REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5848 OF 2021

(ARISING OUT OF SLP (CIVIL) NO. 24095 OF 2019)

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

DALBIR SINGH .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. Leave granted.

2.The order dated 11.4.2019 passed by the Division Bench of the

High Court of Delhi at New Delhi is the subject matter of challenge

in the present appeal whereby the order of dismissal passed by the

Competent Authority on 24.5.2014, appellate order dated

9.10.2014, and revisional order dated 13.2.2015 were set aside.

The respondent

1

was hence directed to be reinstated and also was

found entitled to arrears of pay from the date of dismissal of

service till the date he actually joins the duty.

3.The writ petitioner was a General Duty Constable in the Central

Reserve Police Force (CRPF). An FIR No. 16/1993 was lodged

1 Hereinafter referred to as the ‘writ petitioner’

1

against the writ petitioner for an offence under Section 302, 307 of

the Indian Penal Code, 1860

2

and Section 27 of the Arms Act, 1959

when the writ petitioner was accused to have fired from his service

revolver on Head Constable Shri Harish Chander and Deputy

Commandant Shri Hari Singh resulting in the death of Shri Harish

Chander and injuries to Shri Hari Singh. The writ petitioner was

convicted by the learned trial court on 11.3.1996 and sentenced to

life imprisonment. However, in appeal, the High Court of Punjab

and Haryana acquitted him of the charges framed against him by

giving benefit of doubt for the reason that 20 cartridges were fired

but only 7 empties were recovered whereas none of the bullets

have been recovered. In view of the said finding, the High Court

doubted the prosecution version as the Investigating Agency had

failed to collect the evidence. Criminal Appeal No. 117 of 2006

filed by the State was dismissed by this Court relying upon the

aforesaid finding of the High Court.

4.The writ petitioner was initially served with a chargesheet on

27.6.1993. Article-I from the Statement of Article of charges reads

thus:

“

ARTICLE-I

That the said No.880957136 Ct. Dalbir Singh of D/36 BN

CRPF while functioning as CT(GD) at BN HQ Fatehbad on

11.04.1993 has committed an act of misconduct in his

capacity as member of the force U/s 11(1) of CRPF Act, 1949

in that he has committed misconduct and disobedience of

lawful orders and refused to perform fatigue duty between

0900 hrs. to 1000 hrs.”

2 For short, the ‘IPC’

2

5.In the statement of imputation of misconduct or misbehaviour in

support of the above said Article of charge, it was stated that the

writ petitioner returned to the Unit Headquarter after 60 days of

earned leave on 10.4.1993 and was detailed for fatigue duty.

Instead of performing such fatigue duty, the writ petitioner sat at

the tailor shop. BHM Harish Chandra asked for non-compliance of

the orders, the writ petitioner however arrogantly misbehaved with

the officers. It is admitted that the proceedings of the chargesheet

were not concluded.

6.The writ petitioner was dismissed from service on 21.12.1996 on

account of his conviction in the criminal trial in pursuance of the

FIR lodged. However, since he was granted benefit of doubt in

appeal by the High Court and was subsequently acquitted, the writ

petitioner was reinstated vide order dated 20.7.2012 by the Deputy

Inspector General of Police, CRPF, Patna. The following were the

directions issued in the order of reinstatement:

“(i) The punishment of dismissal from service awarded to

No. 880957136 CT/GD Dalbir Singh of 36BN, CRPF by

disciplinary authority i.e. Commandant 36 BN vide order No.

I-X-2/93-EC-II dated 21.12.1996 is hereby set aside.

(ii) The appellant No. 880957136 CT/GD Dalbir Singh of

36BN, CRPF is reinstated into service immediate effect (i.e.

from the date of reporting in 36BN).

(iii) Since the appellant i.e. Ex. CT/GD Dalbir Singh has been

acquitted by criminal court, he shall not be punished

departmentally on the same charge or similar charge upon

the evidence cited in the criminal case Rule 27 (ccc) of CRPF

Rules, 1955. If some other misconduct on other ground is

3

made out then it is upto disciplinary authority to decide

whether any Departmental Enquiry is called for or not under

Rule GOI decisions No. 5 below Rule 19 of CCS (CCA) 1965.”

7.The writ petitioner was served with another chargesheet on

27.8.2012. The said chargesheet was withdrawn when the writ

petition filed by the writ petitioner was pending before the High

Court of Delhi. Consequently, the Writ Petition (C) No. 6354 of

2012 was disposed of on 21.11.2012, giving liberty to the appellant

to charge sheet the writ petitioner. The relevant extract from the

order reads as thus:

“15. However, learned counsel for the respondents submits

that the issue pertaining to the departmental instructions

with reference to safe custody of arms and ammunition

issued to force personnel while on duty, which was not the

subject matter of a criminal trial can always be gone into at

a departmental inquiry. Learned Counsel submits that an

official arm and ammunitions issued to a force personnel if

found to be used in an incident resulting in the death of

force personnel would certainly require an accountability to

be given by the officer concerned who was issued the arm

and ammunitions.

16. The offending chargesheet which has been challenged

in the writ petition has been withdrawn by the respondents

and therefore the writ petition is disposed of as infructuous

observing that it would be permissible for the respondents

to issue a chargesheet but not in relation to the death of

Battalion Havaldar Major Harish Chander and the injuries

caused to Dy. Comdt. Hari Singh. The respondents would be

entitled to hold an inquiry with respect to the arm and

ammunitions issued to the writ petitioner on day of incident

and seek petitioner’s accountability in relation thereto.”

8.It is thereafter that another chargesheet was issued on 25.2.2013.

Article I of the said chargesheet reads thus:

4

“

ARTICLE 1

That during his posting at Amritsar Punjab No. 880957136

CT/GD Dalbir Singh of 36, BN, CRPF, on 11.04.1993 without

having the order from Competent Officer fired from his

service rifle (SLR Butt No. 417 Body No. 150410-59), issued

for his Govt. duties and hence misused the Government

weapon and ammunition and committed remissness of

duties. The abovesaid misconduct is a serious offence U/s

11(1) of CRPF Act read with Rule 27 of CRPF Rules.

Therefore, the constable while being the member of the

force has misused his service rifle and ammunition without

having the order of competent officer which is a serious

offence and misconduct and the same is also against the

discipline and management of the force and is also a

punishable offence.”

9.In the enquiry proceedings, the appellants had examined six

witnesses. The first departmental witness was Havaldar Dayamai

Banerjee (PW-1). He had deposed that on 11.4.1993 around 11 o’

clock, when he was doing camp maintenance work, he heard the

sound of firing coming from the Head Office. He reached the place

of firing which was 150 meters away from his place of work and

found some persons were holding the writ petitioner. There is

nothing substantial in the cross-examination conducted. He had

reached the place of firing after the incident but had deposed

about the time of incident of firing.

10.PW-2 Havaldar Bal Singh deposed that he heard the noise of about

15-20 fire shots at around 11 o’ clock on 11.4.1993. He reached

the place of occurrence and found Constable Dilip Mishra holding

the writ petitioner as the latter was trying to free himself. He

further deposed that people around the writ petitioner were saying

5

that the writ petitioner fired inside the camp by his personal

weapon. Nothing material has come out in the cross-examination.

He also however reached the place of firing after the incident but

both the above witnesses have deposed regarding of timing of

firing i.e., around 11 o’ clock.

11.PW-3 Havaldar Hetlal Deepankar was deployed for quarter guard

duty from 10-12 o’ clock on 11.4.1993. Around 11 o’ clock, he

heard the sound of gunfire. The firing stopped after 15-20 minutes.

The writ petitioner was immobilized and was brought to the quarter

guard. In the cross-examination, he stated that the firing took

place at about 11:45 and that the distance between the quarter

guard and the Head Office was about 70-80 yards.

12.PW-4 Havaldar J.N. Tripathi was working in the mess of the

Headquarters, which was about 50 meters away from the place of

firing. He also saw some persons immobilizing the writ petitioner.

In the cross-examination, he stated that the firing was done by the

writ petitioner near the Head Office. The location of firing may be

10 meters away from the Head Office.

13.PW-5 Brij Kishore Singh deposed that at about 11:00 am, after he

handed over his charge to the writ petitioner, who was the runner

of Deputy Commandant Shri Hari Singh as he wanted to have his

food. He heard the sound of firing of about 15-20 bullets

continuously while he was eating his food. After the firing went off,

he ran towards the control room and saw 4-5 people were holding

6

the writ petitioner and Constable Dilip Mishra was also one of them.

3-4 soldiers had taken the Self-Loading Rifle (S.L.R.) of the writ

petitioner in their possession. He also stated that people were

saying that the writ petitioner had fired from his personal weapon.

He further deposed that the writ petitioner fired with his weapon

without any meaningful purpose inside the camp.

14.The most important witness is PW-6 Constable D.K. Mishra. He was

performing the duty of runner on 11.4.1993. He heard firing when

he had gone to get the documents signed by the officer in the

Head Office. He saw from lope hole that the writ petitioner was in

a kneeling position and was firing. He caught hold of the writ

petitioner from behind when he was changing the magazine. He

was then handed over to guard commander and three sentries of

quarter guard. In the cross-examination, he deposed that he

caught the writ petitioner alone and later the guard commander

and three sepoys from quarter guard came for help.

15.The Commandant, punishing authority, returned a finding

considering the evidence led by the Department that the writ

petitioner has misused his service weapon and is thus not entitled

to be retained in the disciplinary force. Such order was affirmed by

the appellate and the revisional authority.

16.The High Court in the writ petition filed by the writ petitioner

examined the question as to whether service rifle was issued on

11.4.1993. The High Court found that on 27.6.1993, when the first

7

chargesheet was issued, the writ petitioner was not on duty as he

was to perform fatigue duty but he sat in a tailor shop instead. The

Court found that this contradicts with the charges mentioned in the

chargesheet dated 25.2.2013 that while on duty, he misused the

‘government weapon’. The High Court returned the following

finding:

“14. While it is possible that notwithstanding the pendency

of a criminal case there could be disciplinary proceedings on

the same issue, in the present case it is seen that

Respondents are confused on facts. On the one hand, they

charge-sheeted the Petitioner on 27th June 1993 for not

performing his fatigue duty but instead sitting at a tailor’s

shop, while nearly two decades later on 25th February 2013

they have charged him with misusing the service weapon

issued to him. This contradiction in the stand of the

Respondents is fatal to the disciplinary proceedings. The

charge that he misused the weapon issued to him falls flat if

he was in fact not even present at the place of duty. This

was a case based on no evidence. The Respondents had to

prove that the weapon which was issued to the Petitioner

was misused by him. This it has failed to do by credible

evidence.”

17.We find that the High Court has exceeded its jurisdiction while

exercising the power of judicial review over the orders passed in

the disciplinary proceedings which were conducted while adhering

to the principles of natural justice.

18.The High Court failed to notice the fact that in the charge sheet

issued on 27.6.1993, the allegation was that the writ petitioner

failed to perform his fatigue duty from 9 to 10 am and was

disobedient to the lawful orders issued to him. There was no

allegation of use of a fire arm leading to death of Shri Harish

8

Chander and injuries to Shri Hari Singh.

19.The writ petitioner completed his fatigue duty at 10 am and then

reported for duty at the Headquarters. In the later Charge Sheet

dated 25.2.2013, the departmental witnesses have uniformly

deposed that the noise of firing of 15-20 gun shots was heard

around 11 am on 11.4.1993. In fact, PW-6 Constable D.K. Mishra is

the one who immobilized the writ petitioner when he was in the

process of loading another magazine in the self-loading rifle. Still

further, PW-5 Brij Kishore Singh has deposed that 3-4 soldiers had

taken the self-loaded rifle of the writ petitioner. Such self-loaded

rifle is the one which was issued to the writ petitioner.

20.The statement of some of the departmental witnesses was that

they heard that the writ petitioner used his personal weapon but

such part of the statements is hearsay evidence. It was open to

the writ petitioner to lead evidence that he was not using the

official weapon but a personal weapon to rebut the stand of the

Department.

21.A three-Judge Bench of this Court in State of Haryana & Anr. v.

Rattan Singh

3

was dealing with the issue of non-examination of

passengers when the allegation against the conductor was non-

issuance of the tickets. This Court held that in a domestic enquiry,

strict and sophisticated rules of evidence under the Indian

Evidence Act may not apply and that all materials which are

3 (1977) 2 SCC 491

9

logically probative for a prudent mind are permissible. There is no

allergy to hearsay evidence provided it has reasonable nexus and

credibility. This Court held as under:

“4. It is well settled that in a domestic enquiry the strict and

sophisticated rules of evidence under the Indian Evidence

Act may not apply. All materials which are logically probative

for a prudent mind are permissible. There is no allergy to

hearsay evidence provided it has reasonable nexus and

credibility. It is true that departmental authorities and

Administrative Tribunals must be careful in evaluating such

material and should not glibly swallow what is strictly

speaking not relevant under the Indian Evidence Act. For this

proposition it is not necessary to cite decisions nor text

books, although we have been taken through case-law and

other authorities by counsel on both sides. The essence of a

judicial approach is objectivity, exclusion of extraneous

materials or considerations and observance of rules of

natural justice. Of course, fairplay is the basis and if

perversity or arbitrariness, bias or surrender of

independence of judgment vitiate the conclusions reached,

such finding, even though of a domestic tribunal, cannot be

held good. However, the courts below misdirected

themselves, perhaps, in insisting that passengers who had

come in and gone out should be chased and brought before

the tribunal before a valid finding could be recorded. The

‘residuum’ rule to which counsel for the respondent referred,

based upon certain passages from American Jurisprudence

does not go to that extent nor does the passage from

Halsbury insist on such rigid requirement. The simple point

is, was there some evidence or was there no evidence — not

in the sense of the technical rules governing regular court

proceedings but in a fair commonsense way as men of

understanding and worldly wisdom will accept. Viewed in

this way, sufficiency of evidence in proof of the finding by a

domestic tribunal is beyond scrutiny. Absence of any

evidence in support of a finding is certainly available for the

court to look into because it amounts to an error of law

apparent on the record. ………..”

22.This Court in Union of India & Ors. v. P. Gunasekaran

4

had laid

down the broad parameters for the exercise of jurisdiction of

4 (2015) 2 SCC 610

10

judicial review. The Court held as under:

“12.Despite the well-settled position, it is painfully

disturbing to note that the High Court has acted as an

appellate authority in the disciplinary proceedings,

reappreciating even the evidence before the enquiry officer.

The finding on Charge I was accepted by the disciplinary

authority and was also endorsed by the Central

Administrative Tribunal. In disciplinary proceedings, the High

Court is not and cannot act as a second court of first appeal.

The High Court, in exercise of its powers under Articles

226/227 of the Constitution of India, shall not venture into

reappreciation of the evidence. The High Court can only see

whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed

in that behalf;

(c) there is violation of the principles of natural justice in

conducting the proceedings;

(d) the authorities have disabled themselves from reaching a

fair conclusion by some considerations extraneous to the

evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced

by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary

and capricious that no reasonable person could ever have

arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit

the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted

inadmissible evidence which influenced the finding;

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

13.Under Articles 226/227 of the Constitution of India, the

High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the

same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

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

findings can be based.

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

be;

(vii) go into the proportionality of punishment unless it

shocks its conscience.”

11

23.In another Judgment reported as B.C Chaturvedi v. Union of

India & Ors.

5

, it was held that the power of judicial review is

meant to ensure that the individual receives fair treatment and not

to ensure that the conclusion which the authority reaches is

necessarily correct in the eye of the court. The Judicial review is

not an appeal from a decision but a review of the manner in which

the decision is made. The Court is to examine as to whether the

inquiry was held by a competent officer or whether rules of natural

justice are complied with. This Court held as under:-

“12.Judicial review is not an appeal from a decision but a

review of the manner in which the decision is made. Power

of judicial review is meant to ensure that the individual

receives fair treatment and not to ensure that the conclusion

which the authority reaches is necessarily correct in the eye

of the court. When an inquiry is conducted on charges of

misconduct by a public servant, the Court/Tribunal is

concerned to determine whether the inquiry was held by a

competent officer or whether rules of natural justice are

complied with. Whether the findings or conclusions are

based on some evidence, the authority entrusted with the

power to hold inquiry has jurisdiction, power and authority to

reach a finding of fact or conclusion. But that finding must

be based on some evidence. Neither the technical rules of

Evidence Act nor of proof of fact or evidence as defined

therein, apply to disciplinary proceeding. When the authority

accepts that evidence and conclusion receives support

therefrom, the disciplinary authority is entitled to hold that

the delinquent officer is guilty of the charge. The

Court/Tribunal in its power of judicial review does not act as

appellate authority to reappreciate the evidence and to

arrive at its own independent findings on the evidence. The

Court/Tribunal may interfere where the authority held the

proceedings against the delinquent officer in a manner

inconsistent with the rules of natural justice or in violation of

statutory rules prescribing the mode of inquiry or where the

conclusion or finding reached by the disciplinary authority is

based on no evidence. If the conclusion or finding be such as

5 (1995) 6 SCC 749

12

no reasonable person would have ever reached, the

Court/Tribunal may interfere with the conclusion or the

finding, and mould the relief so as to make it appropriate to

the facts of each case.

13.The disciplinary authority is the sole judge of facts.

Where appeal is presented, the appellate authority has

coextensive power to reappreciate the evidence or the

nature of punishment. In a disciplinary inquiry, the strict

proof of legal evidence and findings on that evidence are not

relevant. Adequacy of evidence or reliability of evidence

cannot be permitted to be canvassed before the

Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR

718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p.

728 that if the conclusion, upon consideration of the

evidence reached by the disciplinary authority, is perverse

or suffers from patent error on the face of the record or

based on no evidence at all, a writ of certiorari could be

issued.”

24.This Court in Management of Tamil Nadu State Transport

Corporation (Coimbatore) Limited v. M. Chandrasekaran

6

held that in exercise of power of judicial review, the Labour

Commissioner exceeded his jurisdiction in reappreciating the

evidence adduced before the enquiry officer and in substituting his

own judgment to that of the disciplinary authority. It was not a case

of no legal evidence. The question as to decision of the disciplinary

authority of dismissing the respondent is just and proper could be

assailed by the respondent in appropriate proceedings. Considering

the fact that there was adequate material produced in the

departmental enquiry evidencing that fatal accident was caused by

the respondent while driving the vehicle on duty, the burden to

prove that the accident happened due to some other cause than

his own negligence was on the respondent. The doctrine of res ipsa

6 (2016) 16 SCC 16

13

loquitur squarely applies to the fact situation. The Court held as

under:

“11. The respondent on the other hand contends that the

Commissioner has applied the well-settled legal position that

there can be no presumption of misconduct by the

employees. That, charge must be proved by the Department

during the inquiry. Non-examination of the material

witnesses such as eyewitnesses present on the spot,

conductor and passengers, travelling on the same bus was

fatal. For, it entails in not substantiating the charges against

the respondent and failure to discharge the initial onus

resting on the Department to prove the charge as framed.

According to the respondent, no fault can be found with the

tangible reasons recorded by the Commissioner as noticed

by the Single Judge (reproduced above); and resultantly, the

conclusion of the Commissioner of not according approval to

the order of dismissal is just and proper. It is submitted that

the Single Judge was justified in allowing the writ petition

preferred by the respondent and issuing direction to the

appellant to reinstate him with back wages and continuity of

service and all attendant benefits accrued to him.”

25.This Court in Ajit Kumar Nag v. General Manager (PJ), Indian

Oil Corpn. Ltd., Haldia & Ors.

7

held that the degree of proof

which is necessary to order a conviction is different from the

degree of proof necessary to record the commission of delinquency.

In criminal law, burden of proof is on the prosecution and unless

the prosecution is able to prove the guilt of the accused “beyond

reasonable doubt”, he cannot be convicted by a court of law. In a

departmental enquiry, on the other hand, penalty can be imposed

on the delinquent officer on a finding recorded on the basis of

“preponderance of probability”. It was held as under:

“11.As far as acquittal of the appellant by a criminal court

is concerned, in our opinion, the said order does not preclude

the Corporation from taking an action if it is otherwise

permissible. In our judgment, the law is fairly well settled.

7 (2005) 7 SCC 764

14

Acquittal by a criminal court would not debar an employer

from exercising power in accordance with the Rules and

Regulations in force. The two proceedings, criminal and

departmental, are entirely different. They operate in different

fields and have different objectives. Whereas the object of

criminal trial is to inflict appropriate punishment on the

offender, the purpose of enquiry proceedings is to deal with

the delinquent departmentally and to impose penalty in

accordance with the service rules. In a criminal trial,

incriminating statement made by the accused in certain

circumstances or before certain officers is totally

inadmissible in evidence. Such strict rules of evidence and

procedure would not apply to departmental proceedings. The

degree of proof which is necessary to order a conviction is

different from the degree of proof necessary to record the

commission of delinquency. The rule relating to appreciation

of evidence in the two proceedings is also not similar. In

criminal law, burden of proof is on the prosecution and

unless the prosecution is able to prove the guilt of the

accused “beyond reasonable doubt”, he cannot be convicted

by a court of law. In a departmental enquiry, on the other

hand, penalty can be imposed on the delinquent officer on a

finding recorded on the basis of “preponderance of

probability”. Acquittal of the appellant by a Judicial

Magistrate, therefore, does not ipso facto absolve him from

the liability under the disciplinary jurisdiction of the

Corporation. We are, therefore, unable to uphold the

contention of the appellant that since he was acquitted by a

criminal court, the impugned order dismissing him from

service deserves to be quashed and set aside.”

(Emphasis Supplied)

26.This Court in Noida Entrepreneurs Association v. NOIDA &

Ors.

8

held that the criminal prosecution is launched for an offence

for violation of a duty, the offender owes to the society or for

breach of which law has provided that the offender shall make

satisfaction to the public, whereas, the departmental inquiry is to

maintain discipline in the service and efficiency of public service. It

was held as under:

8 (2007) 10 SCC 385

15

“11. A bare perusal of the order which has been quoted in

its totality goes to show that the same is not based on any

rational foundation. The conceptual difference between a

departmental inquiry and criminal proceedings has not been

kept in view. Even orders passed by the executive have to be

tested on the touchstone of reasonableness. [See Tata

Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat

Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130] .] The

conceptual difference between departmental proceedings

and criminal proceedings have been highlighted by this

Court in several cases. Reference may be made to Kendriya

Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004

SCC (L&S) 1011] , Hindustan Petroleum Corpn. Ltd. v.

Sarvesh Berry [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605]

and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC

366 : 2006 SCC (L&S) 1341] .

“8. … The purpose of departmental inquiry and of

prosecution are two different and distinct aspects.

The criminal prosecution is launched for an offense

for violation of a duty, the offender owes to the

society or for breach of which law has provided

that the offender shall make satisfaction to the

public. So crime is an act of commission in

violation of law or of omission of public duty. The

departmental inquiry is to maintain discipline in

the service and efficiency of public service. It

would, therefore, be expedient that the disciplinary

proceedings are conducted and completed as

expeditiously as possible. It is not, therefore,

desirable to lay down any guidelines as inflexible

rules in which the departmental proceedings may

or may not be stayed pending trial in the criminal

cases against the delinquent officer. Each case

requires to be considered in the backdrop of its

own facts and circumstances. There would be no

bar to proceed simultaneously with departmental

inquiry and trial of a criminal case unless the

charge in the criminal trial is of grave nature

involving complicated questions of fact and law.

Offense generally implies infringement of public

duty, as distinguished from mere private rights

punishable under criminal law. When the trial for a

criminal offense is conducted it should be in

accordance with proof of the offense as per the

evidence defined under the provisions of the Indian

Evidence Act, 1872 [in short ‘the Evidence Act’].

The converse is the case of departmental inquiry.

16

The inquiry in a departmental proceeding relates to

conduct or breach of duty of the delinquent officer

to punish him for his misconduct defined under the

relevant statutory rules or law. That the strict

standard of proof or applicability of the Evidence

Act stands excluded is a settled legal position. …

Under these circumstances, what is required to be

seen is whether the departmental inquiry would

seriously prejudice the delinquent in his defense at

the trial in a criminal case. It is always a question

of fact to be considered in each case depending on

its own facts and circumstances.”

27.This Court in Depot Manager, A.P. State Road Transport

Corporation v. Mohd. Yousuf Miya & Ors.

9

held that in the

disciplinary proceedings, the question is whether the respondent is

guilty of such conduct as would merit his removal from service or a

lesser punishment. It was held as under:

“7. …There is yet another reason. The approach and the

objective in the criminal proceedings and the disciplinary

proceedings is altogether distinct and different. In the

disciplinary proceedings, the question is whether the

respondent is guilty of such conduct as would merit his

removal from service or a lesser punishment, as the case

may be, whereas in the criminal proceedings the question is

whether the offences registered against him under the

Prevention of Corruption Act (and the Penal Code, 1860, if

any) are established and, if established, what sentence

should be imposed upon him. The standard of proof, the

mode of enquiry and the rules governing the enquiry and

trial in both the cases are entirely distinct and different.

Staying of disciplinary proceedings pending criminal

proceedings, to repeat, should not be a matter of course but

a considered decision. Even if stayed at one stage, the

decision may require reconsideration if the criminal case

gets unduly delayed.” (Emphasis Supplied)

28.Mr. Yadav, learned counsel for the writ petitioner has submitted

that during the pendency of the writ petition before the High Court,

9 (1997) 2 SCC 699

17

the appellants were given opportunity to produce the registers of

the entrustment of S.L.R. to the writ petitioner. But it was stated

that record was not available being an old record as the incident

was of 1993. The enquiry was initiated in 2013 after the acquittal

of the writ petitioner from the criminal trial. Therefore, in the

absence of the best evidence of registers, the oral evidence of use

of official weapon stands proven on the basis of oral testimony of

the departmental witnesses.

29.The burden of proof in the departmental proceedings is not of

beyond reasonable doubt as is the principle in the criminal trial but

probabilities of the misconduct. The delinquent such as the writ

petitioner could examine himself to rebut the allegations of

misconduct including use of personal weapon. In fact, the reliance

of the writ petitioner is upon a communication dated 1.5.2014

made to the Commandant through the inquiry officer. He has

stated that he has not fired on higher officers and that he was out

of camp at the alleged time of incident. Therefore, a false case has

been made against him. His further stand is that it was a terrorist

attack and terrorists have fired on the Camp. None of the

departmental witnesses have been even suggested about any

terrorist attack or that the writ petitioner was out of camp.

Constable D.K. Mishra had immobilized the writ petitioner whereas

all other witnesses have seen the writ petitioner being immobilized

and being removed to quarter guard. PW-5 Brij Kishore Singh

deposed that 3-4 soldiers had taken the Self-Loading Rifle (S.L.R.)

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of the writ petitioner in their possession. Therefore, the allegations

in the chargesheet dated 25.2.2013 that the writ petitioner has

fired from the official weapon is a reliable finding returned by the

Departmental Authorities on the basis of evidence placed before

them. It is not a case of no evidence, which alone would warrant

interference by the High Court in exercise of power of judicial

review. It is not the case of the writ petitioner that there was any

infraction of any rule or regulations or the violation of the

principles of natural justice. The best available evidence had been

produced by the appellants in the course of enquiry conducted

after long lapse of time.

30.Consequently, we find that the order passed by the High Court is

not sustainable. Hence, the same is set aside and the order of

punishment of dismissal passed on 21.12.1996 as affirmed in

appeal and revision stands restored. Accordingly, the appeal is

allowed.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

SEPTEMBER 21, 2021.

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