TMI Blog2020 (10) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... . In exercise of the jurisdiction Under Article 142 of the Constitution, it is directed that the cessation from service will notionally take place on the Respondent completing minimum qualifying service. The direction of the High Court that the Respondent shall not be entitled to back wages is upheld. The retiral dues of the Respondent shall be computed and released on this basis within a period of three months - Appeal allowed. - HON'BLE JUDGES DR. D.Y. CHANDRACHUD AND INDIRA BANERJEE JJ. For the Appellant : Ashish Kumar, AAG and Milind Kumar, Adv. For the Respondents : Jasmeet Singh, Saif Ali, Pushpendra Singh Bhadoriya and Rushest Saluja, Advs. JUDGMENT DR. D.Y. CHANDRACHUD, J. This judgment has been divided into Sections to facilitate analysis. They are: A The appeal B Murder, trial and disciplinary enquiry C Submissions of counsel D Proof of misconduct in disciplinary proceedings E Findings of the disciplinary enquiry F The judgment of the Division Bench G Evidence in the disciplinary enquiry H On a 'preponderance of probabilities' I Judicial review over disciplinary matters J The effect of an acquittal K Conclusion A The appeal 1. This appeal is from a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chcraft did not yield result, leading to the death of the father. According to the prosecution, the Respondent bore a grudge towards the deceased due to this incident and had proclaimed earlier that he would kill him. 4. During the pendency of the criminal trial, a memorandum was issued on 18 January 2003 to the Respondent, followed by a charge-sheet, convening disciplinary proceedings under the provisions of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 19583. The imputations against the Respondent are extracted below, together with the familiar errors of grammar and translation: 1. That you on 13.08.02 from Station House Officer, P.S. Devgarh got one casual leave and one gazette leave sanctioned and left for your home, as per which you have to attend duty on 16.08.02 at A.M. but you did not attend the duty on time and attended the duty on 19.08.02 after remaining absent for 3 days, which is proved from record. 2. That even during the absence period you did not inform any officer about the reason of your absence and also not submitted any extension, which is proved from record. 3. That you at your residence on 15.08.02 during leave Shri Bhanwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the incident, the deceased had intimated the SHO at Khamnaur P.S. recording a threat to his life inter alia from the Respondent. The SHO registered a report Under Section 107 of the Code of Criminal Procedure and conducted proceedings. Although finding prima facie that there was enmity between the Respondent and the deceased, the Additional Sessions Judge declined to accept the evidence of PW21. While evaluating it in the context of the co-Accused, Lokesh, the Additional Sessions Judge noted: Thus, this evidence is prima facie ... that Accused Heem Singh has enmity with deceased Bhanwar Singh. Whether due to this enmity Heem Singh by conspiring with co-Accused persons by telling accident by jeep with aid of co-Accused Iqbal committed murder of Bhanwar Singh, on this point the observation of this Court is that Accused Lokesh Gaurva who was told as jeep driver by the witness Jodh Singh at the time of incident, against that Lokesh Gaurva by involving with Heem Singh at the time of incident hitting Bhanwar Singh by jeep such evidence is not given by PW-21 Jodh Singh. Additional Public Prosecutor on this point during cross-examination has not taken on record by seeking any clarificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uting his companion Iqbal brought iron rod from jeep and hit on forehead of Bhanwar Singh due to which he died on the spot. Thus, being an employee of disciplined department and having knowledge of law, he has committed such a grievous offence due to which image of police is blurred among public. In respect of said charge the prosecution has produced statements of Jodh Singh PW-1, Devi Singh PW-2, Shankar Singh PW-3, Hamer Singh PW-4, out of which Jodh Singh PW-1 in his statement at the time of incident has proved presence of himself, charged constable and tractor at the place of incident. Similarly, witness Shankar Singh PW-3 stated that he saw half an hour ago to the incident, the charged constable roaming near place of incident and his parked tractor. Similarly, witness Shri Hamer Singh PW-4 stated that there is prior enmity between charged constable and deceased Bhanwar Singh and prior to the death of father of charged constable, stating through witness to Bhanwar Singh that I will kill him by hitting with jeep or tractor and the incident of same kind is committed. Similarly, witness Shri Nanalal SHO Khamnaur PW-9 also in his statement against the charged constable on finding o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Inspector General of Police on 17 June 2005. A review before the State Government was dismissed on 29 August 2008. This led to the institution of writ proceedings before the High Court. A learned Single Judge of the High Court, by a judgment dated 1 February 2018, rejected the Writ Petition. In appeal, the judgment of the Single Judge was reversed by the Division Bench on 24 April 2019. By its judgment, the Division Bench directed reinstatement of the Respondent in service with consequential benefits but without back-wages. C Submissions of counsel 8. Mr. Ashish Kumar, AAG appearing on behalf of the Appellants submits that: (i) In a disciplinary enquiry involving a charge of misconduct, the test is whether the charge is established on a 'preponderance of probabilities' unlike in a criminal trial where the prosecution has to establish their case 'beyond reasonable doubt'; (ii) While exercising judicial review Under Article 226 of the Constitution against the findings in a disciplinary enquiry the court cannot reappreciate the evidence in the manner of an appellate court, and so long as the finding of misconduct is based on some evidence, no interference is warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnected with the murder of Bhanwar Singh; and (v) There is a minor charge against the Respondent of availing of three days extra casual leave without informing the superior officer. On this charge, it has been submitted that: (a) The grant of additional casual leave was approved upon his joining duties by the superior officer and the charge was duly modified to state that the approval was taken by misrepresenting facts; the Respondent was alleged to have concealed his involvement in the crime of murder; (b) If the charge of being involved in the murder is not established, this charge will cease to exist; and (c) Even assuming, without conceding, that the Respondent was guilty of taking casual leave without informing the superior, he was never guilty of such conduct in the past and the leave was taken because of the death of his brother-in-law. 11. On the basis of the above submissions, it has been urged that the findings in the departmental enquiry were perverse and have been correctly set aside by the Division Bench of the High Court. The Respondent has been out of service for 17 years and has (it has been urged) had to combat the social stigma of being terminated from service. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge Bench of this Court in Samar Bahadur Singh v. State of U.P. (2011) 9 SCC 94: Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. E Findings of the disciplinary enquiry 14. On 13 August 2002, while posted at Police Station Devgarh, the Respondent took a day's casual leave and one 'gazetted leave' and was to report back on 16 August 2002. It is admitted that he over-stayed his leave and joined on 19 August 2002. According to the Respondent, the additional leave was sanctioned after he joined back on duty. The State as his employer claims that the Respondent concealed the intervening circumstance of his involvement in the murder of Bhanwar Singh on 15 August 2002. Now it is important to note that the Respondent was placed under arrest on 16 September 2002 much after he had rejoined duty and was released on bail on 30 October 2002. Since the arrest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was also a co-Accused at the Sessions trial). The witness stated that Iqbal Khan had assaulted Bhanwar Singh with an iron rod when he was proceeding on a cycle near Bheel Basti Nala. Further, he stated that on the same day he had seen the Respondent about 300 feet away from the scene of offence going towards Nathdawara on a cycle. Also, about 300 feet away from the scene of offence, he found the tractor of the Respondent parked. Jodh Singh claims to be an eye-witness to the murder of Bhanwar Singh by Iqbal. In quite the same vein as he did during the criminal trial, during the course of his cross examination, Jodh Singh did not support his statements during the examination in chief. For the completeness of the record, it is necessary to extract the relevant part of the cross-examination which has been recorded in question and answer form in the enquiry proceedings: Cross through Pairokar Heem Singh Const. No. 642 1. Question - After 20 days of this incident Sarpanch Shri Pratap Singh called at his house and told that you shall get written name of Heem Singh and Lokesh also along with Iqbal, I refused then Sarpanch Ji told that you have to get name of Heem Singh written therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied arresting him and seizure of iron rod, jeep tractor used in the incident. Thus, from the aforesaid analysis the said charge is found as completely proved. The charged constable in defense of said charge has produced a copy of order passed by the Hon'ble Additional Sessions Judge Nathdwara in case related to said incident, after perusal of which it is found that the Hon'ble Court has not completely acquitted the said constable rather acquitted by giving him the benefit of doubt. From this it is clear that the Hon'ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred. F The judgment of the Division Bench 17. The Division Bench of the High Court observed that quite apart from the cross-examination, the examination-in-chief of Jodh Singh was not susceptible to the inference that the Respondent was even remotely connected with the murder. The imputation against the Respondent was that he had collaborated with Iqbal and Lokesh, and murdered Bhanwar Singh by running him over with a jeep. On this imputation, the High Court held that there is no evidence to establish that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting officer, whosever may be present, for cross-examination. The Presenting Officer shall be entitled to re-examine the witness on any point on which they have been cross examined but not on any new matter, without the leave of the Inquiring Authority, after the close of the prosecution evidence the Government Servant shall be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination-in-Chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reason in writing. The Inquiring Authority may also put such questions to the witnesses of the parties, as it thinks fit, in the interest of justice. An opportunity for hearing the arguments shall be given to the parties. Note: If the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity of the State, it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall, on being so informed, communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents. (6)(d). In case of joint departmental enquiry Under Rule 18 or in the case of enquiry Under Rule 16 of these rules, the Government Servant/s/fail/fails to appear without sufficient cause on the date fixed for the hearing of which he had the notice, the Inquiry Authority, may proceed with the enquiry in the absence of such Government Servant(s). (6)(A). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not including in the list given to the Government Servant or may itself call for new evidence or recall re-examine any witness and such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry for three clear days before the production of such new evidence, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges framed against the Government Servant and the statement of allegations furnished to him Under Sub-rule (2); (ii) his written statement of defence, if any; (iii) the oral evidence taken in the course of the enquiry; (iv) the documentary evidence considered in the course of the enquiry; (v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to inquiry; and (vi) a report setting out the findings on each charge and the reasons therefore. (9). The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other. G Evidence in the disciplinary enquiry 20. Elaborate as it is, the judgment of the Division Bench of the High Court ought to have scrutinized other aspects of the evidentiary record. These facets would have enabled the court to form, to use a term familiar to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moving 300 ft forward from there you saw Iqbal while killing Bhanwar Singh. Yes, it is true. 22. Evidence of PW2 Devi Singh - PW2 resiled from his statement in his entirety, and stated that he knows nothing about the death of Bhanwar Singh and admitted to whatever the police told him. 23. Evidence of PW3 Shankar Singh - PW3's evidence establishes that he met the Respondent on the date of the incident at the spot where his tractor was parked, along with another person whom he has not identified. Moreover, when he was coming back after 30/45 minutes, he saw the dead body of Bhanwar Singh. However, he states that he is not aware of a prior enmity between the Respondent and Bhanwar Singh, and is not sure of Heem Singh's involvement in the death of Bhanwar Singh. This is based on the following evidence: On 15.08.02 at around 5-6 hours I after shutting down my tea shop going towards fields from Kunthwa on my cycle. After going through fields going to Kotela, from behind Heem Singh Singh of Ravo ki Gudli who is a constable came on motorcycle and moved ahead me. I reached at Nala Bheel Basti Valley where near wall saw parked tractor of Heem Singh. Heem Singh went back from there t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of Nathu Sing on the same day Bhanwar Singh told me that Heem Singh has thrown me out of his house that you must not come in funeral of my father therefore, Bhanwar Singh did not come in funeral of Nathu Singh. On stating to Bhanwar Singh what Heem Singh said to me, Bhanwar Singh said that Heem Singh cannot kill me despite that I have lodged report in police. On the day when I heard about death of Bhanwar Singh in village at around 6-7 hours, at that time I guessed that Bhanwar Singh was killed by Heem Singh or through him. Today also saying same thing. 2. It is correct that doubt of murder of Bhanwar Singh by Heem Singh to me was due to land dispute between them and threat to kill Bhanwar Singh by Heem Singh through me and still have doubt. 25. Evidence of Bhanwar Singh (SHO, Devgarh) - His evidence shows that the Respondent did initially take leave for the death of his brother in-law. This is based on the following evidence: Shri Heem Singh No. 642 has filed an application requesting for one casual leave and one G.H. due to death of his brother-in-law in his family, on which I sanctioned...Thereafter, the said Constable after being present before me on 19.08.02 filed appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in his evidence that the police's image has become tarnished due to the suspicions raised on Heem Singh's involvement in the murder of Bhanwar Singh. This is based on the following evidence: On preliminary investigation conducted by me absence of constable No. 642 Shri Heem Singh on.. illegible.. and by conspiring with his companions committing murder of his uncle, due to which this act of constable the image of police among public has been blurred and ... by newspapers and belief on police became suspicious in public. 28. A complete review of the evidence indicates there was a pre-existing hostility between the Respondent and Bhanwar Singh. This hostility initially arose in the context of a land dispute. The hostility between them escalated exponentially after the death of the Respondent's father for which he blamed Bhanwar Singh. It evidently rose to an extent where the Respondent openly issued a death threat to Bhanwar Singh, leading Bhanwar Singh to file a police complaint against the Respondent apprehending a threat from the Respondent to his safety. As regards the incident leading to the death of Bhanwar Singh, the Respondent and his parked tractor were see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible, but not in the least probable the case is proved beyond reasonable doubt, but nothing short of that will suffice. (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)], where he formulated the principle thus: (p. 37) ... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. (emphasis supplied) The disciplinary enquiry was convened on a serious charge of misconduct - that the Respondent as a member of the police force had commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an eye-witness sufficiently proved the allegations; and (iii) Since the charge of murder stood proved, all the other charges stood established. 32. The Division Bench found fault with the Single Judge for not having seen the evidence of Jodh Singh in its entirety. A two-Judge Bench of this Court in P. John Chandy and Co. (P) Ltd. v. John P. Thomas (2002) 5 SCC 90, has held: For proper appraisal of evidence, a court must consider the whole statement. Cross-examination constitutes an important part of the statement of a witness and whatever is stated in the examination-in-chief, stands tested by the cross-examination. While embarking on the exercise the Division Bench re-appreciated the evidence in the manner of a first appellate court. This criticism of the decision is not unfounded. 33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a Rule of restraint. The second defines when interference is permissible. The Rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the judges' craft is in vain. J The effect of an acquittal 34. In the present case, we have an acquittal in a criminal trial on a charge of murder. The judgment of the Sessions Court is a reflection of the vagaries of the administration of criminal justice. The judgment contains a litany of hostile witnesses, and of the star witness resiling from his statements. Our precedents indicate that acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. In Southern Railway Officers Association v. Union of India (2009) 9 SCC 24, this Court held: 37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge. (emphasis supplied) In Inspector General of Police v. S. Samuthiram (2013) 1 SCC 598, a two-Judge Bench of this Court held that unless the Accused has an honorable acquittal in their crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term honourably acquitted . (Robert Stuart case [ILR (1934) 61 Cal 168], ILR pp. 188-89) 26. As we have already indicated, in the absence of any provision in the service Rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the Accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the Accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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