AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 1376
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, one Daulat Singh lodged a written complaint at Police Station, Khamnaur in relation to the death ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rding 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 the initial inquiry and record. 6. That you are an employee of disciplined department, has full knowledge of law and despite of havi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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: CHARGE No. 1 Said constable on 13.08.02 from Station House Officer, P.S. Devgarh get on one casual leave and one gazette leave sanctioned and left for his home who....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ysis 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. CHARGE No. 5 It is the charge against constable that he while joining duty on 19.08.02 at police station Devgarh by hiding reality and by telling reason of absence as accident of Bhanwar Singh he got sanctioned period of 3 leaves f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iplinary 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 constitute a clean acquittal but was founded on the benefit of doubt. 9. On the above grounds, it was urged that the High Court has transgressed the limitations on its power of judicial review in allowing the appeal, setting aside the judgment of the Single Judge and in interfering with the disciplinary penalty imposed by the Appellants. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hout 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. Involvement of a member of the police service in a heinous crime (if it is established) has a direct bearing on the confidence of society in the police and in this case, on his ability to serve as a member of the force. Such an individual is engaged by the State as a part of the machinery designed to preserve law and order. The State can legitimately assert that it is entitled to proceed against an employee in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 was acquitted by the Sessions Court on 8 October 2003. During the course of the criminal trial a succession of prosecution witnesses were declared hostile (PWs 3, 4, 5, 17, 18, 19, 20, 22, 23, 34). The Additional Sessions Judge found it unsafe to rely upon the evidence of the sole eye-witness....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atements 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 crane and for whom, you did not know about that. Yes, it is true that I am not aware about that. 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 I mentioned, he is resident of Chundavte ka Guda, Kunthwa, whose well is there where I repaired the crane. 7. Is it correct that after killing of Bhanwar Singh by Iqbal the jeep which passed from there, which passed after crushing cycle and Bhanwar Singh? Yes, it is true but Iqbal went af....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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 attempted a cure. The High Court also noted that the evidence of PWs 5, 6, 7, 8, 9 and 10 in the disciplinary enquiry was of only a formal nature. 18. The High Court held that the cross-examination of Jodh Singh was ignored in the course of the disciplinary enquiry and was not referred to by the disciplinary authority while arriving at its findings. On the recovery of the jeep and tractor with a trolley and iron rod, the High Court observed that the evidence of the Investigating Officer contains a "vague statement" that the recoveries of the offending article....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overnment 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 fir that the person should be summoned and examined personally, or if either party, namely the presenting officer or the delinquent officer insists on the personal attendance of the witness, arrangements should be made for the personal attendance of such witness. (6)(b). The enquiring Authority may, for good and sufficient reasons to 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 days of the order or within such further time not exceeding 10 days as the Enquiring Authority ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produces originally. (6)(B)(a). Where a Disciplinary Authority competent to impose any of the penalties specified in Clauses (i) to (iii) of Rule 14, but not competent to impose any of the penalties specified in Clauses (iv) to (vii) of Rule 14, has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regarding to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties spe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 enquiry, but because the High Court in an intra-court appeal conducted the exercise while setting aside the penalty. Apart from the somersault by Jodh Singh in his cross examination, which has largely weighed with the High Court, there are other crucial aspects which emerge from the record in the disciplinary enquiry. To them we now turn. To ensure brevity, we summarize the point before excerpting from the deposition. 21. Evidence of PW1 Jodh Singh - Quite apart from the excerpts from the cross examination of PW1, which have been noticed by the High 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;....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 came back from Kotela at that time on Bheel Basti Nala Road dead body of Bhanwar Singh who is uncle of Heem Singh was lying there. At that time I did not see tractor of Heem Singh, neither saw Heem Singh. Whether there is any enmity between Heem Singh and Bhanwar Singh, I do not know, I reside around 5 km away from them. If Heem Singh is involved in the murder of Bhanwar Singh, I am not aware about that. 24. Evidence of PW4 Hamer Singh - PW4's evidence establishes that: (a) there was a land dispute between the Respondent and Bhanwar Singh, in relation to which Bhanwar Singh had lodged a police report; (b) The Respondent's father had been 'treated' by Bhanwar Singh by performing witchcraft on him, but he died of the snake bite; (c) the Respondent personally tol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er, 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 offence Under Section 302 of the Indian Penal Code based on the evidence of Jodh Singh PW1. He also acknowledged that Jodh Singh changed his stance before the Court, however, did not offer any justification for it. This is based on the following evidence: On the basis of preliminary investigation it was found that there was serious previous enmity between Heem Singh and deceased Bhanwar Singh. Due to this enmity Heem Singh S/o Nathu Singh Rajput for murder of his uncle Bhanwar Singh conspired in a well-planned manner with his companions Iqbal Khan and Lokesh Gaurva and killed him by hitting him with tractor and by causing injuries on head by hitting with iron rod. Fard information of Accused persons Under Section 27 of Evidence Act and jeep and tractor with trolley and iron rod are recovered. At the instance of Accused ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ards 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 together with one of the co-Accused proximate in time. These circumstances are coupled with Respondent's movements at and around the time of the murder, commencing with but not confined to his being at the village on leave for two days coinciding with the murder. This may not have been sufficient to sustain a conviction on a charge of murder in the sessions trial. But the State had sufficient material to conclude that the connection of the Respondent to the incident would affect the reputation of its police force and that the presence of the Respondent as a member of the force was not in the interest of public administration. Whether on the basis of the evidence, the Respondent could have been implicated in the conspiracy to commit murder of Bhanwar Singh is one aspect of the matter. Evidently direct evidence to sustain a charge of conspiracy is difficult to come by even in the course of a criminal trial. Qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 probabilities, the degree depends on the subject matter. I Judicial review over disciplinary matters 30. We have to now assess as to whether in arriving at its findings the High Court has transgressed the limitations on its power of judicial review. In Moni Shankar v. Union of India (2008) 3 SCC 484, a two judge Bench of this Court had to assess whether the Central Administrative Tribunal had exceeded its power of judicial review by overturning the findings of a departmental enquiry by re-appreciating the evidence. In regard to the scope of judicial review, the Court held thus: 17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is 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 apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the Rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdicti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. But the penal statutes governing substance or procedure do not allude to an "honourable acquittal". Noticing this, the Court observed: Honourable acquittal 24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541: 1994 SCC (L & S) 594: (1994) 26 ATC 619]. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by j....