1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3340 of 2020

Arising out of SLP (C) No. 30763 of 2019

The State of Rajasthan & Ors . ...Appellants

Versus

Heem Singh ...Respondent

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

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

A The appeal

B Murder, trial and disciplinary enquiry

C Submissions of counsel

D Proof of misconduct in disciplinary proceedings

E Findings of the disciplinary enquiry

F The judgment of the Division Bench

PART A

2

G Evidence in the disciplinary enquiry

H On a ‘preponderance of probabilities’

I Judicial review over disciplinary matters

J The effect of an acquittal

K Conclusion

A The appeal

1 This appeal is from a judgment dated 24 April 2019 of a Division Bench of the

High Court of Judicature 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 D ivision 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.

PART B

3

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 w ork 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 of his brother Bhanwar Singh, caused by an accident with an unknown

vehicle. The police initially registered a crime under Sections 209 and 304A of the

Indian Penal Code

1

. The statements of Daulat Singh, Jodh Singh, Meera and Hamer

Singh were recorded under Section 161 of the Code of Criminal Procedure 1973

2

. It

appeared during the course of the investigation that the death was homicidal. The

investigation by the police proceeded for an offence punishable under the provisions

of Section 302 of the IPC. T he respondent was arrested on 9 September 2002.

There were two co-accused, Lokesh Gurva and Iqbal Khan. After the investigation

was completed, a charge- sheet was filed under Sections 302, 201 and 120B.

Sessions Case 3 of 2003 was committed for trial to the court of the Additional

Sessions Judge, Nathdwara .

3 The case of the prosecution was that there was a dispute over land between

the respondent and Bhanwar Singh. Moreover, the respondent’s father had been

1

“IPC”

2

“CrPC”

PART B

4

treated for a snake bite by Bhanwar Singh but his witchcraft did not yield result,

leading to the death of the father. According to the prosecution, the respondent bore

a grudge towards the deceased due to this incident and had proclaimed earlier that

he would kill him.

4 During the pendency of the criminal trial, a memorandum was issued on 18

January 2003 to the respondent, followed by a charge- sheet, convening disciplinary

proceedings under the provisions of Rule 16 of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules 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.

Devgarh got one casual leave and one gazette leave

sanctioned and left for your home, as per which you have to

attend duty on 16.08.02 at A.M. but you did not attend the

duty on time and attended the duty on 19.08.02 after

remaining absent for 3 days, which is proved from record.

2. That even during the absence period you did not inform

any officer about the reason of your absence and also not

submitted any extension, which is proved from record.

3. That you at your residence on 15.08.02 during leave Shri

Bhanwar Singh S/o Chandan Singh Rajput 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

3

“the Rules”

PART B

5

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 having knowledge of law

you committed a heinous crime, which seriously hurt the

image of police department among general public and your

said act has blurred the image of police among public. Your

said act comes under category of 'savior only eater', which is

proved from the initial inquiry and r ecord.”

5 By a judgment dated 8 October 2003, the Additional Sessions Judge

acquitted the respondent and the two co- accused, giving them the benefit of doubt.

The Additional Sessions Judge observed that PW1 Meera and PW2 Poorna Devi,

the daughters of the deceased, were not present at the scene of offence and their

evidence was hearsay. A succession of witnesses – PW3 Jai Singh, PW4 Babudas,

PW5 Sundarlal, PW17 Jagat Singh, PW18 Kishan Singh, PW19 Banshi Lal, PW20

Shankar Singh, PW22 Devi Singh, PW23 Kaisar Singh and PW34 Pratap Singh –

were declared hostile during the course of the trial. The case turned on the evidence

of PW21 Jodh Singh, the alleged eye- witness. The Additional Sessions Judge found

that on 7 September 2000, about 2 years prior to the incident, the deceased had

PART B

6

intimated the SHO at Khamnaur P.S. recording a threat to his life inter alia from the

respondent. The SHO registered a report under Section 107 of the CrPC and

conducted proceedings. Although finding prima facie that there was enmity between

the respondent and the deceased, the Additional Sessions Judge declined to accept

the evidence of PW21. While evaluating it in the context of the co- accused, Lokesh,

the Additional Sessions Judge noted:

“Thus, this evidence is prima facie … that accused Heem

Singh has enmity with deceased Bhanwar Singh. Whether

due to this enmity Heem Singh by conspiring with co- accused

persons by telling accident by jeep with aid of co-accused

Iqbal committed murder of Bhanwar Singh, on this point the

observation of this Court is that accused Lokesh Gaurva who

was told as jeep driver by the witness Jodh Singh at the time

of incident, against that Lokesh Gaurva by involving with

Heem Singh at the time of incident hitting Bhanwar Singh by

jeep such evidence is not given by PW-21 Jodh Singh.

Additional Public Prosecutor on this point during cross -

examination has not taken on record by seeking any

clarification or declaring PW-21 as hostile. Thus, there is

no evidence on record for conviction of accused Lokesh

Gaurva under Sections 302, 201, 120B IPC read with Section

34 IPC.” (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. T he

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.

PART B

7

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 has not attended the

duty on time and attended the duty after 3 days, which is

proved from the statements of Shri Bhanwar Singh, S.I. SHO

Devgarh, Shri Bhanwar Singh Const. No.351, Shri Rajesh

Kumar, Const. No. 563 & Shri Munishwar Mishra, Ka. Ii. and

from copy of GD Report. Thus, I found the said charge as

completely proved.

CHARGE NO.2

The Constable during the absence period did not inform any

officer about the reason of his absence and also not

submitted any extension, whi ch is proved from records and

statements of Shri Muniswar Mishra, Ka. L i. Force Branch,

Shri Bhanwar Singh S.I. SHO Devgarh. Thus, I found the said

charge as completely proved.

CHARGE NO.3

The said constable at his residence on 15.08.02 during leave

Shri Bhanwar Singh S/o Chandan Singh Rajput 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 him and Bhanwar Singh, he 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 his

companion Iqbal brought iron rod from jeep and hit on

PART B

8

forehead of Bhanwar Singh due to which he died on the spot.

Thus, being an employee of disciplined department and

having knowledge of law, he has committed such a grievous

offence due to which image of police is blurred among public.

In respect of said charge the prosecution has produced

statements of Jodh Singh PW-1, Devi Singh PW-2, Shankar

Singh PW-3, Hamer Singh PW-4, out of which Jodh Singh

PW-1 in his statement at the time of incident has proved

presence of himself, charged constable and tractor at the

place of incident. Similarly, witness Shankar Singh PW-3

stated that he saw half an hour ago to the incident, the

charged constable roaming near place of incident and his

parked tractor. Similarly, witness Shri Hamer Singh PW-4

stated that there is prior enmity between charged constable

and deceased Bhanwar Singh and prior to the death of father

of charged constable, stating through witness to Bhanwar

Singh that I will kill him by hitting with jeep or tractor and the

incident of same kind is committed. Similarly, witness Shri

Nanalal SHO Khamnaur PW-9 also in his statement against

the charged constable on finding 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.

PART B

9

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 from the SHO as casual

leaves.

Said charge is proved from the statements of witnesses PW-7

Shri Rajesh Kumar, PW-6 Bhanwar Singh S.I. and aamad

report Ext. P-8 written by charged constable. Thus, I found

the said charge as completely proved.

CHARGE NO.6

It is the charge against constable that he being an employee

of disciplined department, has full knowledge of law and

despite of having knowledge of law he has committed a

heinous crime, which seriously hurt the image of police

department among general public.

Since, from the enquiry the Charge No. 1 to 5 are completely

proved. Thus, the said charge automatically gets completely

proved.”

7 The disciplinary authority issued a notice to show cause to the respondent on

23 October 2003, to which he submitted a response on 17 November 2003. On 11

December 2003, the District Superintendent of Police came to the conclusion that

though the respondent had been given the benefit of doubt in the criminal trial, the

charges against him stood established. H e was dismissed from service. The appeal

preferred by the respondent was dismissed by the Inspector General of Police on 17

June 2005. A review before the State Government was dismissed on 29 August

2008. This led to the institution of writ proceedings before the High Court. A learned

Single Judge of the High Court, by a judgment dated 1 February 2018, rejected the

Writ Petition. In appeal, the judgment of the Single Judge was reversed by the

PART C

10

Division Bench on 24 April 2019. By its judgment, the Division Bench directed re-

instatement of the respondent in service with consequential benefits but without

back-wages.

C Submissions of counsel

8 Mr Ashish Kumar, AAG appearing on behalf of the appellants submits that:

(i) In a disciplinary enquiry involving a charge of misconduct, the test is whether

the charge is established on a ‘preponderance of probabilities’ unlike in a

criminal trial whe re the prosecution has to establish their case ‘beyond

reasonable doubt’;

(ii) While exercising judicial review under Article 226 of the Constitution against

the findings in a disciplinary enquiry the court cannot reappreciate the

evidence in the manner of an appellate court, and so long as the finding of

misconduct is based on some evidence, no interference is 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:

PART C

11

(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 PW 1 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 a ppeal, setting aside the

judgment of the Single Judge and in interfering with the disciplinary penalty imposed

by the appellants.

10 On the other hand, Mr Jasmeet Singh, learned Counsel appearing on behalf

of the respondent submitted that:

(i) The departmental enquiry was concluded in violation of the rules governing

the enquiry. All the orders in the disciplinary enquiry were based on the

examination- in-chief of an alleged eye- witness, PW1 Jodh Singh, while

ignoring that his deposition was completely demolished in the course of the

cross- examination;

PART C

12

(ii) In the course of the cross-examination, PW1 Jodh Singh admitted that he had

named the respondent only under the pressure of the Sarpa nch. The

disciplinary authority as well as the appellate and reviewing authorities

ignored vital evidence, 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 on the entire record of the

Sessions trial in which the respondent was acquitted. The departmental

enquiry is based on a selective examination of the records of the Sessions

Court;

(iv) The entire evidence on record would demonstrate that the respondent was

not even remotely connected with the murder of Bhanwar Singh; and

(v) There is a “ minor charge” against the respondent of availing of three days

extra casual leave without informing the superior officer. On this charge, it has

been submitted that:

(a) The grant of additional casual leave was approved upon his joining

duties by the superior officer and the charge was duly modified to state

that the approval was taken by misrepresenting facts; the respondent

was alleged to have concealed his involvement in the crime of murder;

(b) If the charge of being involved in the murder is not established, this

charge will cease to exist; and

PART D

13

(c) Even assuming, without conceding, that the respondent was guilty of

taking casual leave without informing the superior, he was never guilty

of such conduct in the past and the leave was taken because of the

death of his brother-in-law.

11 On the basis of the above submissions, it has been urged that the findings in

the departmental enquiry were perverse and have been correctly set aside by the

Division Bench of the High Court. The respondent has been out of service for 17

years and has (it has been urged) had to combat the social stigma of being

terminated from service. 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. Involvement of a member of the police service in a heinous crime (if it is

PART D

14

established) has a direct bearing on the conf idence 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 S tate as a part of the machinery designed to preserve law and

order. The S tate can legitimately assert that it is entitled to proceed against an

employee in the position of the respondent in the exercise of its disciplinary

jurisdiction, for a breach of the standard of conduct which is expected of a member

of the state police service. Confidence of the S tate in the conduct and behaviour of

persons it has appointed to the police is integral to its duty to maintain law and

order. The real issue is whether the charge of misconduct stands established in this

case on the basis of some evidence, applying the evidentiary principle of a

preponderance of probabilities.

13 The standard of standard of proof in disciplinary proceedings is different from

that in a criminal trial. In Suresh Pathrella v. Oriental Bank of Commerce

4

, a two

judge Bench of this Court differentiated between the standard of proof in disciplinary

proceedings and criminal trials in the following terms:

“ …the yardstick and standard of proof in a criminal case is

different from the disciplinary proceeding. While the standard

of proof in a criminal case is a proof beyond all reasonable

doubt, the proof in a departmental proceeding is

preponderance of probabilities.”

4

(2006) 10 SCC 572

PART E

15

This standard is reiterated by another two- Judge Bench of this Court in Samar

Bahadur Singh v. State of U.P.

5

:

“Acquittal in the criminal case shall have no bearing or

relevance to the facts of the departmental proceedings as the

standard of proof in both the cases are totally different. In a

criminal case, the prosecution has to prove the criminal case

beyond all reasonable doubt whereas in a departmental

proceedings, the department has to prove only

preponderance of probabilities.”

E Findings of the disciplinary enquiry

14 On 13 August 2002, while posted at Police Station Devgarh, the respondent

took a day’s casual leave and one ‘gazetted leave’ and was to report back on 16

August 2002. It is admitted that he over-stayed his leave and joined on 19 August

2002. According to the respondent, the additional leave was sanctioned after he

joined back on duty. The State as his employer claims that the respondent

concealed the intervening circumstance of his involvement in the murder of Bhanwar

Singh on 15 August 2002. Now it is important to note that t he 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

5

(2011) 9 SCC 94

PART E

16

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, Jodh Singh (PW21 at the Sessions Trial) based on

the inconsistencies in his evidence. In fact, the trial judge even observed that no

steps had been taken by the Public prosecutor to have him declared hostile. The

acquittal of the respondent on the charge of murder was based on the now familiar

spectacle of prosecution witnesses turning hostile. It is true that the acquittal brought

PART E

17

finality to the question as to whether he had committed the offence of murder

punishable under the Penal Code. However, the disciplinary enquiry stood on a

broader footing. The disciplinary proceedings relat ed not merely to th e involvement

of the respondent in the murder, but to the violation of service rules and the impact

of his conduct on the image of the police force.

16 On the primary charge of the involvement of the respondent in the murder of

Bhanwar Singh, Jodh Singh (PW1 in the Disciplinary Enquiry) was the prime

witness, as in the criminal trial. Jodh Singh was an engine mechanic and stated in

the course of his examination on 18 July 2003 that two or three years earlier , the

respondent came to him with an engine crane for repair together with I qbal Khan

(who was also a co-accused at the Sessions t rial). The witness stated that I qbal

Khan had assaulted Bhanwar Singh with an iron rod when he was proceeding on a

cycle near Bheel Basti Nala. Further, h e stated that on the same day he had seen

the respondent about 300 feet away from the scene of offence going towards

Nathdawara on a cycle. Also, about 300 feet away from the scene of offence, he

found the tractor of the respondent parked. Jodh Singh claims to be an eye- witness

to the murder of Bhanwar Singh by Iqbal. In quite the same vein as he did during the

criminal trial, during the course of his cross examination, Jodh Singh did not support

his statements during the examination in chief. For the completeness of the record, it

is necessary to extract the relevant part of the cross-examination which has been

recorded in question and answer form in the enquiry proceedings:

“

Cross through Pairokar Heem Singh Const. No.642

PART E

18

1. Question - After 20 days of this incident Sarp anch 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 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 after

sitting in that.

8. Is it correct that you did not recognize the driver of jeep,

neither saw number of jeep nor recognized jeep that it

belongs to whom? Yes, it is true.”

The disciplinary authority arrived at its findings on the charge of misconduct

observing thus:

PART F

19

“In respect of said charge the prosecution has produced

statements of 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 statement at the time of incident has proved

presence of himself, charged constable and tractor at the

place of incident. Similarly, witness Shankar Singh PW-3

stated that he saw half an hour ago to the incident, the

charged constable roaming near place of incident and his

parked tractor. Similarly, witness Shri Hamer Singh PW-4

stated that there is prior enmity between charged constable

and deceased Bhanwar Singh and prior to the death of father

of charged constable, stating through witness to Bhanwar

Singh that I will kill him by hitting with jeep or tractor and the

incident of same kind is committed. Similarly, witness Shri

Nanalal SHO Khamnaur PW-9 also in his statement against

the charged constable on finding 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 cha rge as completely proved due to

which the image of police has blurred.”

F The judgment of the Division Bench

17 The Division Bench of the High Court observed that quite apart from the

cross- examination, the examination- in-chief of Jodh Singh was not susceptible to

the inference that the respondent was even remotely connected with the murder.

The imputation against the respondent was that he had collaborated with Iqbal and

Lokesh, and murdered Bhanwar Singh by running him over with a jeep. On this

PART F

20

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, t he 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 form al 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

articles/vehicle was made at the instance of the accused. There were three accused

in the trial, and hence according to the High Court, it was not possible to link 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:

PART F

21

“16. Procedure for imposing major penal 16. Procedure

for imposing major penalties.–

…

(6)(a). Where the Government Servant has pleaded not guilty

to the charges, at the commencement of the enquiry, the

Inquiring Authority shall ask the Presenting Officer appearing

on behalf of the Disciplinary Authority to submit the list of

witnesses and documents within 10 days, who shall also

simultaneously send a copy to the Government Servant.

Delinquent Officer, within ten days of the receipt of the list of

prosecution witness and documents, shall submit the list of

documents required by him for his defence. The Inquiring

Authority shall then summon the documents of both sides and

ask the parties to admit or deny them. It shall then summon

such evidence as is necessary, giving opportunity to the

presenting officer for examination- in-chief and also to the

Government Servant or his assisting officer, whosever may

be present, for cross -examination. The Presenting Officer

shall be entitled to re- examine the witness on any point on

which they have been cross examined but not on any new

matter, without the leave of the Inquiring Authority, after the

close of the prosecution evidence the Government Servant

shall be called upon to submit the list of the witnesses within

10 days which he would like to produce in his defence. The

Inquiring Authority after considering the relevancy of the

witnesses and the documents shall summon only the relevant

witnesses and the documents and record the evidence

thereof, while giving opportunity of Examination- in-Chief and

cross- examination/re- examination to the parties and then

close the evidence. The Inquiring Authority shall consider the

relevancy of the witnesses and the documents called for by

both the parties and in case of his refusal to summon any

witnesses or documents, he shall record the reason in writing.

The Inquiring Authority may also put such questions to the

witnesses of the parties, as it thinks fit, in the interest of

justice. An opportunity for hearing the arguments shall be

given to the parties.

Note:- If the 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.

PART F

22

(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 may allow, for the discovery

or production of any documents which are in the possession

of Government but not mentioned in the list referred to in sub-

rule (6)(a).

Note:- The Government Servant shall indicate the relevance

of the documents required by him to be discovered or

produced by the Government.

The Inquiring Authority shall, on receipt of the notice for the

discovery or production of documents, forward the same or

copies thereof to the authority in whose custody or

possession the documents are kept, with as requisition for the

production of the document by such date as may be specified

in such requisition:

Provided that the Enquiring Authority may, for reasons to be

recorded by it in writing, refuse to requisite such of the

documents as are in its opinion, not relevant to the case.

On receipt of the requisition, every authority having the

custody or possession of the requisitioned documents shall

produce the same before the Inquiry Authority:

Provided that if the authority having the custody or

possession of the requisitioned documents is satisfied for

reasons to be recorded by it in writing that the production of

all or, any of such documents would be against the public

interest or security of the State, it shall inform the Inquiring

Authority accordingly and the Inquiring Authority shall, on

being so informed, communicate the information to the

PART F

23

Government Servant and withdraw the requisition made by it

for the production or discovery of such documents.

(6)(d). In case of joint departmental enquiry under rule 18 or

in the case of enquiry under rule 16 of these rules, the

Government Servant/s/fail/fails to appear without sufficient

cause on the date fixed for the hearing of which he had the

notice, the Inquiry Authority, may proceed with the enquiry in

the absence of such Government Servant(s).

(6)(A). If it shall appear necessary before the close of the

case on behalf of the Disciplinary Authority, the Inquiring

Authority may, in its discretion, allow the Presenting Officer to

produce evidence not including in the list given to the

Government Servant or may itself call for new evidence or re-

call 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 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

specified in clauses (iv) to (vii) of Rule 14 should be imposed

on the Government Servant, that authority shall forward the

records of the inquiry to such disciplinary authority as is

competent to impose the last mentioned penalties.

PART F

24

(6)(B)(b ). The Disciplinary Authority to which the records are

so forwarded may act on the evidence on the record or may,

if it is of the opinion that further examination of any witnesses

is necessary in the interest of justice, recall the witnesses and

examine, cross-examine and re-examine the witness and

may impose on the Government Servant such penalty as it

may deem fit in accordance with rules.

(7). At the conclusion of the inquiry, the Inquiring Authority

shall prepare a report of the inquiry, recording its findings on

each of the charges together with reasons therefore. If in the

opinion of such authority the proceedings of the inquiry

establish charges different from those originally framed it may

record findings on such charges provided that findings on

such charges shall not be recorded unless the Government

Servant has admitted the facts constituting them or has had

an opportunity of defending himself against them.

(8). The record of the inquiry shall include: -

(i) the charges framed against the Government Servant and

the statement of allegations furnished to him under sub-rule

(2);

(ii) his written statement of defence, if any;

(iii) the oral evidence taken in the course of the enquiry;

(iv) the documentary evidence considered in the course of the

enquiry;

(v) the orders, if any, made by the Disciplinary Authority and

the Inquiring Authority in regard to inquiry; and

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

reasons therefore.

(9). The Disciplinary Authority shall, if it is not the Inquiring

Authority, consider the record of the inquiry and record its

findings on each charge.

The Disciplinary Authority may while considering the report of

the Enquiring Authority for just and sufficient reasons to be

recorded in writing remand the case for further/de- novo

enquiry, in case it has reason to believe that the enquiry

already conducted has been laconic in some respect or the

other.”

PART G

25

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 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 wit h Iqbal, which indicates a prior familiarity

between them ; (b) the respondent’s father died from a snake bite; and (c) Jodh

Singh met the respondent on the date of the incident at a spot which was 300 feet

PART G

26

away from where he saw Iqbal murdering Bhanwar Singh. This is based on the

following evidence:

“Two-three years ago Heem Singh came with an engine

crane from Sardargarh, which I repaired at Ram Singh's well

after visiting Ravo Ki Gudli, at that time one … Iqbal Khan

stating to be of Sardargarh, he was also there. During fitting

of crane I talked with him therefore, I know him.”

“I also know Bhanwar Singh of Ravo ki Gudli, who was uncle

of Heem Singh. On biting by snake he did witch work and

doing service in PWD at Nathdwara. 2 years prior to death of

Bhanwar Singh; snake bit Nathu Singh the father of Heem

Singh. I don't know whether Bhanwar Singh done any witch

work on Nathu Singh or not. Nathu Singh was kept admitted

in Udaipur for 15- 20 days 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

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.”

22 Evidence of PW2 Devi Singh – PW2 resiled from his statement in his

entirety, and stated that he knows nothing about the death of Bhanwar Singh and

admitted to whatever the police told him.

23 Evidence of PW3 Shankar Singh – PW3’s evidence establishes that he met

the respondent on the date of the incident at the spot where his tractor was parked,

along with another person whom he has not identified. Moreover, when he was

coming back after 30/45 minutes, he saw the dead body of Bhanwar Singh.

However, he states that he is not aware of a prior enmity between the respondent

PART G

27

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

3/4

th

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 l odged 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 told him to inform Bhanwar Singh that he would

kill him by for causing the death of his father; (d) Bhanwar Singh had lodged a

complaint with the police in regard to the death threat issued by the respondent to

PART G

28

him; and (e) when he came to know of Bhanwar Singh’s death, he immediately

suspected the respondent. This is based on the following evidence:

“Bhanwar Singh is uncle of Heem Singh. There is land

dispute between them from last 5- 7 years. In this respect

Bhanwar Singh also lodged a report at police station

Khamnaur. I do not remember exact time. 2- 3 years ago

snake also bite Nathu Singh the father of Heem Singh. On

that Bhanwar Singh also performed witch work on him. Nathu

Singh was also taken to hospital but he could not survive,

died after 15- 20 days. Nathu Singh died and next day I went

to meet him, after meeting returning back to my house at that

time outside the house of Nathu Singh, Nathu Singh's son

Heem Singh was sitting on front tyre of his tractor, who

stopped me and said that you should say to Bhanwar Singh

that I will kill him by hitting either with tractor or motorcycle. I

said Heem Singh that what he did, why are you asking to kill

him. On this Heem Singh said to me that he is behind my

house therefore, ..... illegible... after death of Nathu Sing on

the same day Bhanwar Singh told me that Heem Singh has

thrown me out of his house that you must not come in funeral

of my father therefore, Bhanwar Singh did not come in funeral

of Nathu Singh. On stating to Bhanwar Singh what Heem

Singh said to me, Bhanwar Singh said that Heem Singh

cannot kill me despite that I have lodged report in police. On

the day when I heard about death of Bhanwar Singh in village

at around 6- 7 hours, at that time I guessed that Bhanwar

Singh was killed by Heem Singh or through him. Today also

saying same thing.”

“2. It is correct that doubt of murder of Bhanwar Singh by

Heem Singh to me was due to land dispute between them

and threat to kill Bhanwar Singh by Heem Singh through me

and still have doubt.”

25 Evidence of Bhanwar Singh (SHO, Devgarh) – His evidence shows that the

respondent did initially take leave for the death of his brother in-law. This is based

on the following evidence:

“Shri Heem Singh No. 642 has filed an application requesting

for one casual leave and one G.H. due to death of his

PART G

29

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 offence under Section 302 of

the IPC 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

persons place of incident is pointed out.”

“Question - 2. You have done investigation till 2 months under

Sections 304A and 279 IPC, whether during said period

nobody told you that Bhanwar Singh was murdered?

Answer - During the period of one month witness Babudas on

11.09.02 told about presence of 2-3 persons at the spot of

incident.

Question - 3. Whether Babudas is an eye witness of the

incident or not?

Answer - No.

Question - 4. Whether during this period of one month from

15.08.02 you have recorded statement of any eye witness

that Bhanwar Singh is murdered?

Answer - No.

Question - 5. Under whose statement you altered the offence

under Section 302 IPC?

PART G

30

Answer - Offence is altered due to the statement of Jodh

Singh.

Question - 6. Do you know that Jodh Singh has not stated

before the Court that I have told police about murder. Rather

he said that they took statement by beating me and the same

is also recorded in the statement of Court?

Answer - It also came in the statement of Jodh Singh that

about murder he told to Pratap Singh and police and in

argument witness Jodh Singh has stated that police

threatened him beat him then took statement which is wrong.”

27 Evidence of Sudhir Joshi (RPS Deputy Superintendent, Nathdwara) – He

has stated in his evidence that the police’s image has become tarnished due to the

suspicions raised on Heem Singh’s involvement in the murder of Bhanwar Singh.

This is based on the following evidence:

“On preliminary investigation conducted by me absence of

constable No. 642 Shri Heern 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

PART G

31

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. Quite independent of this is the issue whether the connection of

the respondent with the circumstances leading to the death of Bhanwar Singh

affected his ability to continue in the State police force without affecting its integrity

and reputation. The latter aspect is the one on which the judgment of the Division

Bench is found to be deficient in its reasoning.

PART H

32

H On a ‘preponderance of probabilities’

29 In M. Siddiq v. Suresh Das

6

, a C onstitution Bench of this Court has

described the standard of ‘preponderance of probabilities’ in the following terms:

“720. The court in a civil trial applies a standard of proof

governed by a preponderance of probabilities. This standard

is also described sometimes as a balance of probability or the

preponderance of the evidence. Phipson on Evidence

formulates the standard succinctly: If therefore, the evidence

is such that the court can say “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 Rolls then was) defined

the doctrine of the balance or preponderance of probabilities

in the following terms: (All ER p. 373 H)

“(1) … It need not reach certainty, but it must carry a high

degree of probability. Proof beyond reasonable doubt does

not mean proof beyond the shadow of doubt. The law would

fail to protect the community if it admitted fanciful possibilities

to deflect the course of justice. If the evidence is so strong

against a man as to leave only a remote possibility in his

favour which can be dismissed with the sentence, “of course

it is possible, but not in the least probable” the case is proved

beyond reasonable doubt, but nothing short of that will

suffice.” (emphasis supplied)

721. The law recognises that within the standard of

preponderance of probabilities, there could be different

degrees of probability. This was succinctly summarised by

Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35

(CA)], where he formulated the principle thus: (p. 37)

“… So also in civil cases, the case must be proved by a

preponderance of probability, but there may be degrees of

probability within that standard. The degree depends on the

subject-matter.” (emphasis supplied)

6

(2020) 1 SCC 1

PART I

33

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 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

7

, 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 relevant piece of evidence

has been taken into consideration and irrelevant facts

have been excluded therefrom. Inference on facts must

be based on evidence which meet the requirements of

legal principles. The Tribunal was, thus, entitled to arrive at

its own conclusion on the premise that the evidence adduced

by the Department, even if it is taken on its face value to be

correct in its entirety, meet the requirements of burden of

proof, namely, preponderance of probability. If on such

evidence, the test of the doctrine of proportionality has not

been satisfied, the Tribunal was within its domain to interfere.

7

(2008) 3 SCC 484

PART I

34

We must place on record that the doctrine of

unreasonableness is giving 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. Employees Assn.

[(2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68] )”

(emphasis supplied)

31 The learned Single Judge placed reliance on judgments which enunciate that

the mere acquittal in the criminal case did not absolve the respondent from the

charge of misconduct in departmental proceedings. The Single Judge held that:

(i) The departmental enquiry was conducted in accordance with law;

(ii) The statement of Jodh Singh in the course of his examination- in-chief

as an eye- witness sufficiently proved the allegations; and

(iii) Since the charge of murder stood proved, all the other charges stood

established.

32 The Division Bench found fault with the Single Judge for not having seen the

evidence of Jodh Singh in its entirety. A two-Judge Bench of this Court in P. John

Chandy and Co. (P) Ltd. v. John P. Thomas

8

, 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.”

8

(2002) 5 SCC 90

PART I

35

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 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 jurisdiction to interfere when the findings in the

enquiry are based on no evidence or when they suffer from perversity. A failure to

consider vital evidence is an incident of what the law regards as a perverse

PART J

36

determination of fact. Proportionality is an entrenched feature of our jurisprudence.

Service jurisprudence has recognized it for long years in allowing for the authority of

the court to interfere when the finding or the penalty are disproportionate to the

weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail

between the banks of these two shores which have been termed as the two ends of

the spectrum. Judges do not rest with a mere recitation of the hands-off mantra

when they exercise judicial review. To determine whether the finding in a disciplinary

enquiry is based on some evidence an initial or threshold level of scrutiny is

undertaken. That is to satisfy the conscience of the court that there is some

evidence to support the charge of misconduct and to guard against perversity. But

this does not allow the court to re- appreciate evidentiary findings in a disciplinary

enquiry or 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 which the judges’

craft is in vain.

J The effect of an acquittal

34 In the present case, we have an acquittal in a criminal trial on a charge of

murder. The judgment of the Sessions Court is a reflection of the vagaries of the

administration of criminal justice. The judgment contains a litany of hostile

witnesses, and of the star witness resiling from his statements. Our precedents

PART J

37

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

9

,

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

10

, 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

9

(2009) 9 SCC 24

10

(2013) 1 SCC 598

PART J

38

by judicial pronouncements. It is difficult to define

precisely what is meant by the expression “honourably

acquitted”. When the accused is acquitted after full

consideration of prosecution evidence and that the

prosecution had miserably failed to prove the charges

levelled against the accused, it can possibly be said that

the accused was honourably acquitted.

25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was

held that even in the case of acquittal, departmental

proceedings may follow where the acquittal is other than

honourable. In State of Assam v. Raghava Rajgopalachari

[1972 SLR 44 (SC)] this Court quoted with approval the views

expressed by Lord Williams, J. in Robert Stuart Wauchope v.

Emperor [ILR (1934) 61 Cal 168] which is as follows:

(Raghava case [1972 SLR 44 (SC)] , SLR p. 47, para 8)

“8. … ‘The expression “honourably acquitted” is one which is

unknown to courts of justice. Apparently it is a form of order

used in courts martial and other extrajudicial tribunals. We

said in our judgment that we accepted the explanation given

by the appellant, believed it to be true and considered that it

ought to have been accepted by the government authorities

and by the Magistrate. Further, we decided that the appellant

had not misappropriated the monies referred to in the charge.

It is thus clear that the effect of 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

PART J

39

reasons or the prosecution giving up other witnesses

since few of the other witnesses turned hostile, etc. In the

case on hand the prosecution did not take steps to examine

many of the crucial witnesses on the ground that the

complainant and his wife turned hostile. The court, therefore,

acquitted the accused giving the benefit of doubt. We are not

prepared to say that in the instant case, the respondent was

honourably acquitted by the criminal court and even if it is so,

he is not entitled to claim reinstatement since the Tamil Nadu

Service Rules do not provide so.” (emphasis added)

35 In the present case, the respondent was acquitted of the charge of murder.

The circumstances in which the trial led to an acquittal have been elucidated in

detail above. The verdict of the criminal trial did not conclude the disciplinary

enquiry. The disciplinary enquiry was not governed by proof beyond reasonable

doubt or by the rules of evidence which governed the criminal trial. True, even on

the more relaxed standard which governs a disciplinary enquiry, evidence of the

involvement of the respondent in a conspiracy involving the death of Bhanwar Singh

would be difficult to prove. But there are, as we have seen earlier, circumstances

emerging from the record of the disciplinary proceedings which bring legitimacy to

the contention of the State that to reinstate such an employee back in service will

erode the credibility of and public confidence in the image of the police force.

PART K

40

K Conclusion

36 Therefore, the direction of the Division Bench for reinstatement is set aside. In

exercise of the jurisdiction under Article 142 of the Constitution, we direct that the

cessation from service will notionally take place on the respondent completing

minimum qualifying service. The direction of the High Court that the respondent shall

not be entitled to back wages is upheld. The retiral dues of the respondent shall be

computed and released on this basis within a period of three months.

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

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

…….………….…………………...........................J.

[Dr. Dhananjaya Y Chandrachud]

…….………….…………………...........................J.

[Indira Banerjee]

New Delhi;

October 29, 2020.