UNION OF INDIA & ORS. versus DALBIR SINGH on 21 September 2021

[2021] 7 S.C.R.

AUNION OF INDIA & ORS.

v.

DALBIR SINGH

(Civil Appeal No.5848 of 2021)

BSEPTEMBER 21, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law – Dismissal from service – The writ petitionerwas a General Duty Constable in the Central Reserve Police Force(CRPF) – A FIR was lodged against the writ petitioner u/ss. 302,C307 of IPC and s.27 of the Arms Act – He was accused of firingfrom his service revolver on Head Constable and DeputyCommandant, resulting in death of the Head Constable and injuringDeputy Commandant – Trial Court convicted the writ petitioner –However, the High Court acquitted him – Criminal Appeal filed byDthe State against the acquittal of the High Court was dismissed bythe Supreme Court – The writ petitioner was dismissed from serviceon account of conviction by the trial Court – However, as he wasacquitted by the High Court, the writ petitioner was reinstated –Another charge-sheet was issued on 25.02.2013 – The Commandant,the punishing authority returned the finding that writ petitioner hadEmisused his service weapon and was not entitled to be retained inthe disciplinary force – The order was affirmed by the appellateauthority and the revisional authority – In the writ petition filed,the High Court exercised power of judicial review set aside theorder of dismissal of the Competent Authority – On appeal, held:FThe High Court has exceeded its jurisdiction while exercising thepower of judicial review over the orders passed in the disciplinaryproceedings which were conducted while adhering to the principlesof natural justice – The burden of proof in the departmentalproceedings is not of beyond reasonable doubt as is the principlein the criminal trial but probabilities of the misconduct – TheGallegations in the chargesheet dated 25.2.2013 that the writpetitioner has fired from the official weapon is a reliable findingreturned by the Departmental Authorities on the basis of evidenceplaced before them – It is not a case of no evidence, which alonewould warrant interference by the High Court in exercise of powerH

of judicial review – It is not the case of the writ petitioner that therewas any infraction of any rule or regulations or the violation of theprinciples of natural justice – The best available evidence wasproduced by the appellants in the course of enquiry – The orderpassed by the High Court is not sustainable – Hence, the same isset aside and the order of punishment of dismissal passed as affirmedin appeal and revision stands restored.

Allowing the appeal, the Court

HELD: 1. This court observed that the High Court hasexceeded its jurisdiction while exercising the power of judicialreview over the orders passed in the disciplinary proceedingswhich were conducted while adhering to the principles of naturaljustice. [Para 17][808-G]

2. In the present case this court observed that the writpetitioner completed his fatigue duty at 10 am and then reportedfor duty at the Headquarters. In the later Charge Sheet dated25.2.2013, the departmental witnesses have uniformly deposedthat the noise of firing of 15-20 gun shots was heard around 11am on 11.4.1993. In fact, PW-6 Constable is the one whoimmobilized the writ petitioner when he was in the process ofloading another magazine in the self-loading rifle. Still further,PW-5 has deposed that 3-4 soldiers had taken the self-loadedrifle of the writ petitioner. Such self-loaded rifle is the one whichwas issued to the writ petitioner. The statement of some of thedepartmental witnesses was that they heard that the writpetitioner used his personal weapon but such part of thestatements is hearsay evidence. It was open to the writ petitionerto lead evidence that he was not using the official weapon but apersonal weapon to rebut the stand of the Department. [Paras 19and 20][809-A-D]

3. The burden of proof in the departmental proceedings isnot of beyond reasonable doubt as is the principle in the criminaltrial but probabilities of the misconduct. The delinquent such asthe writ petitioner could examine himself to rebut the allegationsof misconduct including use of personal weapon. In fact, thereliance of the writ petitioner is upon a communication dated1.5.2014 made to the Commandant through the inquiry officer.

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AHe has stated that he has not fired on higher officers and that hewas out of camp at the alleged time of incident. Therefore, a falsecase has been made against him. His further stand is that it was aterrorist attack and terrorists have fired on the Camp. None ofthe departmental witnesses have been even suggested about anyterrorist attack or that the writ petitioner was out of camp.BConstable PW-6 had immobilized the writ petitioner whereas allother witnesses have seen the writ petitioner being immobilizedand being removed to quarter guard. PW-5 deposed that 3-4soldiers had taken the Self-Loading Rifle (S.L.R.) of the writpetitioner in their possession. Therefore, the allegations in theCchargesheet dated 25.2.2013 that the writ petitioner has firedfrom the official weapon is a reliable finding returned by theDepartmental Authorities on the basis of evidence placed beforethem. It is not a case of no evidence, which alone would warrantinterference by the High Court in exercise of power of judicialreview. It is not the case of the writ petitioner that there was anyDinfraction of any rule or regulations or the violation of theprinciples of natural justice. The best available evidence had beenproduced by the appellants in the course of enquiry conductedafter long lapse of time. [Para 29][817-E-H; 818-A-B]

4. This court in conclusion in the present case found thatEthe order passed by the High Court is not sustainable. Hence,the same is set aside and the order of punishment of dismissalpassed on 21.12.1996 as affirmed in appeal and revision standsrestored. [Para 30][818-C]

State of Haryana & Anr. v. Rattan Singh (1977) 2 SCCF491 : [1977] AIR 1512; Union of India & Ors. v. P.Gunasekaran (2015) 2 SCC 610 : [2014] 13 SCR 1312;B.C Chaturvedi v. Union of India & Ors. (1995) 6 SCC749 : [1995] 4 Suppl. SCR 644; Management of TamilNadu State Transport Corporation (Coimbatore) LimitedGv. M. Chandrasekaran (2016) 16 SCC 16 : [2016] 4SCR 266; Ajit Kumar Nag v. General Manager (PJ),Indian Oil Corpn. Ltd., Haldia & Ors. (2005) 7 SCC764 : [2005] 3 Suppl. SCR 314; Noida EntrepreneursAssociation v. NOIDA & Ors. (2007) 10 SCC 385 :[2007] 1 SCR 892; Depot Manager, A.P. State RoadH

Transport Corporation v. Mohd. Yousuf Miya & Ors.(1997) 2 SCC 699 : [1996] 8 Suppl. SCR 941 – reliedon.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.5848 of2021.

From the Judgment and Order dated 11.04.2019 of the High Courtof Delhi at New Delhi in W.P. (civil) No.5844 of 2015.

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Ms. Madhvi Divan, ASG, R. Balasubramaniam, Sr. Adv.,Ms. Rekha Pandey, S. S. Ray, B. V. Balaram Das, Advs. for theAppellants.

Kaushal Yadav, E. V. Venugopal, Dr. Ajay Kumar, Nandlal KumarMishra, Ms. Yashoda Katiyar, Shafik Ahmed, Advs. for the Respondent.

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The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.

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2. The order dated 11.4.2019 passed by the Division Bench of theHigh Court of Delhi at New Delhi is the subject matter of challenge inthe present appeal whereby the order of dismissal passed by theCompetent Authority on 24.5.2014, appellate order dated 9.10.2014, andrevisional order dated 13.2.2015 were set aside. The respondent[1] washence directed to be reinstated and also was found entitled to arrears ofpay from the date of dismissal of service till the date he actually joins theduty.

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1 Hereinafter referred to as the ‘writ petitioner’

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1 Hereinafter referred to as the ‘writ petitioner’

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A3. The writ petitioner was a General Duty Constable in the CentralReserve Police Force (CRPF). An FIR No. 16/1993 was lodged againstthe writ petitioner for an offence under Section 302, 307 of the IndianPenal Code, 1860[2] and Section 27 of the Arms Act, 1959 when the writpetitioner was accused to have fired from his service revolver on HeadConstable Shri Harish Chander and Deputy Commandant Shri Hari SinghBresulting in the death of Shri Harish Chander and injuries to Shri HariSingh. The writ petitioner was convicted by the learned trial court on11.3.1996 and sentenced to life imprisonment. However, in appeal, theHigh Court of Punjab and Haryana acquitted him of the charges framedagainst him by giving benefit of doubt for the reason that 20 cartridgesCwere fired but only 7 empties were recovered whereas none of thebullets have been recovered. In view of the said finding, the High Courtdoubted the prosecution version as the Investigating Agency had failedto collect the evidence. Criminal Appeal No. 117 of 2006 filed by theState was dismissed by this Court relying upon the aforesaid finding ofthe High Court.D4. The writ petitioner was initially served with a chargesheet on27.6.1993. Article-I from the Statement of Article of charges readsthus:

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EARTICLE-I

That the said No.880957136 Ct. Dalbir Singh of D/36 BN CRPFwhile functioning as CT(GD) at BN HQ Fatehbad on 11.04.1993has committed an act of misconduct in his capacity as member ofthe force U/s 11(1) of CRPF Act, 1949 in that he has committedFmisconduct and disobedience of lawful orders and refused toperform fatigue duty between 0900 hrs. to 1000 hrs.”

5. In the statement of imputation of misconduct or misbehaviourin support of the above said Article of charge, it was stated that the writpetitioner returned to the Unit Headquarter after 60 days of earned leaveGon 10.4.1993 and was detailed for fatigue duty. Instead of performingsuch fatigue duty, the writ petitioner sat at the tailor shop. BHM HarishChandra asked for non-compliance of the orders, the writ petitionerhowever arrogantly misbehaved with the officers. It is admitted that theproceedings of the chargesheet were not concluded.H2 For short, the ‘IPC’

6. The writ petitioner was dismissed from service on 21.12.1996on account of his conviction in the criminal trial in pursuance of the FIRlodged. However, since he was granted benefit of doubt in appeal by theHigh Court and was subsequently acquitted, the writ petitioner wasreinstated vide order dated 20.7.2012 by the Deputy Inspector Generalof Police, CRPF, Patna. The following were the directions issued in theorder of reinstatement:

“(i) The punishment of dismissal from service awarded to No.880957136 CT/GD Dalbir Singh of 36BN, CRPF by disciplinaryauthority i.e. Commandant 36 BN vide order No. I-X-2/93-EC-IIdated 21.12.1996 is hereby set aside.

(ii) The appellant No. 880957136 CT/GD Dalbir Singh of 36BN,CRPF is reinstated into service immediate effect (i.e. from thedate of reporting in 36BN).

(iii) Since the appellant i.e. Ex. CT/GD Dalbir Singh has beenacquitted by criminal court, he shall not be punished departmentallyon the same charge or similar charge upon the evidence cited inthe criminal case Rule 27 (ccc) of CRPF Rules, 1955. If someother misconduct on other ground is made out then it is uptodisciplinary authority to decide whether any Departmental Enquiryis called for or not under Rule GOI decisions No. 5 below Rule 19of CCS (CCA) 1965.”

7. The writ petitioner was served with another chargesheet on27.8.2012. The said chargesheet was withdrawn when the writ petitionfiled by the writ petitioner was pending before the High Court of Delhi.Consequently, the Writ Petition (C) No. 6354 of 2012 was disposed ofon 21.11.2012, giving liberty to the appellant to charge sheet the writpetitioner. The relevant extract from the order reads as thus:

“15. However, learned counsel for the respondents submits thatthe issue pertaining to the departmental instructions with referenceto safe custody of arms and ammunition issued to force personnelwhile on duty, which was not the subject matter of a criminal trialcan always be gone into at a departmental inquiry. Learned Counselsubmits that an official arm and ammunitions issued to a forcepersonnel if found to be used in an incident resulting in the deathof force personnel would certainly require an accountability to begiven by the officer concerned who was issued the arm andammunitions.

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A16. The offending chargesheet which has been challenged in thewrit petition has been withdrawn by the respondents and thereforethe writ petition is disposed of as infructuous observing that itwould be permissible for the respondents to issue a chargesheetbut not in relation to the death of Battalion Havaldar Major HarishChander and the injuries caused to Dy. Comdt. Hari Singh. TheBrespondents would be entitled to hold an inquiry with respect tothe arm and ammunitions issued to the writ petitioner on day ofincident and seek petitioner’s accountability in relation thereto.”

8. It is thereafter that another chargesheet was issued on25.2.2013. Article I of the said chargesheet reads thus:C

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ARTICLE 1

That during his posting at Amritsar Punjab No. 880957136 CT/GD Dalbir Singh of 36, BN, CRPF, on 11.04.1993 without havingDthe order from Competent Officer fired from his service rifle (SLRButt No. 417 Body No. 150410-59), issued for his Govt. dutiesand hence misused the Government weapon and ammunition andcommitted remissness of duties. The abovesaid misconduct is aserious offence U/s 11(1) of CRPF Act read with Rule 27 ofECRPF Rules. Therefore, the constable while being the memberof the force has misused his service rifle and ammunition withouthaving the order of competent officer which is a serious offenceand misconduct and the same is also against the discipline andmanagement of the force and is also a punishable offence.”

F9. In the enquiry proceedings, the appellants had examined sixwitnesses. The first departmental witness was Havaldar DayamaiBanerjee (PW-1). He had deposed that on 11.4.1993 around 11 o’ clock,when he was doing camp maintenance work, he heard the sound offiring coming from the Head Office. He reached the place of firingwhich was 150 meters away from his place of work and found someGpersons were holding the writ petitioner. There is nothing substantial inthe cross-examination conducted. He had reached the place of firingafter the incident but had deposed about the time of incident of firing.

10. PW-2 Havaldar Bal Singh deposed that he heard the noise ofabout 15-20 fire shots at around 11 o’ clock on 11.4.1993. He reachedHthe place of occurrence and found Constable Dilip Mishra holding the writ petitioner as the latter was trying to free himself. He further deposedthat people around the writ petitioner were saying that the writ petitionerfired inside the camp by his personal weapon. Nothing material hascome out in the cross-examination. He also however reached the placeof firing after the incident but both the above witnesses have deposedregarding of timing of firing i.e., around 11 o’ clock.

11. PW-3 Havaldar Hetlal Deepankar was deployed for quarterguard duty from 10-12 o’ clock on 11.4.1993. Around 11 o’ clock, heheard the sound of gunfire. The firing stopped after 15-20 minutes. Thewrit petitioner was immobilized and was brought to the quarter guard.In the cross-examination, he stated that the firing took place at about11:45 and that the distance between the quarter guard and the HeadOffice was about 70-80 yards.

12. PW-4 Havaldar J.N. Tripathi was working in the mess of theHeadquarters, which was about 50 meters away from the place of firing.He also saw some persons immobilizing the writ petitioner. In the cross-examination, he stated that the firing was done by the writ petitionernear the Head Office. The location of firing may be 10 meters awayfrom the Head Office.

13. PW-5 Brij Kishore Singh deposed that at about 11:00 am, afterhe handed over his charge to the writ petitioner, who was the runner ofDeputy Commandant Shri Hari Singh as he wanted to have his food.He heard the sound of firing of about 15-20 bullets continuously while hewas eating his food. After the firing went off, he ran towards the controlroom and saw 4-5 people were holding the writ petitioner and ConstableDilip Mishra was also one of them. 3-4 soldiers had taken the Self-Loading Rifle (S.L.R.) of the writ petitioner in their possession. He alsostated that people were saying that the writ petitioner had fired from hispersonal weapon. He further deposed that the writ petitioner fired withhis weapon without any meaningful purpose inside the camp.

14. The most important witness is PW-6 Constable D.K. Mishra.He was performing the duty of runner on 11.4.1993. He heard firingwhen he had gone to get the documents signed by the officer in theHead Office. He saw from lope hole that the writ petitioner was in akneeling position and was firing. He caught hold of the writ petitionerfrom behind when he was changing the magazine. He was then handedover to guard commander and three sentries of quarter guard. In thecross-examination, he deposed that he caught the writ petitioner alone A

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Aand later the guard commander and three sepoys from quarter guardcame for help.

15. The Commandant, punishing authority, returned a findingconsidering the evidence led by the Department that the writ petitionerhas misused his service weapon and is thus not entitled to be retained inBthe disciplinary force. Such order was affirmed by the appellate and therevisional authority.

16. The High Court in the writ petition filed by the writ petitionerexamined the question as to whether service rifle was issued on 11.4.1993.The High Court found that on 27.6.1993, when the first chargesheetCwas issued, the writ petitioner was not on duty as he was to performfatigue duty but he sat in a tailor shop instead. The Court found that thiscontradicts with the charges mentioned in the chargesheet dated 25.2.2013that while on duty, he misused the ‘government weapon’. The HighCourt returned the following finding:

D“14. While it is possible that notwithstanding the pendency of acriminal case there could be disciplinary proceedings on the sameissue, in the present case it is seen that Respondents are confusedon facts. On the one hand, they charge-sheeted the Petitioner on27th June 1993 for not performing his fatigue duty but insteadsitting at a tailor’s shop, while nearly two decades later on 25thEFebruary 2013 they have charged him with misusing the serviceweapon issued to him. This contradiction in the stand of theRespondents is fatal to the disciplinary proceedings. The chargethat he misused the weapon issued to him falls flat if he was infact not even present at the place of duty. This was a case basedFon no evidence. The Respondents had to prove that the weaponwhich was issued to the Petitioner was misused by him. This ithas failed to do by credible evidence.”

17. We find that the High Court has exceeded its jurisdiction whileexercising the power of judicial review over the orders passed in theGdisciplinary proceedings which were conducted while adhering to theprinciples of natural justice.

18. The High Court failed to notice the fact that in the chargesheet issued on 27.6.1993, the allegation was that the writ petitionerfailed to perform his fatigue duty from 9 to 10 am and was disobedient tothe lawful orders issued to him. There was no allegation of use of a fireH

arm leading to death of Shri Harish Chander and injuries to Shri HariSingh.

19. The writ petitioner completed his fatigue duty at 10 am andthen reported for duty at the Headquarters. In the later Charge Sheetdated 25.2.2013, the departmental witnesses have uniformly deposedthat the noise of firing of 15-20 gun shots was heard around 11 am on11.4.1993. In fact, PW-6 Constable D.K. Mishra is the one whoimmobilized the writ petitioner when he was in the process of loadinganother magazine in the self-loading rifle. Still further, PW-5 Brij KishoreSingh has deposed that 3-4 soldiers had taken the self-loaded rifle of thewrit petitioner. Such self-loaded rifle is the one which was issued to thewrit petitioner.

20. The statement of some of the departmental witnesses wasthat they heard that the writ petitioner used his personal weapon butsuch part of the statements is hearsay evidence. It was open to the writpetitioner to lead evidence that he was not using the official weapon buta personal weapon to rebut the stand of the Department.

21. A three-Judge Bench of this Court in State of Haryana &Anr. v. Rattan Singh[3] was dealing with the issue of non-examination ofpassengers when the allegation against the conductor was non-issuanceof the tickets. This Court held that in a domestic enquiry, strict andsophisticated rules of evidence under the Indian Evidence Act may notapply and that all materials which are logically probative for a prudentmind are permissible. There is no allergy to hearsay evidence provided ithas reasonable nexus and credibility.This Court heldas under:

“4. It is well settled that in a domestic enquiry the strict andsophisticated rules of evidence under the Indian Evidence Actmay not apply. All materials which are logically probative for aprudent mind are permissible. There is no allergy to hearsayevidence provided it has reasonable nexus and credibility. It istrue that departmental authorities and Administrative Tribunalsmust be careful in evaluating such material and should not gliblyswallow what is strictly speaking not relevant under the IndianEvidence Act. For this proposition it is not necessary to citedecisions nor text books, although we have been taken throughcase-law and other authorities by counsel on both sides. The A

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Aessence of a judicial approach is objectivity, exclusion of extraneousmaterials or considerations and observance of rules of naturaljustice. Of course, fairplay is the basis and if perversity orarbitrariness, bias or surrender of independence of judgment vitiatethe conclusions reached, such finding, even though of a domestictribunal, cannot be held good. However, the courts belowBmisdirected themselves, perhaps, in insisting that passengers whohad come in and gone out should be chased and brought beforethe tribunal before a valid finding could be recorded. The ‘residuum’rule to which counsel for the respondent referred, based uponcertain passages from American Jurisprudence does not go toCthat extent nor does the passage from Halsbury insist on suchrigid requirement. The simple point is, was there some evidenceor was there no evidence — not in the sense of the technicalrules governing regular court proceedings but in a faircommonsense way as men of understanding and worldly wisdomwill accept. Viewed in this way, sufficiency of evidence in proofDof the finding by a domestic tribunal is beyond scrutiny. Absenceof any evidence in support of a finding is certainly available forthe court to look into because it amounts to an error of law apparenton the record. ………..”

22. This Court in Union of India & Ors. v. P. Gunasekaran[4]Ehad laid down the broad parameters for the exercise of jurisdiction ofjudicial review. The Court held as under:

“12. Despite the well-settled position, it is painfully disturbing tonote that the High Court has acted as an appellate authority in thedisciplinary proceedings, reappreciating even the evidence beforeFthe enquiry officer. The finding on Charge I was accepted by thedisciplinary authority and was also endorsed by the CentralAdministrative Tribunal. In disciplinary proceedings, the High Courtis not and cannot act as a second court of first appeal. The HighCourt, in exercise of its powers under Articles 226/227 of theGConstitution of India, shall not venture into reappreciation of theevidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed inthat behalf;

(c) there is violation of the principles of natural justice in conductingthe proceedings; (d) the authorities have disabled themselves from reaching a fairconclusion by some considerations extraneous to the evidenceand merits of the case; (e) the authorities have allowed themselves to be influenced byirrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary andcapricious that no reasonable person could ever have arrived atsuch conclusion; (g) the disciplinary authority had erroneously failed to admit theadmissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissibleevidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the HighCourt shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the samehas been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findingscan be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks itsconscience.”

23. In another Judgment reported as B.C Chaturvedi v. Unionof India & Ors.[5], it was held that the power of judicial review is meant A

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Ato ensure that the individual receives fair treatment and not to ensurethat the conclusion which the authority reaches is necessarily correct inthe eye of the court. The Judicial review is not an appeal from a decisionbut a review of the manner in which the decision is made. The Court isto examine as to whether the inquiry was held by a competent officer orwhether rules of natural justice are complied with. This Court held asBunder:- “12. Judicial review is not an appeal from a decision but a reviewof the manner in which the decision is made. Power of judicialreview is meant to ensure that the individual receives fair treatmentand not to ensure that the conclusion which the authority reachesCis necessarily correct in the eye of the court. When an inquiry isconducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was heldby a competent officer or whether rules of natural justice arecomplied with. Whether the findings or conclusions are based onDsome evidence, the authority entrusted with the power to holdinquiry has jurisdiction, power and authority to reach a finding offact or conclusion. But that finding must be based on someevidence. Neither the technical rules of Evidence Act nor of proofof fact or evidence as defined therein, apply to disciplinaryproceeding. When the authority accepts that evidence andEconclusion receives support therefrom, the disciplinary authorityis entitled to hold that the delinquent officer is guilty of the charge.The Court/Tribunal in its power of judicial review does not act asappellate authority to reappreciate the evidence and to arrive atits own independent findings on the evidence. The Court/TribunalFmay interfere where the authority held the proceedings againstthe delinquent officer in a manner inconsistent with the rules ofnatural justice or in violation of statutory rules prescribing the modeof inquiry or where the conclusion or finding reached by thedisciplinary authority is based on no evidence. If the conclusion orfinding be such as no reasonable person would have ever reached,Gthe Court/Tribunal may interfere with the conclusion or the finding,and mould the relief so as to make it appropriate to the facts ofeach case.

13. The disciplinary authority is the sole judge of facts. Whereappeal is presented, the appellate authority has coextensive power H

to reappreciate the evidence or the nature of punishment. In adisciplinary inquiry, the strict proof of legal evidence and findingson that evidence are not relevant. Adequacy of evidence orreliability of evidence cannot be permitted to be canvassed beforethe Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p.728 that if the conclusion, upon consideration of the evidencereached by the disciplinary authority, is perverse or suffers frompatent error on the face of the record or based on no evidence atall, a writ of certiorari could be issued.”

24. This Court in Management of Tamil Nadu State TransportCorporation (Coimbatore) Limited v. M. Chandrasekaran[6 ]held thatin exercise of power of judicial review,the Labour Commissionerexceeded his jurisdiction in reappreciating the evidence adduced beforethe enquiry officer and in substituting his own judgment to that of thedisciplinary authority. It was not a case of no legal evidence. The questionas to decision of the disciplinary authority of dismissing the respondent isjust and proper could be assailed by the respondent in appropriateproceedings. Considering the fact that there was adequate materialproduced in the departmental enquiry evidencing that fatal accident wascaused by the respondent while driving the vehicle on duty, the burden toprove that the accident happened due to some other cause than his ownnegligence was on the respondent. The doctrine of res ipsa loquitursquarely applies to the fact situation. The Court held as under:

“11. The respondent on the other hand contends that theCommissioner has applied the well-settled legal position that therecan be no presumption of misconduct by the employees. That,charge must be proved by the Department during the inquiry. Non-examination of the material witnesses such as eyewitnessespresent on the spot, conductor and passengers, travelling on thesame bus was fatal. For, it entails in not substantiating the chargesagainst the respondent and failure to discharge the initial onusresting on the Department to prove the charge as framed.According to the respondent, no fault can be found with the tangiblereasons recorded by the Commissioner as noticed by the SingleJudge (reproduced above); and resultantly, the conclusion of theCommissioner of not according approval to the order of dismissal 6 (2016) 16 SCC 16

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Ais just and proper. It is submitted that the Single Judge was justifiedin allowing the writ petition preferred by the respondent and issuingdirection to the appellant to reinstate him with back wages andcontinuity of service and all attendant benefits accrued to him.”

25. This Court in Ajit Kumar Nag v. General Manager (PJ),BIndian Oil Corpn. Ltd., Haldia & Ors.[7] held that the degree of proofwhich is necessary to order a conviction is different from the degree ofproof necessary to record the commission of delinquency. In criminallaw, burden of proof is on the prosecution and unless the prosecution isable to prove the guilt of the accused “beyond reasonable doubt”, hecannot be convicted by a court of law. In a departmental enquiry, on theCother hand, penalty can be imposed on the delinquent officer on a findingrecorded on the basis of “preponderance of probability”.It was held asunder:

“11. As far as acquittal of the appellant by a criminal court isconcerned, in our opinion, the said order does not preclude theDCorporation from taking an action if it is otherwise permissible. Inour judgment, the law is fairly well settled. Acquittal by a criminalcourt would not debar an employer from exercising power inaccordance with the Rules and Regulations in force. The twoproceedings, criminal and departmental, are entirely different. TheyEoperate in different fields and have different objectives. Whereasthe object of criminal trial is to inflict appropriate punishment onthe offender, the purpose of enquiry proceedings is to deal withthe delinquent departmentally and to impose penalty in accordancewith the service rules. In a criminal trial, incriminating statementmade by the accused in certain circumstances or before certainFofficers is totally inadmissible in evidence. Such strict rules ofevidence and procedure would not apply to departmentalproceedings. The degree of proof which is necessary to ordera conviction is different from the degree of proof necessaryto record the commission of delinquency. The rule relating toGappreciation of evidence in the two proceedings is also notsimilar. In criminal law, burden of proof is on the prosecutionand unless the prosecution is able to prove the guilt of theaccused “beyond reasonable doubt”, he cannot be convictedby a court of law. In a departmental enquiry, on the other H7 (2005) 7 SCC 764

hand, penalty can be imposed on the delinquent officer on afinding recorded on the basis of “preponderance ofprobability”. Acquittal of the appellant by a Judicial Magistrate,therefore, does not ipso facto absolve him from the liability underthe disciplinary jurisdiction of the Corporation. We are, therefore,unable to uphold the contention of the appellant that since he wasacquitted by a criminal court, the impugned order dismissing himfrom service deserves to be quashed and set aside.”

(Emphasis Supplied)

26. This Court in Noida Entrepreneurs Association v. NOIDA& Ors.[8 ]held that the criminal prosecution is launched for an offence forviolation of a duty, the offender owes to the society or for breach ofwhich law has provided that the offender shall make satisfaction to thepublic, whereas, the departmental inquiry is to maintain discipline in theservice and efficiency of public service. It was held as under:

“11. A bare perusal of the order which has been quoted in itstotality goes to show that the same is not based on any rationalfoundation. The conceptual difference between a departmentalinquiry and criminal proceedings has not been kept in view. Evenorders passed by the executive have to be tested on the touchstoneof reasonableness. [See Tata Cellular v. Union of India [(1994) 6SCC 651] and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004)2 SCC 130] .] The conceptual difference between departmentalproceedings and criminal proceedings have been highlighted bythis Court in several cases. Reference may be made to KendriyaVidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004SCC (L&S) 1011] , Hindustan Petroleum Corpn. Ltd. v. SarveshBerry [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605] and UttaranchalRTC v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S)1341] .

“8. … The purpose of departmental inquiry and of prosecutionare two different and distinct aspects. The criminal prosecutionis launched for an offense for violation of a duty, the offenderowes to the society or for breach of which law has providedthat the offender shall make satisfaction to the public. So crimeis an act of commission in violation of law or of omission of 8 (2007) 10 SCC 385

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Apublic duty. The departmental inquiry is to maintain disciplinein the service and efficiency of public service. It would,therefore, be expedient that the disciplinary proceedings areconducted and completed as expeditiously as possible. It isnot, therefore, desirable to lay down any guidelines as inflexiblerules in which the departmental proceedings may or may notBbe stayed pending trial in the criminal cases against thedelinquent officer. Each case requires to be considered in thebackdrop of its own facts and circumstances. There would beno bar to proceed simultaneously with departmental inquiryand trial of a criminal case unless the charge in the criminalCtrial is of grave nature involving complicated questions of factand law. Offense generally implies infringement of public duty,as distinguished from mere private rights punishable undercriminal law. When the trial for a criminal offense is conductedit should be in accordance with proof of the offense as per theevidence defined under the provisions of the Indian EvidenceDAct, 1872 [in short ‘the Evidence Act’]. The converse is thecase of departmental inquiry. The inquiry in a departmentalproceeding relates to conduct or breach of duty of thedelinquent officer to punish him for his misconduct definedunder the relevant statutory rules or law. That the strict standardEof proof or applicability of the Evidence Act stands excluded isa settled legal position. … Under these circumstances, what isrequired to be seen is whether the departmental inquiry wouldseriously prejudice the delinquent in his defense at the trial in acriminal case. It is always a question of fact to be consideredin each case depending on its own facts and circumstances.”F

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27. This Court in Depot Manager, A.P. State Road TransportCorporationv. Mohd. Yousuf Miya & Ors.[9] held that in the disciplinaryproceedings, the question is whether the respondent is guilty of suchconduct as would merit his removal from service or a lesser punishment.It was held as under:G

“7. …There is yet another reason. The approach and the objectivein the criminal proceedings and the disciplinary proceedings isaltogether distinct and different. In the disciplinary proceedings,the question is whether the respondent is guilty of such conduct H9 (1997) 2 SCC 699

as would merit his removal from service or a lesser punishment,as the case may be, whereas in the criminal proceedings thequestion is whether the offences registered against him under thePrevention of Corruption Act (and the Penal Code, 1860, if any)are established and, if established, what sentence should be imposedupon him. The standard of proof, the mode of enquiry and therules governing the enquiry and trial in both the cases are entirelydistinct and different. Staying of disciplinary proceedings pendingcriminal proceedings, to repeat, should not be a matter of coursebut a considered decision. Even if stayed at one stage, the decisionmay require reconsideration if the criminal case gets undulydelayed.” (Emphasis Supplied)

28. Mr. Yadav, learned counsel for the writ petitioner has submittedthat during the pendency of the writ petition before the High Court, theappellants were given opportunity to produce the registers of theentrustment of S.L.R. to the writ petitioner. But it was stated that recordwas not available being an old record as the incident was of 1993. Theenquiry was initiated in 2013 after the acquittal of the writ petitionerfrom the criminal trial. Therefore, in the absence of the best evidenceof registers, the oral evidence of use of official weapon stands provenon the basis of oral testimony of the departmental witnesses.

29. The burden of proof in the departmental proceedings is not ofbeyond reasonable doubt as is the principle in the criminal trial butprobabilities of the misconduct. The delinquent such as the writ petitionercould examine himself to rebut the allegations of misconduct includinguse of personal weapon. In fact, the reliance of the writ petitioner isupon a communication dated 1.5.2014 made to the Commandant throughthe inquiry officer. He has stated that he has not fired on higher officersand that he was out of camp at the alleged time of incident. Therefore,a false case has been made against him. His further stand is that it wasa terrorist attack and terrorists have fired on the Camp. None of thedepartmental witnesses have been even suggested about any terroristattack or that the writ petitioner was out of camp. Constable D.K. Mishrahad immobilized the writ petitioner whereas all other witnesses haveseen the writ petitioner being immobilized and being removed to quarterguard. PW-5 Brij Kishore Singh deposed that 3-4 soldiers had taken theSelf-Loading Rifle (S.L.R.) of the writ petitioner in their possession.Therefore, the allegations in the chargesheet dated 25.2.2013 that the AB

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Awrit petitioner has fired from the official weapon is a reliable findingreturned by the Departmental Authorities on the basis of evidence placedbefore them. It is not a case of no evidence, which alone would warrantinterference by the High Court in exercise of power of judicial review. Itis not the case of the writ petitioner that there was any infraction of anyrule or regulations or the violation of the principles of natural justice. TheBbest available evidence had been produced by the appellants in the courseof enquiry conducted after long lapse of time.

30. Consequently, we find that the order passed by the High Courtis not sustainable. Hence, the same is set aside and the order ofpunishment of dismissal passed on 21.12.1996 as affirmed in appeal andCrevision stands restored. Accordingly, the appeal is allowed.

Ankit Gyan

Appeal allowed.

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