TaxTMI 
TaxTMI 
2020 (10) TMI 1376
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....ure for Rajasthan at Jodhpur. The Respondent, who was a police constable, filed a petition Under Article 226 of the Constitution to challenge his dismissal from service after a disciplinary enquiry. A Single Judge of the High Court, by a judgment dated 1 February 2018, dismissed the petition. The Division Bench reversed the judgment and concluded that there is no evidence in the disciplinary enquiry to sustain the finding that the Respondent committed a murder while on leave from duty. Independently, he has also been acquitted in a Sessions trial on the charge of murder. The Division Bench granted the Respondent reinstatement in service with no back wages for the seventeen years that elapsed since his termination. The State comes in appeal. B Murder, trial and disciplinary enquiry 2. In 1992, the Respondent was appointed as a Constable in the police service of Rajasthan. On 13 August 2002, he proceeded on leave and had to report back on duty on 16 August 2002. He failed to do so and eventually reported for work on 19 August 2020. He sought and was granted permission for over-staying his leave on the ground that his brother-in-law, Shankar Singh had died. On 15 August 2002, on....
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....ut R/o Ravo ki Gudli, who was working in PWD Department, Nathdwara and was going on his duty and because of dispute regarding land between you and Bhanwar Singh you with help of Lokesh, Iqbal to kill Bhanwar Singh hit him with jeep at Bheel Basti Kunthwa, due to which he fell down and while shouting your companion Iqbal brought iron rod from jeep and hit on forehead of Bhanwar Singh due to which he died on the spot. You are an employee of disciplined department and have knowledge of law, you have committed such a grievous offence, 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 and your companion ran away from the spot and having knowledge of law gave form of an accident to the murder, which is proved from records and initial inquiry. 5. That you after the said incident by joining duty 19.08.02 at police station Devgarh while hiding reality and by telling reason of absence as accident of Bhanwar Singh you get sanctioned period 3 leaves from the SHO as casual leaves where you had committed murder. Thus, you have knowingly mislead your superior officer, which is proved from ....
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....larification or declaring PW-21 as hostile. Thus, there is no evidence on record for conviction of Accused Lokesh Gaurva Under Sections 302, 201, 120B Indian Penal Code read with Section 34 Indian Penal Code. (emphasis supplied) The above extract indicates that the Public prosecutor did not have PW21 declared hostile, though this should have been ordinarily, the correct course of action. The Additional Sessions Judge declined to believe the testimony of PW21 insofar as the Respondent and co-Accused Iqbal were concerned, finding that the witness was inconsistent and untrustworthy. The Respondent was given the benefit of doubt and was acquitted. 6. The disciplinary enquiry on the charge of murder proceeded with much the same evidence. Jodh Singh was the star witness during the disciplinary proceedings. During the course of the disciplinary enquiry, the enquiry officer recorded the statements of PW1 Jodh Singh, PW2 Devi Singh, PW3 Shankar Singh and PW4 Hamer Singh among several witnesses. The disciplinary enquiry led to the submission of the enquiry report. The enquiry officer found the charges to be proved. The findings on each of the charges are extracted below: CH....
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....l SHO Khamnaur PW-9 also in his statement against the charged constable on finding offence verified arresting him and seizure of iron rod, jeep & tractor used in the incident. Thus, from the aforesaid analysis the said charge is found as completely proved. The charged constable in defense of said charge has produced a copy of order passed by the Hon'ble Additional Sessions Judge Nathdwara in case related to said incident, after perusal of which it is found that the Hon'ble Court has not completely acquitted the said constable rather acquitted by giving him the benefit of doubt. From this it is clear that the Hon'ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred. CHARGE No. 4 It is the charge against constable that he after committing murder of Bhanwar Singh, along with his companions ran away from the spot and having knowledge of law gave form of an accident to the murder. PW-1 Jodh Singh, PVV-3 Shankar Singh, PW-4 Hamer Singh, PW-9 Nanalal has confirmed the aforesaid charge. Thus, said charge is completely proved from the enquiry. ....
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....ings in a disciplinary enquiry the court cannot reappreciate the evidence in the manner of an appellate court, and so long as the finding of misconduct is based on some evidence, no interference is warranted; (iii) The High Court has failed to ascribe adequate weight to the orders in the disciplinary proceedings: the order dated 11 December 2003 pursuant to departmental proceedings; the order dated 17 June 2005 of the Inspector General of Police exercising appellate powers; and the order dated 29 August 2008 in review proceedings passed by the Home Department; and (iv) The evidence in the disciplinary enquiry indicates that: (a) There was enmity between the deceased and the Respondent arising 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 from the Respondent; (d) The evidence of PW1 Jodh Singh and PW3 Shanker Singh showed the presence of the Respondent in the vicinity; and (e) The judgment in the criminal trial, acquitting the Respondent of the offence of murder, did not....
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....w. 11. On the basis of the above submissions, it has been urged that the findings in the departmental enquiry were perverse and have been correctly set aside by the Division Bench of the High Court. The Respondent has been out of service for 17 years and has (it has been urged) had to combat the social stigma of being terminated from service. 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 to the involvement of the Respondent in the murder of Bhanwar Singh. According the Respondent, the disciplinary enquiry pertains to an event which took place outside the fold of his service. It was asserted that the disciplinary enquiry in regard to the involvement of the Respondent in a murder bore no nexus to his employment. This submission cannot stand scrutiny, having regard to the nature of the employment and the position of the Respondent as member of the police force. The Respondent was a constable in the service of the police department of the State of Rajasthan since 1992. Involve....
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.... sanctioned after he joined back on duty. The State as his employer claims that the Respondent concealed the intervening circumstance of his involvement in the murder of Bhanwar Singh on 15 August 2002. Now it is important to note that the Respondent was placed under arrest on 16 September 2002 much after he had rejoined duty and was released on bail on 30 October 2002. Since the arrest took place after he rejoined duties, it cannot be said that there was a suppression by him of his custodial detention when he joined duties on 19 August 2002. In any case, this part of the charges is subsidiary to the main charge in the disciplinary proceedings. In the departmental proceedings, broadly speaking, the charges that were leveled against the Respondent were: (i) Over-staying leave by a period of three days beyond the leave that was sanctioned; (ii) Not seeking an extension of leave from the superior officer; (iii) Involvement in the murder of Bhanwar Singh (the Respondent is alleged to have run away from the scene of offence and tried to give it the colour of an accident); (iv) Getting additional leave sanctioned by suppressing the correct reason on a ....
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....he relevant part of the cross-examination which has been recorded in question and answer form in the enquiry proceedings: Cross through Pairokar Heem Singh Const. No. 642 1. Question - After 20 days of this incident Sarpanch Shri Pratap Singh called at his house and told that you shall get written name of Heem Singh and Lokesh also along with Iqbal, I refused then Sarpanch Ji told that you have to get name of Heem Singh written therefore, I told name of them in the statements given to police. 2. Is it correct that you saw Iqbal while killing Bhanwar Singh but at that time Heem Singh was not present there at the time of incident. Yes, It is true. 3. Is it correct that you did not know about giving of threats to kill by Heem Singh to Bhanwar Singh. Yes, it is true. 4. Is it correct that on that day you are going to Gudla from Kunthwa from road going from Nathdwara to Ghata Ghotiya and Heem Singh met you while going on motorcycle from Kunthwa to Nathdwara. The place where Heem Singh met, on moving 300 ft forward from there you saw Iqbal while killing Bhanwar Singh. Yes, it is true. 5. Is it correct that from whom Heem Singh brought....
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.... the image of police has blurred. F The judgment of the Division Bench 17. The Division Bench of the High Court observed that quite apart from the cross-examination, the examination-in-chief of Jodh Singh was not susceptible to the inference that the Respondent was even remotely connected with the murder. The imputation against the Respondent was that he had collaborated with Iqbal and Lokesh, and murdered Bhanwar Singh by running him over with a jeep. On this imputation, the High Court held that there is no evidence to establish that the Respondent had conspired or collaborated with the said two persons to murder Bhanwar Singh. On the contrary, High Court noted, the cross-examination of PW1 Jodh Singh indicated that he was instigated by the Sarpanch to falsely implicate the Respondent and that while he had seen the assault by Iqbal, the Respondent was not present at the scene of offence. Further, the evidence of PW2 Devi Singh and PW3 Shankar Singh did not, according to the High Court, implicate the Respondent, and PW4 Hamer Singh only spoke about the previous dispute arising from the death of the father of the Respondent from a snake bite for which Bhanwar Singh had attempt....
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....ce thereof, while giving opportunity of Examination-in-Chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reason in writing. The Inquiring Authority may also put such questions to the witnesses of the parties, as it thinks fit, in the interest of justice. An opportunity for hearing the arguments shall be given to the parties. Note: If the Government Servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in Sub-rule (6)(a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority. (6)(a)(1). The evidence of any person which is of a formal character may be given by affidavit and may, subject to all just exception, be accepted in evidence in departmental proceedings. Where the enquiry officer thinks ....
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.... the Inquiry Authority, may proceed with the enquiry in the absence of such Government Servant(s). (6)(A). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not including in the list given to the Government Servant or may itself call for new evidence or recall re-examine any witness and such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry for three clear days before the production of such new evidence, exclusive of the days of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Government Servant to produce new evidence, if it is of the opinion that production of such evidence is necessary in the interest of justice. Note: New evidence shall not be permitted or called for or, any witness shall not be recalled to fil....
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....t setting out the findings on each charge and the reasons therefore. (9). The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other. G Evidence in the disciplinary enquiry 20. Elaborate as it is, the judgment of the Division Bench of the High Court ought to have scrutinized other aspects of the evidentiary record. These facets would have enabled the court to form, to use a term familiar to the language of judicial discourse, an 'overall perspective of the matter'. As we shall presently indicate, this has a bearing on whether an order of reinstatement (which the High Court has granted while setting aside the disciplinary findings) does justice to the evidentiary record. This Court has to undertake the exercise, not in order to re-appreciate the findings in the enqui....
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....hat he met the Respondent on the date of the incident at the spot where his tractor was parked, along with another person whom he has not identified. Moreover, when he was coming back after 30/45 minutes, he saw the dead body of Bhanwar Singh. However, he states that he is not aware of a prior enmity between the Respondent and Bhanwar Singh, and is not sure of Heem Singh's involvement in the death of Bhanwar Singh. This is based on the following evidence: On 15.08.02 at around 5-6 hours I after shutting down my tea shop going towards fields from Kunthwa on my cycle. After going through fields going to Kotela, from behind Heem Singh Singh of Ravo ki Gudli who is a constable came on motorcycle and moved ahead me. I reached at Nala Bheel Basti Valley where near wall saw parked tractor of Heem Singh. Heem Singh went back from there to Kunthwa who asked me that where you are going. I said that I am going to Kotela. One person is sitting at the steering of tractor, whom I don't know, to whom I asked that what happened to tractor he replied that fuel ran out, owner went to bring fuel. At that time I did not see any other person. After around half an hour or 3/4th hour I c....
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....kill me despite that I have lodged report in police. On the day when I heard about death of Bhanwar Singh in village at around 6-7 hours, at that time I guessed that Bhanwar Singh was killed by Heem Singh or through him. Today also saying same thing. 2. It is correct that doubt of murder of Bhanwar Singh by Heem Singh to me was due to land dispute between them and threat to kill Bhanwar Singh by Heem Singh through me and still have doubt. 25. Evidence of Bhanwar Singh (SHO, Devgarh) - His evidence shows that the Respondent did initially take leave for the death of his brother in-law. This is based on the following evidence: Shri Heem Singh No. 642 has filed an application requesting for one casual leave and one G.H. due to death of his brother-in-law in his family, on which I sanctioned...Thereafter, the said Constable after being present before me on 19.08.02 filed application requesting for sanction order and for taking decision on 3 days absence, on which I passed sanction order granted sanction for 3 days absence as C.L. 26. Evidence of Nana Lal (SHO, Khamnaur) - His evidence highlights that the police investigating Bhanwar Singh's death added the of....
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....owing evidence: On preliminary investigation conducted by me absence of constable No. 642 Shri Heem Singh on.. illegible.. and by conspiring with his companions committing murder of his uncle, due to which this act of constable the image of police among public has been blurred and ... by newspapers and belief on police became suspicious in public. 28. A complete review of the evidence indicates there was a pre-existing hostility between the Respondent and Bhanwar Singh. This hostility initially arose in the context of a land dispute. The hostility between them escalated exponentially after the death of the Respondent's father for which he blamed Bhanwar Singh. It evidently rose to an extent where the Respondent openly issued a death threat to Bhanwar Singh, leading Bhanwar Singh to file a police complaint against the Respondent apprehending a threat from the Respondent to his safety. As regards the incident leading to the death of Bhanwar Singh, the Respondent and his parked tractor were seen proximate in time and in terms of the location where Bhanwar Singh's dead body was found by both PW1 Jodh Singh and PW3 Shanker Singh. The Respondent was found to be togeth....
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....doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice. (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)], where he formulated the principle thus: (p. 37) ... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. (emphasis supplied) The disciplinary enquiry was convened on a serious charge of misconduct - that the Respondent as a member of the police force had committed an act of murder while on leave. As the above extract indicates, even within the standard of a preponderance of probabi....
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....) Since the charge of murder stood proved, all the other charges stood established. 32. The Division Bench found fault with the Single Judge for not having seen the evidence of Jodh Singh in its entirety. A two-Judge Bench of this Court in P. John Chandy and Co. (P) Ltd. v. John P. Thomas (2002) 5 SCC 90, has held: For proper appraisal of evidence, a court must consider the whole statement. Cross-examination constitutes an important part of the statement of a witness and whatever is stated in the examination-in-chief, stands tested by the cross-examination. While embarking on the exercise the Division Bench re-appreciated the evidence in the manner of a first appellate court. This criticism of the decision is not unfounded. 33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a Rule of restraint. The second defines when interference is permissible. The Rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the ....
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.... effect of an acquittal 34. In the present case, we have an acquittal in a criminal trial on a charge of murder. The judgment of the Sessions Court is a reflection of the vagaries of the administration of criminal justice. The judgment contains a litany of hostile witnesses, and of the star witness resiling from his statements. Our precedents indicate that acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. In Southern Railway Officers Association v. Union of India (2009) 9 SCC 24, this Court held: 37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge. (emphasis supplied) In Inspector General of Police v. S. Samuthiram (2013) 1 SCC 598, a two-Judge Bench of this Court held that unless the Accused has an "honorable acquittal" in their criminal trial, as opposed to....
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.... our judgment was that the Appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted". (Robert Stuart case [ILR (1934) 61 Cal 168], ILR pp. 188-89) 26. As we have already indicated, in the absence of any provision in the service Rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the Accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the Accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other ....