THE STATE OF RAJASTHAN & ORS. versus HEEM SINGH on 29 October 2020

[2020] 13 S.C.R. 951

THE STATE OF RAJASTHAN & ORS.

v.

HEEM SINGH

(Civil Appeal No. 3340 of 2020)

OCTOBER 29, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Service Law – Dismissal from service after a disciplinaryenquiry – The respondent was appointed as a constable in the Statepolice service – It was alleged that the respondent overstayed leaveby a period of 3 days beyond the leave sanctioned – Few daysthereafter, he was arrested for the offence of murder u/s.302 IPC –It was alleged that there was a dispute over land between therespondent and victim-deceased – Also, the respondent’s father wasbitten by snake and he was treated by the victim using witchcraft,which did not yield result, leading to the death of respondent’s father– According to the prosecution, the respondent bore a grudge towardsthe victim due to this incident and had proclaimed to kill him –Victim’s death was caused by an accident with an unknown vehicle– The Trial Court found that the deceased had intimated at the policestation a threat to his life from the respondent few years before theincident – A succession of prosecution witnesses were declared hostile(PWs 3, 4, 5,17, 18, 19, 20, 22, 23 and 34) and the Court found itunsafe to rely upon the evidence of PW-1 based on inconsistenciesin his evidence – The respondent was given the benefit of doubtand was acquitted – However, in disciplinary proceedings underthe Rajasthan Civil Services (Classification, Control and Appeal)Rules 1958, the enquiry officer found charges of misconduct provedthat the respondent as a member of the police force had committedan act of murder while on leave – Consequently, he was dismissedfrom service – The appeal and review filed by the respondent weredismissed – The writ petition filed by the respondent was also rejectedby the Single Judge of the High Court – However, the DivisionBench of the High Court reversed the judgment of the Single Judgeand directed reinstatement of the respondent in service withconsequential benefits but without back-wages – On appeal, held:The standard of proof in disciplinary proceeding is different from

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Athat of criminal trial – While the standard of proof in criminal caseis a proof beyond all reasonable doubt, the proof in a departmentalproceeding is a preponderance of probabilities – In the instant case,the respondent and his parked tractor were seen proximate in timeand in terms of the location where victim’s dead body was found byboth PW1 and PW3 – The respondent was found to be together withBone of the co-accused proximate in time – These circumstances arecoupled with respondent’s movements at and around the time of themurder, commencing with but not confined to his being at the villageon leave for 2 days coinciding with the murder – This may not besufficient to sustain a conviction on a charge of murder in the sessionCtrial – But, the State had sufficient material to conclude that theconnection of respondent to the incident would affect the reputationof its police force – The reinstatement of such an employee back inservice will erode the credibility of and public confidence in theimage of the police force – Therefore, the direction of the DivisionBench for reinstatement set aside.D

In judicial review over disciplinary matters – Held: Two endsof spectrum - First is a rule of restraint founded on deference to theposition of the disciplinary authority as a fact finding authorityand autonomy of the employer in maintaining discipline andefficiency of the service – At the other end of the spectrum is theEprinciple that the court has the jurisdiction to interfere when thefindings in the enquiry are based on no evidence or when theysuffer from perversity – A failure to consider vital evidence is anincident of what the law regards as a perverse determination offact – Service jurisprudence has recognized the authority of theFcourt to interfere when the finding or the penalty are disproportionateto the weight of the evidence or misconduct.

Allowing the appeal, the Court

HELD: Evidence in the disciplinary enquiry G1. A complete review of the evidence indicates there was apre-existing hostility between the respondent and the victim-deceased. This hostility initially arose in the context of a landdispute. The hostility between them escalated exponentially afterthe death of the respondent’s father for which he blamed victim.It evidently rose to an extent where the respondent openly issuedH

a death threat to victim, leading victim to file a police complaintagainst the respondent apprehending a threat from therespondent to his safety. As regards the incident leading to thedeath of victim, the respondent and his parked tractor were seenproximate in time and in terms of the location where victim’sdead body was found by both PW1 and PW3. The respondent wasfound to be together with one of the co-accused proximate intime. These circumstances are coupled with respondent’smovements at and around the time of the murder, commencingwith but not confined to his being at the village on leave for twodays coinciding with the murder. This may not have been sufficientto sustain a conviction on a charge of murder in the sessionstrial. But the State had sufficient material to conclude that theconnection of the respondent to the incident would affect thereputation of its police force and that the presence of therespondent as a member of the force was not in the interest ofpublic administration. Whether on the basis of the evidence, therespondent could have been implicated in the conspiracy tocommit murder of victim is one aspect of the matter. Evidentlydirect evidence to sustain a charge of conspiracy is difficult tocome by even in the course of a criminal trial. Quite independentof this is the issue whether the connection of the respondentwith the circumstances leading to the death of victim affected hisability to continue in the State police force without affecting itsintegrity and reputation. The latter aspect is the one on whichthe judgment of the Division Bench is found to be deficient in itsreasoning. [Para 28][979-E-H; 980-A-C]

Judicial review over disciplinary matters

2. In exercising judicial review in disciplinary matters, thereare two ends of the spectrum. The first embodies a rule ofrestraint. The second defines when interference is permissible.The rule of restraint constricts the ambit of judicial review. Thisis for a valid reason. The determination of whether a misconducthas been committed lies primarily within the domain of thedisciplinary authority. The judge does not assume the mantle ofthe disciplinary authority. Nor does the judge wear the hat of anemployer. Deference to a finding of fact by the disciplinaryauthority is a recognition of the idea that it is the employer who ABC

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Ais responsible for the efficient conduct of their service.Disciplinary enquiries have to abide by the rules of natural justice.But they are not governed by strict rules of evidence which applyto judicial proceedings. The standard of proof is hence not thestrict standard which governs a criminal trial, of proof beyondreasonable doubt, but a civil standard governed by aBpreponderance of probabilities. Within the rule of preponderance,there are varying approaches based on context and subject. Thefirst end of the spectrum is founded on deference and autonomy– deference to the position of the disciplinary authority as a factfinding authority and autonomy of the employer in maintainingCdiscipline and efficiency of the service. At the other end of thespectrum is the principle that the court has the jurisdiction tointerfere when the findings in the enquiry are based on noevidence or when they suffer from perversity. A failure to considervital evidence is an incident of what the law regards as a perversedetermination of fact. Proportionality is an entrenched feature ofDour jurisprudence. Service jurisprudence has recognized it forlong years in allowing for the authority of the court to interferewhen the finding or the penalty are disproportionate to the weightof the evidence or misconduct. Judicial craft lies in maintaining asteady sail between the banks of these two shores which haveEbeen termed as the two ends of the spectrum. Judges do not restwith a mere recitation of the hands-off mantra when they exercisejudicial review. To determine whether the finding in a disciplinaryenquiry is based on some evidence an initial or threshold level ofscrutiny is undertaken. That is to satisfy the conscience of thecourt that there is some evidence to support the charge ofFmisconduct and to guard against perversity. But this does notallow the court to re-appreciate evidentiary findings in adisciplinary enquiry or to substitute a view which appears to thejudge to be more appropriate. To do so would offend the firstprinciple which has been outlined above. The ultimate guide isGthe exercise of robust common sense without which the judges’craft is in vain. [Para 33][982-G-H; 983-A-G]

The effect of an acquittal

3. In the present case, the respondent was acquitted of thecharge of murder. The circumstances in which the trial led to anH

acquittal have been elucidated in detail above. The verdict of thecriminal trial did not conclude the disciplinary enquiry. Thedisciplinary enquiry was not governed by proof beyond reasonabledoubt or by the rules of evidence which governed the criminaltrial. True, even on the more relaxed standard which governs adisciplinary enquiry, evidence of the involvement of therespondent in a conspiracy involving the death of victim wouldbe difficult to prove. But there are circumstances emerging fromthe record of the disciplinary proceedings which bring legitimacyto the contention of the State that to reinstate such an employeeback in service will erode the credibility of and public confidencein the image of the police force. [Para 35][986-C-E]

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M. Siddiq v. Suresh Das (2020) 1 SCC 1 – followed.

Suresh Pathrella v. Oriental Bank of Commerce (2006)10 SCC 572 : [2006] 7 Suppl. SCR 564; SamarBahadur Singh v. State of U.P. (2011) 9 SCC 94 : [2011]11 SCR 136; P. John Chandy and Co. (P) Ltd. v. JohnP. Thomas (2002) 5 SCC 90 : [2002] 3 SCR 549; MoniShankar v. Union of India (2008) 3 SCC 484; SouthernRailway Officers Association v. Union of India (2009)9 SCC 24 : [2009] 12 SCR 429; Inspector General ofPolice v. S. Samuthiram (2013) 1 SCC 598 : [2012] 11SCR 174 – relied on.

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3340of 2020.

From the Judgment and Order dated 24.04.2019 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Special Appeal (Writ)No. 577 of 2018.B

Ashish Kumar, AAG, Milind Kumar Adv. for the Appellants.

Jasmeet Singh, Saif Ali, Pushpendra S. Bhadoriya, Ms. RusheetSaluja, Advs. for the Respondent.

The Judgment of the Court was delivered byCDR DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into sections to facilitate analysis.They are:

A The appeal

DB Murder, trial and disciplinary enquiry C Submissions of counsel D Proof of misconduct in disciplinary proceedings EFindings of the disciplinary enquiry E

FThe judgment of the Division Bench

G Evidence in the disciplinary enquiry

H On a ‘preponderance of probabilities’

IJudicial review over disciplinary matters F

JThe effect of an acquittal

K Conclusion

A The appeal

1. This appeal is from a judgment dated 24 April 2019 of a DivisionGBench of the High Court of Judicature for Rajasthan at Jodhpur. Therespondent, who was a police constable, filed a petition under Article226 of the Constitution to challenge his dismissal from service after adisciplinary enquiry. A Single Judge of the High Court, by a judgmentdated 1 February 2018, dismissed the petition. The Division Benchreversed the judgment and concluded that there is no evidence in theH

disciplinary enquiry to sustain the finding that the respondent committeda murder while on leave from duty. Independently, he has also beenacquitted in a Sessions trial on the charge of murder. The Division Benchgranted the respondent reinstatement in service with no back wages forthe seventeen years that elapsed since his termination. The State comesin appeal.

B Murder, trial and disciplinary enquiry

2. In 1992, the respondent was appointed as a Constable in thepolice service of Rajasthan. On 13 August 2002, he proceeded on leaveand had to report back on duty on 16 August 2002. He failed to do soand eventually reported for work on 19 August 2020. He sought andwas granted permission for over-staying his leave on the ground that hisbrother-in-law, Shankar Singh had died. On 15 August 2002, one DaulatSingh lodged a written complaint at Police Station, Khamnaur in relationto the death of his brother Bhanwar Singh, caused by an accident withan unknown vehicle. The police initially registered a crime under Sections209 and 304A of the Indian Penal Code[1]. The statements of DaulatSingh, Jodh Singh, Meera and Hamer Singh were recorded under Section161 of the Code of Criminal Procedure 1973[2]. It appeared during thecourse of the investigation that the death was homicidal. The investigationby the police proceeded for an offence punishable under the provisionsof Section 302 of the IPC. The respondent was arrested on 9 September2002. There were two co-accused, Lokesh Gurva and Iqbal Khan. Afterthe investigation was completed, a charge-sheet was filed under Sections302, 201 and 120B. Sessions Case 3 of 2003 was committed for trial tothe court of the Additional Sessions Judge, Nathdwara.

3. The case of the prosecution was that there was a dispute overland between the respondent and Bhanwar Singh. Moreover, therespondent’s father had been treated for a snake bite by Bhanwar Singhbut his witchcraft did not yield result, leading to the death of the father.According to the prosecution, the respondent bore a grudge towards thedeceased due to this incident and had proclaimed earlier that he wouldkill him.

4. During the pendency of the criminal trial, a memorandum wasissued on 18 January 2003 to the respondent, followed by a charge- 1 “IPC”

2 “CrPC”

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Asheet, convening disciplinary proceedings under the provisions of Rule16 of the Rajasthan Civil Services (Classification, Control and Appeal)Rules 1958[3]. 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. DevgarhBgot one casual leave and one gazette leave sanctioned and left foryour home, as per which you have to attend duty on 16.08.02 atA.M. but you did not attend the duty on time and attended theduty on 19.08.02 after remaining absent for 3 days, which is provedfrom record.

C2. That even during the absence period you did not inform anyofficer about the reason of your absence and also not submittedany extension, which is proved from record.

3. That you at your residence on 15.08.02 during leave ShriBhanwar Singh S/o Chandan Singh Rajput R/o Ravo ki Gudli,Dwho was working in PWD Department, Nathdwara and was goingon his duty and because of dispute regarding land between youand Bhanwar Singh you with help of Lokesh, Iqbal to kill BhanwarSingh hit him with jeep at Bheel Basti Kunthwa, due to which hefell down and while shouting your companion Iqbal brought ironrod from jeep and hit on forehead of Bhanwar Singh due to whichEhe died on the spot. You are an employee of disciplined departmentand have knowledge of law, you have committed such a grievousoffence, due to which image of police is blurred among public,which is proved from record.

4. That you after committing murder of Bhanwar Singh, you andFyour companion ran away from the spot and having knowledge oflaw gave form of an accident to the murder, which is proved fromrecords and initial inquiry.

5. That you after the said incident by joining duty 19.08.02 atpolice station Devgarh while hiding reality and by telling reason ofGabsence as accident of Bhanwar Singh you get sanctioned period3 leaves from the SHO as casual leaves where you had committedmurder. Thus, you have knowingly mislead your superior officer,which is proved from the initial inquiry and record .

6. That you are an employee of disciplined department, has fullknowledge of law and despite of having knowledge of law youcommitted a heinous crime, which seriously hurt the image ofpolice department among general public and your said act hasblurred the image of police among public. Your said act comesunder category of ‘savior only eater’, which is proved from theinitial inquiry and record.”

5. By a judgment dated 8 October 2003, the Additional SessionsJudge acquitted the respondent and the two co-accused, giving them thebenefit of doubt. The Additional Sessions Judge observed that PW1Meera and PW2 Poorna Devi, the daughters of the deceased, were notpresent at the scene of offence and their evidence was hearsay. Asuccession of witnesses – PW3 Jai Singh, PW4 Babudas, PW5 Sundarlal,PW17 Jagat Singh, PW18 Kishan Singh, PW19 Banshi Lal, PW20Shankar Singh, PW22 Devi Singh, PW23 Kaisar Singh and PW34 PratapSingh – were declared hostile during the course of the trial. The caseturned on the evidence of PW21 Jodh Singh, the alleged eye-witness.The Additional Sessions Judge found that on 7 September 2000, about 2years prior to the incident, the deceased had intimated the SHO atKhamnaur P.S. recording a threat to his life inter alia from the respondent.The SHO registered a report under Section 107 of the CrPC andconducted proceedings. Although finding prima facie that there wasenmity between the respondent and the deceased, the Additional SessionsJudge declined to accept the evidence of PW21. While evaluating it inthe context of the co-accused, Lokesh, the Additional Sessions Judgenoted:

“Thus, this evidence is prima facie … that accused Heem Singhhas enmity with deceased Bhanwar Singh. Whether due to thisenmity Heem Singh by conspiring with co-accused persons bytelling accident by jeep with aid of co-accused Iqbal committedmurder of Bhanwar Singh, on this point the observation of thisCourt is that accused Lokesh Gaurva who was told as jeep driverby the witness Jodh Singh at the time of incident, against thatLokesh Gaurva by involving with Heem Singh at the time ofincident hitting Bhanwar Singh by jeep such evidence is not givenby PW-21 Jodh Singh. Additional Public Prosecutor on thispoint during cross-examination has not taken on record byseeking any clarification or declaring PW-21 as hostile. Thus, A

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960SUPREME COURT REPORTS

Athere is no evidence on record for conviction of accused LokeshGaurva under Sections 302, 201, 120B IPC read with Section 34IPC.” (emphasis supplied)

The above extract indicates that the Public prosecutor did nothave PW21 declared hostile, though this should have been ordinarily, theBcorrect course of action. The Additional Sessions Judge declined tobelieve the testimony of PW21 insofar as the respondent and co-accusedIqbal were concerned, finding that the witness was inconsistent anduntrustworthy. The respondent was given the benefit of doubt and wasacquitted.

C6. The disciplinary enquiry on the charge of murder proceededwith much the same evidence. Jodh Singh was the star witness duringthe disciplinary proceedings. During the course of the disciplinary enquiry,the enquiry officer recorded the statements of PW1 Jodh Singh, PW2Devi Singh, PW3 Shankar Singh and PW4 Hamer Singh among severalwitnesses. The disciplinary enquiry led to the submission of the enquiryDreport. The enquiry officer found the charges to be proved. The findingson each of the charges are extracted below:

“CHARGE NO.1

Said constable on 13.08.02 from Station House Officer, P.S.EDevgarh get on one casual leave and one gazette leave sanctionedand left for his home who has not attended the duty on time andattended the duty after 3 days, which is proved from the statementsof Shri Bhanwar Singh, S.I. SHO Devgarh, Shri Bhanwar SinghConst. No.351, Shri Rajesh Kumar, Const. No. 563 & ShriMunishwar Mishra, Ka.Ii. and from copy of GD Report. Thus, IFfound the said charge as completely proved.

CHARGE NO.2

The Constable during the absence period did not inform any officerabout the reason of his absence and also not submitted anyextension, which is proved from records and statements of ShriGMuniswar Mishra, Ka. Li. Force Branch, Shri Bhanwar SinghS.I. SHO Devgarh. Thus, I found the said charge as completelyproved.

CHARGE NO.3

The said constable at his residence on 15.08.02 during leave ShriBhanwar Singh S/o Chandan Singh Rajput R/o Ravo ki Gudli,who was working in PWD Department, Nathdwara and was goingon his duty and because of dispute regarding land between himand Bhanwar Singh, he with help of Lokesh, Iqbal to kill BhanwarSingh hit him with jeep at Bheel Basti Kunthwa, due to which hefell down and while shouting his companion Iqbal brought iron rodfrom jeep and hit on forehead of Bhanwar Singh due to which hedied on the spot. Thus, being an employee of disciplined departmentand having knowledge of law, he has committed such a grievousoffence due to which image of police is blurred among public.

In respect of said charge the prosecution has produced statementsof 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 statementat the time of incident has proved presence of himself, chargedconstable and tractor at the place of incident. Similarly, witnessShankar Singh PW-3 stated that he saw half an hour ago to theincident, the charged constable roaming near place of incidentand his parked tractor. Similarly, witness Shri Hamer Singh PW-4stated that there is prior enmity between charged constable anddeceased Bhanwar Singh and prior to the death of father ofcharged constable, stating through witness to Bhanwar Singh thatI will kill him by hitting with jeep or tractor and the incident ofsame kind is committed. Similarly, witness Shri Nanalal SHOKhamnaur PW-9 also in his statement against the charged constableon finding offence verified arresting him and seizure of iron rod,jeep & tractor used in the incident. Thus, from the aforesaidanalysis the said charge is found as completely proved.

The charged constable in defense of said charge has produced acopy of order passed by the Hon’ble Additional Sessions JudgeNathdwara in case related to said incident, after perusal of whichit is found that the Hon’ble Court has not completely acquitted thesaid constable rather acquitted by giving him the benefit of doubt.From this it is clear that the Hon’ble Court has not acquittedcharged constable in free form. Thus, I found said charge ascompletely proved due to which the image of police has blurred.

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ACHARGE NO.4

It is the charge against constable that he after committing murderof Bhanwar Singh, along with his companions ran away from thespot and having knowledge of law gave form of an accident tothe murder.

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PW-1 Jodh Singh, PVV-3 Shankar Singh, PW-4 Hamer Singh,PW-9 Nanalal has confirmed the aforesaid charge. Thus, saidcharge is completely proved from the enquiry.

CHARGE NO.5

It is the charge against constable that he while joining duty on19.08.02 at police station Devgarh by hiding reality and by tellingreason of absence as accident of Bhanwar Singh he got sanctionedperiod of 3 leaves from the SHO as casual leaves.

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Said charge is proved from the statements of witnesses PW-7DShri Rajesh Kumar, PW-6 Bhanwar Singh S.I. and aamad reportExt. P-8 written by charged constable. Thus, I found the saidcharge as completely proved.

CHARGE NO.6

It is the charge against constable that he being an employee ofEdisciplined department, has full knowledge of law and despite ofhaving knowledge of law he has committed a heinous crime, whichseriously hurt the image of police department among general public.

Since, from the enquiry the Charge No. 1 to 5 are completelyproved. Thus, the said charge automatically gets completelyFproved.”

7. The disciplinary authority issued a notice to show cause to therespondent on 23 October 2003, to which he submitted a response on 17November 2003. On 11 December 2003, the District Superintendent ofPolice came to the conclusion that though the respondent had been givenGthe benefit of doubt in the criminal trial, the charges against him stoodestablished. He was dismissed from service. The appeal preferred bythe respondent was dismissed by the Inspector General of Police on 17June 2005. A review before the State Government was dismissed on 29August 2008. This led to the institution of writ proceedings before theHigh Court. A learned Single Judge of the High Court, by a judgmentH

dated 1 February 2018, rejected the Writ Petition. In appeal, the judgmentof the Single Judge was reversed by the Division Bench on 24 April2019. By its judgment, the Division Bench directed re-instatement of therespondent in service with consequential benefits but without back-wages.

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C Submissions of counsel

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8. Mr Ashish Kumar, AAG appearing on behalf of the appellantssubmits 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 whereCthe prosecution has to establish their case ‘beyond reasonabledoubt’;

(ii) While exercising judicial review under Article 226 of theConstitution against the findings in a disciplinary enquiry thecourt cannot reappreciate the evidence in the manner of anappellate court, and so long as the finding of misconduct isDbased on some evidence, no interference is warranted;(iii) The High Court has failed to ascribe adequate weight to theorders in the disciplinary proceedings: the order dated11 December 2003 pursuant to departmental proceedings;the order dated 17 June 2005 of the Inspector General ofEPolice exercising appellate powers; and the order dated 29August 2008 in review proceedings passed by the HomeDepartment; and

(iv) The evidence in the disciplinary enquiry indicates that:

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(a) There was enmity between the deceased and the respondentarising out of a dispute over land; (b) The co-accused was found at the scene of offence;

(c) The deceased had a couple of years prior to the incident,lodged a complaint with the police apprehending danger fromGthe respondent; (d) The evidence of PW1 Jodh Singh and PW3 Shanker Singhshowed the presence of the respondent in the vicinity; and (e) The judgment in the criminal trial, acquitting the respondentof the offence of murder, did not constitute a clean acquittalHbut was founded on the benefit of doubt.

A9. On the above grounds, it was urged that the High Court hastransgressed the limitations on its power of judicial review in allowingthe appeal, setting aside the judgment of the Single Judge and in interferingwith the disciplinary penalty imposed by the appellants.

10. On the other hand, Mr Jasmeet Singh, learned CounselBappearing on behalf of the respondent submitted that:

(i) The departmental enquiry was concluded in violation of therules governing the enquiry. All the orders in the disciplinaryenquiry were based on the examination-in-chief of an allegedeye-witness, PW1 Jodh Singh, while ignoring that his depositionCwas completely demolished in the course of the cross-examination;

(ii) In the course of the cross-examination, PW1 Jodh Singhadmitted that he had named the respondent only under thepressure of the Sarpanch. The disciplinary authority as wellDas the appellate and reviewing authorities ignored vitalevidence, and consequently their findings were perverse;

(iii) Since the alleged crime took place outside the scope of service,it was incumbent upon the department to place reliance onthe entire record of the Sessions trial in which the respondentEwas acquitted. The departmental enquiry is based on a selectiveexamination of the records of the Sessions Court;

(iv) The entire evidence on record would demonstrate that therespondent was not even remotely connected with the murderof Bhanwar Singh; and F(v) There is a “minor charge” against the respondent of availingof three days extra casual leave without informing the superiorofficer. On this charge, it has been submitted that:

(a) The grant of additional casual leave was approved uponhis joining duties by the superior officer and the chargeGwas duly modified to state that the approval was takenby misrepresenting facts; the respondent was alleged tohave concealed his involvement in the crime of murder; (b)If the charge of being involved in the murder is notestablished, this charge will cease to exist; andH

(c) Even assuming, without conceding, that the respondentwas guilty of taking casual leave without informing thesuperior, he was never guilty of such conduct in the pastand the leave was taken because of the death of hisbrother-in-law.

11. On the basis of the above submissions, it has been urged thatthe findings in the departmental enquiry were perverse and have beencorrectly set aside by the Division Bench of the High Court. Therespondent has been out of service for 17 years and has (it has beenurged) had to combat the social stigma of being terminated from service.The High Court having since re-instated the respondent without back-wages, it was urged that no interference by this Court is warranted.

D Proof of misconduct in disciplinary proceedings

12. The primary charge in the disciplinary proceedings relates tothe involvement of the respondent in the murder of Bhanwar Singh.According the respondent, the disciplinary enquiry pertains to an eventwhich took place outside the fold of his service. It was asserted that thedisciplinary enquiry in regard to the involvement of the respondent in amurder bore no nexus to his employment. This submission cannot standscrutiny, having regard to the nature of the employment and the positionof the respondent as member of the police force. The respondent was aconstable in the service of the police department of the State of Rajasthansince 1992. Involvement of a member of the police service in a heinouscrime (if it is established) has a direct bearing on the confidence ofsociety in the police and in this case, on his ability to serve as a memberof the force. Such an individual is engaged by the State as a part of themachinery designed to preserve law and order. The State can legitimatelyassert that it is entitled to proceed against an employee in the position ofthe respondent in the exercise of its disciplinary jurisdiction, for a breachof the standard of conduct which is expected of a member of the statepolice service. Confidence of the State in the conduct and behaviour ofpersons it has appointed to the police is integral to its duty to maintainlaw and order. The real issue is whether the charge of misconduct standsestablished in this case on the basis of some evidence, applying theevidentiary principle of a preponderance of probabilities.

13. The standard of standard of proof in disciplinary proceedingsis different from that in a criminal trial. In Suresh Pathrella v. Oriental A

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ABank of Commerce[4], a two judge Bench of this Court differentiatedbetween the standard of proof in disciplinary proceedings and criminaltrials in the following terms:

“ …the yardstick and standard of proof in a criminal case isdifferent from the disciplinary proceeding. While the standard ofBproof in a criminal case is a proof beyond all reasonable doubt,the proof in a departmental proceeding is preponderance ofprobabilities.” This standard is reiterated by another two-JudgeBench of this Court in Samar Bahadur Singh v. State of U.P.[5]:

“Acquittal in the criminal case shall have no bearing or relevanceCto the facts of the departmental proceedings as the standard ofproof in both the cases are totally different. In a criminal case, theprosecution has to prove the criminal case beyond all reasonabledoubt whereas in a departmental proceedings, the department hasto prove only preponderance of probabilities.”

DE 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’ andwas to report back on 16 August 2002. It is admitted that he over-stayedhis leave and joined on 19 August 2002. According to the respondent,Ethe additional leave was sanctioned after he joined back on duty. TheState as his employer claims that the respondent concealed the interveningcircumstance of his involvement in the murder of Bhanwar Singh on15 August 2002. Now it is important to note that the respondent wasplaced under arrest on 16 September 2002 much after he had rejoinedduty and was released on bail on 30 October 2002. Since the arrest tookFplace after he rejoined duties, it cannot be said that there was a suppressionby him of his custodial detention when he joined duties on 19 August2002. In any case, this part of the charges is subsidiary to the maincharge in the disciplinary proceedings. In the departmental proceedings,broadly speaking, the charges that were leveled against the respondentGwere:

(i) Over-staying leave by a period of three days beyond theleave that was sanctioned; 4 (2006) 10 SCC 5725 (2011) 9 SCC 94H

(ii) Not seeking an extension of leave from the superior officer;

(iii) Involvement in the murder of Bhanwar Singh (the respondentis alleged to have run away from the scene of offence andtried to give it the colour of an accident);

(iv) Getting additional leave sanctioned by suppressing the correctreason on a misrepresentation to the superior officer; and

(v) Conduct which has hurt the image of the police department.

15. The respondent was tried for the offence of murder and wasacquitted by the Sessions Court on 8 October 2003. During the courseof the criminal trial a succession of prosecution witnesses were declaredhostile (PWs 3, 4, 5, 17, 18, 19, 20, 22, 23 34). The Additional SessionsJudge found it unsafe to rely upon the evidence of the sole eye-witness,Jodh Singh (PW21 at the Sessions Trial) based on the inconsistencies inhis evidence. In fact, the trial judge even observed that no steps hadbeen taken by the Public prosecutor to have him declared hostile. Theacquittal of the respondent on the charge of murder was based on thenow familiar spectacle of prosecution witnesses turning hostile. It is truethat the acquittal brought finality to the question as to whether he hadcommitted the offence of murder punishable under the Penal Code.However, the disciplinary enquiry stood on a broader footing. Thedisciplinary proceedings related not merely to the involvement of therespondent in the murder, but to the violation of service rules and theimpact of his conduct on the image of the police force.

16. On the primary charge of the involvement of the respondentin the murder of Bhanwar Singh, Jodh Singh (PW1 in the DisciplinaryEnquiry) was the prime witness, as in the criminal trial. Jodh Singh wasan engine mechanic and stated in the course of his examination on 18July 2003 that two or three years earlier, the respondent came to himwith an engine crane for repair together with Iqbal Khan (who was alsoa co-accused at the Sessions trial). The witness stated that Iqbal Khanhad assaulted Bhanwar Singh with an iron rod when he was proceedingon a cycle near Bheel Basti Nala. Further, he stated that on the sameday he had seen the respondent about 300 feet away from the scene ofoffence going towards Nathdawara on a cycle. Also, about 300 feetaway from the scene of offence, he found the tractor of the respondentparked. Jodh Singh claims to be an eye-witness to the murder of BhanwarSingh by Iqbal. In quite the same vein as he did during the criminal trial, A

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Aduring the course of his cross examination, Jodh Singh did not supporthis statements during the examination in chief. For the completeness ofthe record, it is necessary to extract the relevant part of the cross-examination which has been recorded in question and answer form inthe enquiry proceedings:

B“Cross through Pairokar Heem Singh Const. No.642

1. Question - After 20 days of this incident Sarpanch Shri PratapSingh called at his house and told that you shall get written nameof Heem Singh and Lokesh also along with Iqbal, I refused thenSarpanch Ji told that you have to get name of Heem Singh writtenCtherefore, I told name of them in the statements given to police.

2. Is it correct that you saw Iqbal while killing Bhanwar Singh butat that time Heem Singh was not present there at the time ofincident. Yes, It is true.

3. Is it correct that you did not know about giving of threats to killDby Heem Singh to Bhanwar Singh. Yes, it is true.

4. Is it correct that on that day you are going to Gudla fromKunthwa from road going from Nathdwara to Ghata Ghotiya andHeem Singh met you while going on motorcycle from Kunthwato Nathdwara. The place where Heem Singh met, on moving 300Eft forward from there you saw Iqbal while killing Bhanwar Singh.Yes, it is true.

5. Is it correct that from whom Heem Singh brought crane andfor whom, you did not know about that. Yes, it is true that I am notaware about that.

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6. Is it correct that no person with name Ram Singh lives a Gudli?Yes, it is true, but in my statements about which Ram Singh Imentioned, he is resident of Chundavte ka Guda, Kunthwa, whosewell is there where I repaired the crane.

7. Is it correct that after killing of Bhanwar Singh by Iqbal theGjeep which passed from there, which passed after crushing cycleand Bhanwar Singh? Yes, it is true but Iqbal went after sitting inthat.

8. Is it correct that you did not recognize the driver of jeep, neithersaw number of jeep nor recognized jeep that it belongs to whom?HYes, it is true.”

The disciplinary authority arrived at its findings on the charge ofmisconduct observing thus:

“In respect of said charge the prosecution has produced statementsof Jodh Singh PW-1, Devi Singh WP-2, Shankar Singh PW-3,Hamer Singh PW-4, out of which Jodh Singh PW-1 in his statementat the time of incident has proved presence of himself, chargedconstable and tractor at the place of incident. Similarly, witnessShankar Singh PW-3 stated that he saw half an hour ago to theincident, the charged constable roaming near place of incidentand his parked tractor. Similarly, witness Shri Hamer Singh PW-4stated that there is prior enmity between charged constable anddeceased Bhanwar Singh and prior to the death of father ofcharged constable, stating through witness to Bhanwar Singh thatI will kill him by hitting with jeep or tractor and the incident ofsame kind is committed. Similarly, witness Shri Nanalal SHOKhamnaur PW-9 also in his statement against the charged constableon finding offence verified arresting him and seizure of iron rod,jeep & tractor used in the incident. Thus, from the aforesaidanalysis the said charge is found as completely proved.

The charged constable in defense of said charge has produced acopy of order passed by the Hon’ble Additional Sessions JudgeNathdwara in case related to said incident, after perusal of whichit is found that the Hon’ble Court has not completely acquitted thesaid constable rather acquitted by giving him the benefit of doubt.From this it is clear that the Hon’ble Court has not acquittedcharged constable in free form. Thus, I found said charge ascompletely 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 quiteapart from the cross-examination, the examination-in-chief of Jodh Singhwas not susceptible to the inference that the respondent was evenremotely connected with the murder. The imputation against therespondent was that he had collaborated with Iqbal and Lokesh, andmurdered Bhanwar Singh by running him over with a jeep. On thisimputation, the High Court held that there is no evidence to establish thatthe respondent had conspired or collaborated with the said two personsto murder Bhanwar Singh. On the contrary, High Court noted, the cross-examination of PW1 Jodh Singh indicated that he was instigated by the AB

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ASarpanch to falsely implicate the respondent and that while he had seenthe assault by Iqbal, the respondent was not present at the scene ofoffence. Further, the evidence of PW2 Devi Singh and PW3 ShankarSingh did not, according to the High Court, implicate the respondent, andPW4 Hamer Singh only spoke about the previous dispute arising fromthe death of the father of the respondent from a snake bite for whichBBhanwar Singh had attempted a cure. The High Court also noted thatthe evidence of PWs 5, 6, 7, 8, 9 and 10 in the disciplinary enquiry wasof only a formal nature.

18. The High Court held that the cross-examination of Jodh Singhwas ignored in the course of the disciplinary enquiry and was not referredCto by the disciplinary authority while arriving at its findings. On therecovery of the jeep and tractor with a trolley and iron rod, the HighCourt observed that the evidence of the Investigating Officer contains a“vague statement” that the recoveries of the offending articles/vehiclewas made at the instance of the accused. There were three accused in Dthe trial, and hence according to the High Court, it was not possible tolink the recoveries to the respondent.

19. The disciplinary enquiry was governed by Rule 16 of the Rules.The relevant parts of Rule 16 are extracted below:

“16. Procedure for imposing major penal 16. Procedure forEimposing major penalties.–

…

(6) (a). Where the Government Servant has pleaded not guilty tothe charges, at the commencement of the enquiry, the InquiringFAuthority shall ask the Presenting Officer appearing on behalf ofthe Disciplinary Authority to submit the list of witnesses anddocuments within 10 days, who shall also simultaneously send acopy to the Government Servant. Delinquent Officer, within tendays of the receipt of the list of prosecution witness and documents,shall submit the list of documents required by him for his defence.GThe Inquiring Authority shall then summon the documents of bothsides and ask the parties to admit or deny them. It shall thensummon such evidence as is necessary, giving opportunity to thepresenting officer for examination-in-chief and also to theGovernment Servant or his assisting officer, whosever may bepresent, for cross-examination. The Presenting Officer shall beH

entitled to re-examine the witness on any point on which theyhave been cross examined but not on any new matter, without theleave of the Inquiring Authority, after the close of the prosecutionevidence the Government Servant shall be called upon to submitthe list of the witnesses within 10 days which he would like toproduce in his defence. The Inquiring Authority after consideringthe relevancy of the witnesses and the documents shall summononly the relevant witnesses and the documents and record theevidence thereof, while giving opportunity of Examination-in-Chiefand cross-examination/re-examination to the parties and then closethe evidence. The Inquiring Authority shall consider the relevancyof the witnesses and the documents called for by both the partiesand in case of his refusal to summon any witnesses or documents,he shall record the reason in writing. The Inquiring Authority mayalso put such questions to the witnesses of the parties, as it thinksfit, in the interest of justice. An opportunity for hearing thearguments shall be given to the parties.

Note:- If the Government Servant applied orally or in writing forthe supply of copies of the statement of witnesses mentioned inthe list referred to in sub-rule (6)(a), the Inquiring Authority shallfurnish him with such copies as early as possible and in any casenot later than three days before the commencement of theexamination of the witnesses on behalf of the Disciplinary Authority.

(6) (a)(1). The evidence of any person which is of a formalcharacter may be given by affidavit and may, subject to all justexception, be accepted in evidence in departmental proceedings.Where the enquiry officer thinks fir that the person should besummoned and examined personally, or if either party, namely thepresenting officer or the delinquent officer insists on the personalattendance of the witness, arrangements should be made for thepersonal attendance of such witness.

(6) (b). The enquiring Authority may, for good and sufficient reasonsto be recorded in writing, recall witnesses for examination in part-heard cases being conducted by him.

(6) (c). The Inquiring Authority shall give a notice within 10 daysof the order or within such further time not exceeding 10 days asthe Enquiring Authority may allow, for the discovery or production AB

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of any documents which are in the possession of Government butnot mentioned in the list referred to in sub-rule (6)(a).

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Note:- The Government Servant shall indicate the relevance ofthe documents required by him to be discovered or produced bythe Government.

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The Inquiring Authority shall, on receipt of the notice for thediscovery or production of documents, forward the same or copiesthereof to the authority in whose custody or possession thedocuments are kept, with as requisition for the production of thedocument by such date as may be specified in such requisition:

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Provided that the Enquiring Authority may, for reasons to berecorded by it in writing, refuse to requisite such of the documentsas are in its opinion, not relevant to the case.

On receipt of the requisition, every authority having the custodyor possession of the requisitioned documents shall produce thesame before the Inquiry Authority:

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Provided that if the authority having the custody or possession ofthe requisitioned documents is satisfied for reasons to be recordedby it in writing that the production of all or, any of such documentswould be against the public interest or security of the State, itshall inform the Inquiring Authority accordingly and the InquiringAuthority shall, on being so informed, communicate the informationto the Government Servant and withdraw the requisition made byit for the production or discovery of such documents.

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(6) (d). In case of joint departmental enquiry under rule 18 or inFthe case of enquiry under rule 16 of these rules, the GovernmentServant/s/fail/fails to appear without sufficient cause on the datefixed for the hearing of which he had the notice, the InquiryAuthority, may proceed with the enquiry in the absence of suchGovernment Servant(s).

(6) (A). If it shall appear necessary before the close of the caseon behalf of the Disciplinary Authority, the Inquiring Authoritymay, in its discretion, allow the Presenting Officer to produceevidence not including in the list given to the Government Servantor may itself call for new evidence or re-call re-examine anywitness and such case the Government Servant shall be entitled G

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to have, if he demands it, a copy of the list of further evidenceproposed to be produced and an adjournment of the Inquiry forthree clear days before the production of such new evidence,exclusive of the days of adjournment and the day to which theinquiry is adjourned. The Inquiring Authority shall give theGovernment Servant an opportunity of inspecting such documentsbefore they are taken on the record. The Inquiring Authority mayalso allow the Government Servant to produce new evidence, if itis of the opinion that production of such evidence is necessary inthe interest of justice.

Note:- New evidence shall not be permitted or called for or, anywitness shall not be recalled to fill up any gap in the evidence.Such evidence may be called for only when there is an inherentlacuna or defect in the evidence which has been producesoriginally.

(6) (B)(a). Where a Disciplinary Authority competent to imposeany of the penalties specified in clauses (i) to (iii) of Rule 14, butnot competent to impose any of the penalties specified in clauses(iv) to (vii) of Rule 14, has itself inquired into or caused to beinquired into the articles of any charge and that authority, havingregarding to its own findings or having regard to its decision onany of the findings of any Inquiring Authority appointed by it, is ofthe opinion that the penalties specified in clauses (iv) to (vii) ofRule 14 should be imposed on the Government Servant, thatauthority shall forward the records of the inquiry to such disciplinaryauthority as is competent to impose the last mentioned penalties.

(6) (B)(b). The Disciplinary Authority to which the records are soforwarded may act on the evidence on the record or may, if it isof the opinion that further examination of any witnesses isnecessary in the interest of justice, recall the witnesses andexamine, cross-examine and re-examine the witness and mayimpose on the Government Servant such penalty as it may deemfit in accordance with rules.

(7). At the conclusion of the inquiry, the Inquiring Authority shallprepare a report of the inquiry, recording its findings on each ofthe charges together with reasons therefore. If in the opinion ofsuch authority the proceedings of the inquiry establish chargesdifferent from those originally framed it may record findings on AB

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Asuch charges provided that findings on such charges shall not berecorded unless the Government Servant has admitted the factsconstituting them or has had an opportunity of defending himselfagainst them.

(8). The record of the inquiry shall include: - B(i) the charges framed against the Government Servant and thestatement 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; C(iv) the documentary evidence considered in the course of theenquiry;

(v) the orders, if any, made by the Disciplinary Authority and theInquiring Authority in regard to inquiry; and

(vi) a report setting out the findings on each charge and the reasonsDtherefore.

(9). The Disciplinary Authority shall, if it is not the InquiringAuthority, consider the record of the inquiry and record its findingson each charge.

EThe Disciplinary Authority may while considering the report ofthe Enquiring Authority for just and sufficient reasons to berecorded in writing remand the case for further/de-novo enquiry,in case it has reason to believe that the enquiry already conductedhas been laconic in some respect or the other.”FG Evidence in the disciplinary enquiry

20. Elaborate as it is, the judgment of the Division Bench of theHigh Court ought to have scrutinized other aspects of the evidentiaryrecord. These facets would have enabled the court to form, to use aterm familiar to the language of judicial discourse, an ‘overall perspectiveGof the matter’. As we shall presently indicate, this has a bearing onwhether an order of reinstatement (which the High Court has grantedwhile setting aside the disciplinary findings) does justice to the evidentiaryrecord. This court has to undertake the exercise, not in order to re-appreciate the findings in the enquiry, but because the High Court in anintra-court appeal conducted the exercise while setting aside the penalty.H

Apart from the somersault by Jodh Singh in his cross examination, whichhas largely weighed with the High Court, there are other crucial aspectswhich emerge from the record in the disciplinary enquiry. To them wenow turn. To ensure brevity, we summarize the point before excerptingfrom the deposition.

21. Evidence of PW1 Jodh Singh – Quite apart from the excerptsfrom the cross examination of PW1, which have been noticed by theHigh Court, his statement before the enquiry officer establishes that: (a)proximate to the incident, he did meet the respondent (Heem Singh)along with Iqbal, which indicates a prior familiarity between them; (b)the respondent’s father died from a snake bite; and (c) Jodh Singh metthe respondent on the date of the incident at a spot which was 300 feetaway from where he saw Iqbal murdering Bhanwar Singh. This is basedon the following evidence:

“Two-three years ago Heem Singh came with an engine cranefrom Sardargarh, which I repaired at Ram Singh’s well after visitingRavo Ki Gudli, at that time one … Iqbal Khan stating to be ofSardargarh, he was also there. During fitting of crane I talkedwith him therefore, I know him.”

“I also know Bhanwar Singh of Ravo ki Gudli, who was uncle ofHeem Singh. On biting by snake he did witch work and doingservice in PWD at Nathdwara. 2 years prior to death of BhanwarSingh; snake bit Nathu Singh the father of Heem Singh. I don’tknow whether Bhanwar Singh done any witch work on NathuSingh or not. Nathu Singh was kept admitted in Udaipur for 15-20days after biting of by snake. On getting discharged from hospital,after 2-3 days of coming back home Nathu Singh died.”

“Is it correct that on that day you are going to Gudla from Kunthwafrom road going from Nathdwara to Ghata Ghotiya and HeemSingh met you while going on motorcycle from Kunthwa toNathdwara. The place where Heem Singh met, on moving 300 ftforward from there you saw Iqbal while killing Bhanwar Singh.Yes, it is true.”

22. Evidence of PW2 Devi Singh – PW2 resiled from hisstatement in his entirety, and stated that he knows nothing about thedeath of Bhanwar Singh and admitted to whatever the police told him.

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A23. Evidence of PW3 Shankar Singh – PW3’s evidenceestablishes that he met the respondent on the date of the incident at thespot where his tractor was parked, along with another person whom hehas not identified. Moreover, when he was coming back after 30/45minutes, he saw the dead body of Bhanwar Singh. However, he statesthat he is not aware of a prior enmity between the respondent andBBhanwar Singh, and is not sure of Heem Singh’s involvement in thedeath of Bhanwar Singh. This is based on the following evidence:

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“On 15.08.02 at around 5-6 hours I after shutting down my teashop going towards fields from Kunthwa on my cycle. After goingthrough fields going to Kotela, from behind Heem Singh Singh ofCRavo ki Gudli who is a constable came on motorcycle and movedahead me. I reached at Nala Bheel Basti Valley where near wallsaw parked tractor of Heem Singh. Heem Singh went back fromthere to Kunthwa who asked me that where you are going. I saidthat I am going to Kotela. One person is sitting at the steering ofDtractor, whom I don’t know, to whom I asked that what happened D

to tractor he replied that fuel ran out, owner went to bring fuel. Atthat time I did not see any other person. After around half an houror 3/4[th] hour I came back from Kotela at that time on Bheel BastiNala Road dead body of Bhanwar Singh who is uncle of HeemSingh was lying there.”

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“At that time I did not see tractor of Heem Singh, neither sawHeem Singh. Whether there is any enmity between Heem Singhand Bhanwar Singh, I do not know, I reside around 5 km awayfrom them.”

F“If Heem Singh is involved in the murder of Bhanwar Singh, I amnot aware about that.”

24. Evidence of PW4 Hamer Singh – PW4’s evidenceestablishes that: (a) there was a land dispute between the respondentand Bhanwar Singh, in relation to which Bhanwar Singh had lodged aGpolice report; (b) The respondent’s father had been ‘treated’ by BhanwarSingh by performing witchcraft on him, but he died of the snake bite; (c)the respondent personally told him to inform Bhanwar Singh that hewould kill him by for causing the death of his father; (d) Bhanwar Singhhad lodged a complaint with the police in regard to the death threatissued by the respondent to him; and (e) when he came to know ofH

Bhanwar Singh’s death, he immediately suspected the respondent. Thisis based on the following evidence:

“Bhanwar Singh is uncle of Heem Singh. There is land disputebetween them from last 5-7 years. In this respect Bhanwar Singhalso lodged a report at police station Khamnaur. I do not rememberexact time. 2-3 years ago snake also bite Nathu Singh the fatherof Heem Singh. On that Bhanwar Singh also performed witchwork on him. Nathu Singh was also taken to hospital but he couldnot survive, died after 15-20 days. Nathu Singh died and next dayI went to meet him, after meeting returning back to my house atthat time outside the house of Nathu Singh, Nathu Singh’s sonHeem Singh was sitting on front tyre of his tractor, who stoppedme and said that you should say to Bhanwar Singh that I will killhim by hitting either with tractor or motorcycle. I said Heem Singhthat what he did, why are you asking to kill him. On this HeemSingh said to me that he is behind my house therefore, ..... illegible...after death of Nathu Sing on the same day Bhanwar Singh toldme that Heem Singh has thrown me out of his house that youmust not come in funeral of my father therefore, Bhanwar Singhdid not come in funeral of Nathu Singh. On stating to BhanwarSingh what Heem Singh said to me, Bhanwar Singh said thatHeem Singh cannot kill me despite that I have lodged report inpolice. On the day when I heard about death of Bhanwar Singh invillage at around 6-7 hours, at that time I guessed that BhanwarSingh was killed by Heem Singh or through him. Today also sayingsame thing.”

“2. It is correct that doubt of murder of Bhanwar Singh by HeemSingh to me was due to land dispute between them and threat tokill Bhanwar Singh by Heem Singh through me and still havedoubt.”

25. Evidence of Bhanwar Singh (SHO, Devgarh) – Hisevidence shows that the respondent did initially take leave for the deathof his brother in-law. This is based on the following evidence:

“Shri Heem Singh No. 642 has filed an application requesting forone casual leave and one G.H. due to death of his brother-in-lawin his family, on which I sanctioned…Thereafter, the saidConstable after being present before me on 19.08.02 filed AB

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Aapplication requesting for sanction order and for taking decisionon 3 days absence, on which I passed sanction order grantedsanction for 3 days absence as C.L.”

26. Evidence of Nana Lal (SHO, Khamnaur) – His evidencehighlights that the police investigating Bhanwar Singh’s death added theBoffence under Section 302 of the IPC based on the evidence of JodhSingh PW1. He also acknowledged that Jodh Singh changed his stancebefore the Court, however, did not offer any justification for it. This isbased on the following evidence:

“On the basis of preliminary investigation it was found that thereCwas serious previous enmity between Heem Singh and deceasedBhanwar Singh. Due to this enmity Heem Singh S/o Nathu SinghRajput for murder of his uncle Bhanwar Singh conspired in awell-planned manner with his companions Iqbal Khan and LokeshGaurva and killed him by hitting him with tractor and by causinginjuries on head by hitting with iron rod. Fard information ofDaccused persons under Section 27 of Evidence Act and jeep andtractor with trolley and iron rod are recovered. At the instance ofaccused persons place of incident is pointed out.”

“Question - 2. You have done investigation till 2 months underSections 304A and 279 IPC, whether during said period nobodyEtold you that Bhanwar Singh was murdered?

Answer - During the period of one month witness Babudas on11.09.02 told about presence of 2-3 persons at the spot of incident.

Question - 3. Whether Babudas is an eye witness of the incidentor not?F

Answer - No.

Question - 4. Whether during this period of one month from 15.08.02you have recorded statement of any eye witness that BhanwarSingh is murdered?

GAnswer - No.

Question - 5. Under whose statement you altered the offenceunder Section 302 IPC?

Answer - Offence is altered due to the statement of Jodh Singh.

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Question - 6. Do you know that Jodh Singh has not stated beforethe Court that I have told police about murder. Rather he said thatthey took statement by beating me and the same is also recordedin the statement of Court?

Answer - It also came in the statement of Jodh Singh that aboutmurder he told to Pratap Singh and police and in argument witnessJodh Singh has stated that police threatened him beat him thentook statement which is wrong.”

27. Evidence of Sudhir Joshi (RPS Deputy Superintendent,Nathdwara) – He has stated in his evidence that the police’s image hasbecome tarnished due to the suspicions raised on Heem Singh’sinvolvement in the murder of Bhanwar Singh. This is based on thefollowing evidence:

“On preliminary investigation conducted by me absence ofconstable No. 642 Shri Heern Singh on .. illegible.. and byconspiring with his companions committing murder of his uncle,due to which this act of constable the image of police amongpublic has been blurred and … by newspapers and belief on policebecame suspicious in public.”

28. A complete review of the evidence indicates there was a pre-existing hostility between the respondent and Bhanwar Singh. This hostilityinitially arose in the context of a land dispute. The hostility betweenthem escalated exponentially after the death of the respondent’s fatherfor which he blamed Bhanwar Singh. It evidently rose to an extent wherethe respondent openly issued a death threat to Bhanwar Singh, leadingBhanwar Singh to file a police complaint against the respondentapprehending a threat from the respondent to his safety. As regards theincident leading to the death of Bhanwar Singh, the respondent and hisparked tractor were seen proximate in time and in terms of the locationwhere Bhanwar Singh’s dead body was found by both PW1 Jodh Singhand PW3 Shanker Singh. The respondent was found to be together withone of the co-accused proximate in time. These circumstances arecoupled with respondent’s movements at and around the time of themurder, commencing with but not confined to his being at the village onleave for two days coinciding with the murder. This may not have beensufficient to sustain a conviction on a charge of murder in the sessionstrial. But the State had sufficient material to conclude that the connection A

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Aof the respondent to the incident would affect the reputation of its policeforce and that the presence of the respondent as a member of the forcewas not in the interest of public administration. Whether on the basis ofthe evidence, the respondent could have been implicated in the conspiracyto commit murder of Bhanwar Singh is one aspect of the matter. Evidentlydirect evidence to sustain a charge of conspiracy is difficult to come byBeven in the course of a criminal trial. Quite independent of this is theissue whether the connection of the respondent with the circumstancesleading to the death of Bhanwar Singh affected his ability to continue inthe State police force without affecting its integrity and reputation. Thelatter aspect is the one on which the judgment of the Division Bench isCfound to be deficient in its reasoning.

H On a ‘preponderance of probabilities’

29. In M. Siddiq v. Suresh Das[6], a Constitution Bench of thisCourt has described the standard of ‘preponderance of probabilities’ inthe following terms:D

“720. The court in a civil trial applies a standard of proof governedby a preponderance of probabilities. This standard is also describedsometimes as a balance of probability or the preponderance ofthe evidence. Phipson on Evidence formulates the standardsuccinctly: If therefore, the evidence is such that the court canEsay “we think it more probable than not”, the burden is discharged,but if the probabilities are equal, it is not. [Phipson on Evidence.]In Miller v. Ministerof Pensions [Miller v. Minister of Pensions,(1947) 2 All ER 372], Lord Denning, J. (as the Master of Rollsthen was) defined the doctrine of the balance or preponderanceFof probabilities in the following terms: (All ER p. 373 H)

“(1) … It need not reach certainty, but it must carry a highdegree of probability. Proof beyond reasonable doubt doesnot mean proof beyond the shadow of doubt. The law wouldfail to protect the community if it admitted fanciful possibilitiesGto deflect the course of justice. If the evidence is so strongagainst a man as to leave only a remote possibility in his favourwhich can be dismissed with the sentence, “of course it is possible,but not in the least probable” the case is proved beyond reasonabledoubt, but nothing short of that will suffice.” (emphasis supplied)

H6 (2020) 1 SCC 1

721. The law recognises that within the standard of preponderanceof 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 principlethus: (p. 37)

“… So also in civil cases, the case must be proved by apreponderance of probability, but there may be degrees ofprobability within that standard. The degree depends on thesubject-matter.” (emphasis supplied) The disciplinary enquiry wasconvened on a serious charge of misconduct – that the respondentas a member of the police force had committed an act of murderwhile on leave. As the above extract indicates, even within thestandard of a preponderance of probabilities, the degree dependson the subject matter.

I Judicial review over disciplinary matters

30. We have to now assess as to whether in arriving at its findingsthe High Court has transgressed the limitations on its power of judicialreview. In Moni Shankar v. Union of India[7], a two judge Bench ofthis Court had to assess whether the Central Administrative Tribunalhad exceeded its power of judicial review by overturning the findings ofa departmental enquiry by re-appreciating the evidence. In regard to thescope of judicial review, the Court held thus:

“17. The departmental proceeding is a quasi-judicial one. Althoughthe provisions of the Evidence Act are not applicable in the saidproceeding, principles of natural justice are required to be compliedwith. The courts exercising power of judicial review areentitled to consider as to whether while inferringcommission of misconduct on the part of a delinquent officerrelevant piece of evidence has been taken intoconsideration and irrelevant facts have been excludedtherefrom. Inference on facts must be based on evidencewhich meet the requirements of legal principles. The Tribunalwas, thus, entitled to arrive at its own conclusion on the premisethat the evidence adduced by the Department, even if it is takenon its face value to be correct in its entirety, meet the requirementsof burden of proof, namely, preponderance of probability. If on A

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Asuch evidence, the test of the doctrine of proportionality has notbeen satisfied, the Tribunal was within its domain to interfere. Wemust place on record that the doctrine of unreasonableness isgiving way to the doctrine of proportionality. (See State of U.P. v.Sheo Shanker Lal Srivastava [(2006) 3 SCC 276 : 2006 SCC(L&S) 521] and Coimbatore District Central Coop. Bank v.BEmployees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68])”

(emphasis supplied)

31. The learned Single Judge placed reliance on judgments whichenunciate that the mere acquittal in the criminal case did not absolve theCrespondent from the charge of misconduct in departmental proceedings.The Single Judge held that:

(i) The departmental enquiry was conducted in accordance withlaw;

(ii) The statement of Jodh Singh in the course of his examination-Din-chief as an eye-witness sufficiently proved the allegations;and

(iii) Since the charge of murder stood proved, all the other chargesstood established.

32. The Division Bench found fault with the Single Judge for notEhaving seen the evidence of Jodh Singh in its entirety. A two-Judge Benchof this Court in P. John Chandy and Co. (P) Ltd. v. John P. Thomas[8],has held:

“For proper appraisal of evidence, a court must consider the wholestatement. Cross-examination constitutes an important part of theFstatement 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. Thiscriticism of the decision is not unfounded.G

33. In exercising judicial review in disciplinary matters, there aretwo ends of the spectrum. The first embodies a rule of restraint. Thesecond defines when interference is permissible. The rule of restraintconstricts the ambit of judicial review. This is for a valid reason. The H8 (2002) 5 SCC 90

determination of whether a misconduct has been committed lies primarilywithin the domain of the disciplinary authority. The judge does not assumethe mantle of the disciplinary authority. Nor does the judge wear the hatof an employer. Deference to a finding of fact by the disciplinary authorityis a recognition of the idea that it is the employer who is responsible forthe efficient conduct of their service. Disciplinary enquiries have to abideby the rules of natural justice. But they are not governed by strict rulesof evidence which apply to judicial proceedings. The standard of proofis hence not the strict standard which governs a criminal trial, of proofbeyond reasonable doubt, but a civil standard governed by apreponderance of probabilities. Within the rule of preponderance, thereare varying approaches based on context and subject. The first end ofthe spectrum is founded on deference and autonomy – deference to theposition of the disciplinary authority as a fact finding authority andautonomy of the employer in maintaining discipline and efficiency of theservice. At the other end of the spectrum is the principle that the courthas the jurisdiction to interfere when the findings in the enquiry are basedon no evidence or when they suffer from perversity. A failure to considervital evidence is an incident of what the law regards as aperversedetermination of fact. Proportionality is an entrenched featureof our jurisprudence. Service jurisprudence has recognized it for longyears in allowing for the authority of the court to interfere when thefinding or the penalty are disproportionate to the weight of the evidenceor misconduct. Judicial craft lies in maintaining a steady sail betweenthe banks of these two shores which have been termed as the two endsof the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whetherthe finding in a disciplinary enquiry is based on some evidence an initialor threshold level of scrutiny is undertaken. That is to satisfy theconscience of the court that there is some evidence to support the chargeof misconduct and to guard against perversity. But this does not allowthe court to re-appreciate evidentiary findings in a disciplinary enquiryor to substitute a view which appears to the judge to be more appropriate.To do so would offend the first principle which has been outlined above.The ultimate guide is the exercise of robust common sense without whichthe judges’ craft is in vain.

J The effect of an acquittal

34. In the present case, we have an acquittal in a criminal trial ona charge of murder. The judgment of the Sessions Court is a reflection ABC

DEF

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Aof the vagaries of the administration of criminal justice. The judgmentcontains a litany of hostile witnesses, and of the star witness resilingfrom his statements. Our precedents indicate that acquittal in a criminaltrial in such circumstances does not conclude a disciplinary enquiry. InSouthern Railway Officers Association v. Union of India[9], this Courtheld:B

“37. Acquittal in a criminal case by itself cannot be a ground forinterfering with an order of punishment imposed by the disciplinaryauthority. The High Court did not say that the said fact had notbeen taken into consideration. The revisional authority did so. Itis now a well-settled principle of law that the order ofCdismissal can be passed even if the delinquent official hadbeen acquitted of the criminal charge.”

(emphasis supplied)

In Inspector General of Police v. S. Samuthiram[10], a two-Judge Bench of this Court held that unless the accused has an “honorableDacquittal” in their criminal trial, as opposed to an acquittal due to witnessesturning hostile or for technical reasons, the acquittal shall not affect thedecision in the disciplinary proceedings and lead to automaticreinstatement. But the penal statutes governing substance or proceduredo not allude to an “honourable acquittal”. Noticing this, the CourtEobserved:

“Honourable acquittal

24. The meaning of the expression “honourable acquittal” cameup for consideration before this Court in RBI v. Bhopal SinghPanchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26FATC 619] . In that case, this Court has considered the impact ofRegulation 46(4) dealing with honourable acquittal by a criminalcourt on the disciplinary proceedings. In that context, this Courtheld that the mere acquittal does not entitle an employeeto reinstatement in service, the acquittal, it was held, hasGto be honourable. The expressions “honourable acquittal”,“acquitted of blame”, “fully exonerated” are unknown tothe Code of Criminal Procedure or the Penal Code, whichare coined by judicial pronouncements. It is difficult to define 9 (2009) 9 SCC 24H10 (2013) 1 SCC 598

precisely what is meant by the expression “honourablyacquitted”. When the accused is acquitted after fullconsideration of prosecution evidence and that theprosecution had miserably failed to prove the chargeslevelled against the accused, it can possibly be said thatthe accused was honourably acquitted.

25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it washeld that even in the case of acquittal, departmental proceedingsmay follow where the acquittal is other than honourable. In Stateof Assam v. Raghava Rajgopalachari [1972 SLR 44 (SC)] thisCourt quoted with approval the views expressed by Lord Williams,J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal168] which is as follows: (Raghava case [1972 SLR 44 (SC)] ,SLR p. 47, para 8)

“8. … ‘The expression “honourably acquitted” is one which isunknown to courts of justice. Apparently it is a form of order usedin courts martial and other extrajudicial tribunals. We said in ourjudgment that we accepted the explanation given by the appellant,believed it to be true and considered that it ought to have beenaccepted by the government authorities and by the Magistrate.Further, we decided that the appellant had not misappropriatedthe monies referred to in the charge. It is thus clear that the effectof our judgment was that the appellant was acquitted as fully andcompletely as it was possible for him to be acquitted. Presumably,this is equivalent to what government authorities term “honourablyacquitted”.’” (Robert Stuart case [ILR (1934) 61 Cal 168] , ILRpp. 188-89)

26. As we have already indicated, in the absence of any provisionin the service rules for reinstatement, if an employee is honourablyacquitted by a criminal court, no right is conferred on the employeeto claim any benefit including reinstatement. Reason is that thestandard of proof required for holding a person guilty by a criminalcourt and the enquiry conducted by way of disciplinary proceedingis entirely different. In a criminal case, the onus of establishingthe guilt of the accused is on the prosecution and if it fails toestablish the guilt beyond reasonable doubt, the accused is assumedto be innocent. It is settled law that the strict burden of proofrequired to establish guilt in a criminal court is not required A

B

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A

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Ain a disciplinary proceedings and preponderance ofprobabilities is sufficient. There may be cases where aperson is acquitted for technical reasons or the prosecutiongiving up other witnesses since few of the other witnessesturned hostile, etc. In the case on hand the prosecution did nottake steps to examine many of the crucial witnesses on the groundBthat the complainant and his wife turned hostile. The court,therefore, acquitted the accused giving the benefit of doubt. Weare not prepared to say that in the instant case, the respondentwas honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil NaduCService Rules do not provide so.” (emphasis added)

35. In the present case, the respondent was acquitted of the chargeof murder. The circumstances in which the trial led to an acquittal havebeen elucidated in detail above. The verdict of the criminal trial did notconclude the disciplinary enquiry. The disciplinary enquiry was notDgoverned by proof beyond reasonable doubt or by the rules of evidencewhich governed the criminal trial. True, even on the more relaxed standardwhich governs a disciplinary enquiry, evidence of the involvement of therespondent in a conspiracy involving the death of Bhanwar Singh wouldbe difficult to prove. But there are, as we have seen earlier, circumstancesemerging from the record of the disciplinary proceedings which bringElegitimacy to the contention of the State that to reinstate such an employeeback in service will erode the credibility of and public confidence in theimage of the police force.

K Conclusion

F36. Therefore, the direction of the Division Bench for reinstatementis set aside. In exercise of the jurisdiction under Article 142 of theConstitution, we direct that the cessation from service will notionallytake place on the respondent completing minimum qualifying service.The direction of the High Court that the respondent shall not be entitledto back wages is upheld. The retiral dues of the respondent shall beGcomputed and released on this basis within a period of three months.

37. The appeal is allowed in the above terms. No order as tocosts.

38. Pending application(s), if any, stand disposed of.

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