nature of the allegations against him. The petitioner submitted his reply to the Superintendent of Police, Rural, on merits without any objection of lack of jurisdiction.
11. In the case of
12. On a conspectus of the law with regard to departmental proceedings as explained in several judgments it was held that the issue was one of prejudice. In the case of procedural provision the theory of substantial compliance could be urged but not so in a case of prejudice. That there could be no hard and fast rule and that it would fundamentally depend upon the facts of each case. It would be for the delinquent to demonstrate how he has been prejudiced by the non-compliance of statutory or procedural provisions. If he has not been prejudiced the question of interference would not arise. It was therefore held at Paras 23 and 24 as follows:--
"23. Thus, from a conspectus of the aforesaid decisions and different provisions of law noticed, we hold that the provision in Rule 55-A of the Rules for furnishing a copy of enquiry report is a procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non-observance and consequently the law laid down by the Constitution Bench in the case of ECIL to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing a copy of enquiry report under the statutory provisions and/or service rules.
"24. Turning now to the facts of the case on hand, it has to be seen whether by non-furnishing of the enquiry report the delinquent officer has suffered any prejudice. Undisputedly, after submission of enquiry report the State Government sent a show-cause notice to the delinquent pursuant to which he had shown cause and the disciplinary authority after considering the said show-cause reply, passed the order of dismissal. It is not the stand of the respondent that in the absence of the enquiry report he could not submit an effective show-cause reply before the order of dismissal was passed. Neither from the order passed by the Tribunal nor the High Court would it appear that the respondent had raised this point there that he could not file an effective show-cause reply it was complained that the delinquent had not been served with a copy of the enquiry report. From these facts, it is not possible to hold that the respondent has been prejudiced by non-furnishing of enquiry report."
13. In the present case, it has already been noticed above that the petitioner has not been prejudiced in any manner in filing his initial show cause or his reply to the second show cause and neither he has raised any objection before the Enquiry Officer when it is alleged that he failed to co-operate with the enquiry.
14. The submission that the punishment was disproportionate has only to be stated to be rejected. The allegations were fit for a criminal prosecution. The petitioner has got away lightly.
15. In
16. This Court on 15.3.2005 had queried from the respondents as to what happened ultimately to the proceedings initiated against Officer Incharge, Danial Kumar. Today more than two and half years later learned Counsel for the State submits that he has no instruction and prays for time to take instruction. This Court would not like to dwell upon the reason why the respondents are reluctant to disclose the fate of the Officer Incharge. The court draws its adverse inference. In any event, even if the Officer Incharge has not been visited with the consequence of the nature with which the petitioner has been visited with, that cannot bring any succor to the petitioner. In the state of uncertainty faced by this Court with regard to the accomplice of the petitioner, this Court considers it necessary to appropriately direct that the proceedings against the Officer Incharge, if pending, be completed within one month from the date of receipt and/or production of a copy of this order and report be filed in this Court. If the proceedings have been completed and the accomplice of the petitioner has had the benefit of the same this Court requires the respondents to re-examine the matter in the light of the order of this Court and the findings arrived at herein after issuance of notice to the concerned delinquent and hearing him.
17. In the present case, the Enquiry Officer has arrived at the finding that the petitioner and his accomplice caught hold of a 18 years old girl in the market place, brought her to the Police Station and kept her there for the whole night and that she was released next morning after obtaining acknowledgement in writing in the background of demand of illegal gratification. The fact that no conclusive evidence was available of his state of intoxication or attempt of molestation when his defence of absence from the Police Station has been disbelieved, satisfies this Court that there is no occasion for the Court to interfere with the order of punishment. The findings in a departmental proceeding are not to be tested on the touchstone of the Indian Evidence Act but on preponderance of probability. The petitioner was a member of a uniformed disciplined force. He was the protector. When the protector turned into the predator he deserves no sympathy.
18. This Court finds no merit in this writ application. The same is accordingly dismissed. Put up after one month after submission of the report.
