The State Of Rajasthan vs Phool Singh

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5930 OF 2022 (ARISING OUT OF SLP (C) NO.11195 OF 2021)

THE STATE OF RAJASTHAN & ORS. ... APPELLANTS

Versus

PHOOL SINGH ... RESPONDENT

J U D G M E N T

Sudhanshu Dhulia, J.

1. Leave granted. The State of Rajasthan is in appeal

before this Court against the order dated

09.09.2020, passed by a Division Bench of

Rajasthan High Court (Jaipur Bench). By the

impugned order the Division Bench has upheld the

order of the learned Single Judge which had allowed

the writ petition of the present respondent,

quashing his dismissal from service. Signature Not Verified 2. Respondent Phool Singh had entered Rajasthan Digitally signed by NEETU KHAJURIA Date: 2022.09.02

Police Service as a constable, in the year 1987. The 18:16:50 IST Reason:

1 | Page same year, while he was posted at the Police

Station Mania, District Dholpur (Rajasthan), he

allegedly committed a criminal offence, apart from

an act of gross indiscipline. On the fateful day of

15.10.1987, he was wandering around the town in

the evening, in company of one Lokman.

Respondent was off duty but in police uniform,

when he allegedly caught one Mahesh Kumar and

demanded Rs.100/- from him. On his refusal,

Mahesh Kumar was asked to show the papers of his

motorcycle and when he failed to show these

papers, Phool Singh took hold of this motorcycle,

and then tried to run away with it. Meanwhile, due

to the alarm raised by Mahesh Kumar a crowd also

gathers in support of Mahesh Kumar. At this point,

Phool Singh is alleged to have waved a gun

(“Pachpera”), towards the crowd but was

nevertheless chased by the crowd, till Phool Singh

succeeds in getting inside his house, which was

nearby. Once inside his house, he fires from his gun

2 | Page which injures the inmates of the house, i.e., his

family members, besides damaging the property.

All this results in lodging of an FIR (No. 146/1987)

against the respondent, at Police Station Mania,

under Sections 392, 307 IPC and Section 34 of

Police Act read with Section 3/25 of Arms Act. After

investigation in the case a chargesheet was filed

against Phool Singh and Lokman. Ultimately

charges were framed under Section 392 IPC and

Section 3/25 of the Arms Act by the Trial Court. The

Trial Court then convicts Phool Singh, under Section

392 IPC and Section 3/25 Arms Act and sentences

him for one-year rigorous imprisonment and fine for

each of the above two offences, with default

stipulations, vide order dated 31.03.1994. The co-

accused Lokman is acquitted. This order was

challenged by Phool Singh in appeal and the

learned Sessions Judge, Dholpur, allows the appeal,

and sets aside the order of the Trial Court, giving

“benefit of doubt” to the accused.

3 | Page

3. Meanwhile, a departmental proceeding had also

been initiated against the delinquent constable on

three charges, which are as follows:-

“CHARGE NO. l :- In the year 1987 when on 15.10.87 you, Shri Phool Singh Constable No.386 was deputed with Police Station Mania at that time while off duty as Guard time at around 3:00 PM dressed in police uniform you had consumed alcohol and under the influence of alcohol being highly intoxicated continued to roam around in Kasba Mania and snatched away licensed Pachpcra (rifle) of Shivram Kachhi.

CHARGE NO.2:- On 15.10.87, you in a drunken state dressed in uniform alongwith Lokman Gurjar went to Bedia Kasba Mohalla where being off duty and without any authority you demanded for documents pertaining to Rajdoot Motorcycle from Mahesh Kumar S/o Shiv Hare Brahmin R/o Patpara Dholpur and also indecently abused and demanded for a bribe of Rs.100/- and

4 | Page forcibly looted and took away Motorcycle bearing registration No.RJD 7722 from Mahesh Kumar and due to which a lot of people gathered and they chased behind you.

CHARGE NO.3:- On being chased by public you ran and reached your quarter in the compound of Police Station Mania and in a drunk state fired in your self- defence inside your house from the Pachpera snatched away by you from Shiv Ram but the gunshot hit the balcony in the chowk of the quarter and as a result broken pieces of balcony fell on your family members and due to which your family members got injured and the said incident led to the registration of FIR No.146 dated 15.10.87 against you u/s 392, 307/34 of Police Act & 3/25 of Arms Act thereafter investigation was conducted.” In the departmental enquiry fourteen prosecution

witnesses were examined. Some of these

witnesses supported the case of the prosecution,

others did not. Additionally, material exhibits were

5 | Page also examined such as, the first information report,

the memorandum of seizure of the motorcycle and

more importantly the Breath Alcohol Analysis Test

of respondent which was positive for alcohol

consumption. The delinquent constable had also

examined nine defence witnesses.

All the three charges were ultimately proved

against the respondent in the disciplinary

proceedings and he was dismissed from service,

vide order dated 18.12.1989. This order of the

disciplinary authority was taken in appeal by

respondent which was also dismissed by the

Appellate Authority on 23.08.1990. Then a review

was also filed, which was also dismissed on

03.06.1994. By the time the Reviewing Authority

had dismissed the review of the respondent (i.e., on

03.06.1994), the respondent who was also facing a

criminal trial was convicted by the Trial court, under

Section 392 IPC and under Section 3/25 of the Arms

Act, on 31.03.1994, as already referred above.

6 | Page Later, as we know, his conviction was set aside by

the Sessions Court.

4. Respondent Phool Singh after his acquittal moves

an application before the authorities for his

reinstatement. Since the authorities did not respond

favourably, he filed a writ petition in the year 1998

before a learned Single Judge of Rajasthan High

Court. The challenge of his dismissal from service

though was made only after his acquittal in the

criminal case, yet the challenge was on various

other grounds as well, such as the order of

termination not being passed by the appointing

authority, non-supply of inquiry report, not being

allowed to cross examine the witness, etc. All these

grounds did not find favour with the learned Single

Judge, except for the ground raised by the

respondent that now since he has faced a criminal

trial on the same set of charges, where he was

ultimately acquitted by the Sessions Court, his

dismissal order is liable to be quashed and he

7 | Page should be reinstated in service. The learned Single

Judge allowed his writ petition and his dismissal

order was quashed and orders for his reinstatement

were made with 50% back wages. State of

Rajasthan filed an appeal against this order before

Division Bench of the High Court which was

dismissed on 09.09.2020. The State is now before

this Court against the order of reinstatement

passed by the Rajasthan High Court.

5. We must reiterate that the High Court of Rajasthan,

both in the writ petition and special appeal had

allowed the case of respondent, Phool Singh only on

the ground, that now since he has been acquitted

by a criminal court, on the same set of facts and

charges on which he had faced a departmental

proceeding, the orders passed in departmental

proceedings are liable to be quashed and he must

be reinstated in service. As we have already

referred above, none of the other arguments raised

on behalf of the private respondent challenging

8 | Page procedural anomalies in the departmental

proceedings, violation of principles of natural justice

and fair play or lack of jurisdiction of the authority,

had found favour with either the learned Single

Judge or the Division Bench.

6. The case of the State, who is the appellant before

this Court is that the respondent was a member of a

disciplined force. There were extremely serious

charges against the respondent in the departmental

proceedings. He was charged of threatening and

extorting money from a member of public, roaming

in a public place under influence of liquor, and then

using a fire arm and causing injuries, which were all

very serious charges. Respondent was given full

opportunity to defend his case in the departmental

proceedings. He was given the opportunity to cross-

examine the prosecution witnesses and in fact, he

also presented nine defence witnesses who were

examined in the departmental proceedings. The

disciplinary authority concluded that the delinquent

9 | Page constable (respondent) had committed an act of

gross indiscipline and negligence, as well as

dereliction of duties and of misbehavior and

misconduct, and all this had tarnished the image of

Rajasthan Police in public. Under the circumstances,

the delinquent officer cannot be retained in Police

service and was thus dismissed from service with

immediate effect. The State would also argue that

the acquittal by the criminal court is of no

consequence, as far as departmental proceedings

are concerned.

7. The question before this Court is therefore only to

see whether the respondent can be reinstated in

service for the reason that now on the same set of

charges he has been acquitted by a criminal court?

8. There should be no ambiguity in law on this subject.

A departmental proceeding is different from a

criminal proceeding. The fundamental difference

between the two is that whereas in a departmental

proceeding a delinquent employee can be held

10 | P a g e guilty on the basis of “preponderance of

probabilities”, in a criminal court the prosecution

has to prove its case “beyond reasonable doubt”. In

short, the difference between the two proceedings

would lie in the nature of evidence and the degree

of its scrutiny. The two forums therefore run at

different levels. For this reason, this Court has

consistently held that merely because a person has

been acquitted in a criminal trial, he cannot be ipso

facto reinstated in service.

9. Be that as it may, a delinquent employee after his

dismissal from service, nevertheless, seeks

reinstatement when he is acquitted by a criminal

court on the same set of charges and facts. A very

heavy reliance is then placed on a decision of this

Court given in Capt. M. Paul Anthony v. Bharat

Gold Mines Ltd. & Anr.1 Reliance was placed on

this decision by the present respondent as well,

before the learned Single Judge, as well as before

the Division Bench of Rajasthan High Court. Both

1 (1999) 3 SCC 679

11 | P a g e the courts have relied on this judgment while giving

their decision in favour of the respondent. In Capt.

M. Paul Anthony, this Court had indeed held that

as the petitioner before them had been acquitted

on the same set of charges by a criminal court, he

should be reinstated in service, though he was

dismissed from service after facing a departmental

proceeding. But then the case of Capt. M. Paul

Anthony must be appreciated in the background of

its unique facts.

10. Capt. M. Paul Anthony was working in the year 1985

as a ‘Security Officer’ with ‘Bharat Gold Mines Ltd.’,

which was engaged in the mining of gold in the

Kolar Gold mines in Karnataka. On 02.06.1985 a

raid was conducted by the Superintendent of Police

at the residence of Capt. M. Paul Anthony (whom

we should refer here also as the ‘petitioner’), from

where a sponge gold ball weighing 4.5 grams and

1276 grams of ‘gold bearing sand’ were recovered.

He was immediately suspended from his services

12 | P a g e and the same day an F.I.R. was registered. The next

day petitioner received a charge sheet and hence

departmental proceedings were also initiated

against him. The petitioner then moved an

application before his disciplinary authorities

praying that the departmental proceedings be

stayed till the conclusion of the criminal

proceedings, but his request was turned down.

Meanwhile he returned to his home State of Kerala

and requested for an adjournment of the

disciplinary proceedings. This request was also

turned down. The departmental proceedings went

ex-parte against the petitioner where he was found

guilty of misconduct. On 07.06.1986 petitioner was

dismissed from service. During his entire period of

suspension, he was not given any subsistence

allowance.

On 03.02.1987 Capt. M. Paul Anthony was

acquitted in the criminal trial, on the grounds that

the prosecution had failed to establish its case,

13 | P a g e particularly the police raid on which the entire case

was based. The petitioner, immediately after his

acquittal, placed a copy of the judgment of the

criminal court before his departmental authorities

and prayed for his reinstatement. This was denied

and consequently the petitioner filed a

departmental appeal which was also dismissed. He

then approached the High Court of Karnataka,

where his writ petition was allowed by the Court

and his reinstatement was ordered on the ground

that on the same set of charges, the petitioner has

been acquitted by a criminal court and hence he

must be reinstated in service. The State filed a

special appeal before the Division Bench which was

allowed and the order of the learned Single Judge

was set aside. The petitioner (Capt. M. Paul

Anthony) then challenged the order of the Division

Bench of the Karnataka High Court before this

Court.

14 | P a g e There were two factors which weighed with

the Supreme Court, while deciding that case. The

first was the admitted fact that the petitioner was

not given any subsistence allowance during his

period of suspension and therefore, he was not in a

position to face the departmental proceedings in

Karnataka while he was residing in Kerala. The

second aspect was that the petitioner was being

charged on the same set of facts in the two

proceedings and therefore, he had made request to

the departmental authorities to stay the

departmental proceedings till the conclusion of the

criminal case, a request which was denied. This

aspect seems to be the most important factor

weighing in the mind of this Court, as this Court

was of the opinion that the charges, (both in the

criminal court and with the department), involved a

complicated question of fact and law, relating to the

“raid” made by the police, and therefore the

departmental proceedings should have been stayed

15 | P a g e and it should have awaited the result of the criminal

proceedings. It was in the raid made by the Police

that the ‘Gold sponge ball’ and ‘Gold bearing sand’

were allegedly recovered from his residence. This

factum of “raid and recovery” which was the

fulcrum of the case, stood disproved. Under these

circumstances, it was held that the petitioner was

liable to be reinstated. Capt. M. Paul Anthony

thus must be appreciated for its unique facts and to

our mind it does not lay down a law of universal

application.

11. We say this because as against Capt. M. Paul

Anthony, we have a large number of cases where

this Court has consistently held that the two

proceedings, i.e., criminal and departmental, are

entirely different and merely because one has been

acquitted in a criminal trial that itself will not result

in the reinstatement in service when one has been

found guilty in a departmental proceeding. We may

refer to a few of these decisions.

16 | P a g e In the case of Union of India v. Sitaram

Mishra2, a constable in Central Reserve Police

Force (CRPF) was charged for being negligent and

careless and therefore, was removed from service.

The facts of the case were that the constable while

removing the magazine of his 9mm carbine gun,

accidently fired eight rounds which resulted in the

death of one constable who was at the relevant

time in the same barrack. The constable was held

guilty of misconduct in the disciplinary proceedings

and was dismissed from service. Meanwhile the

constable was also tried for the offence under

Section 304 of IPC in a criminal trial where he was

acquitted. He thereafter filed a writ petition before

the High Court challenging his dismissal from

service. The writ petition was dismissed but later on

an appeal before a Division Bench, the order of the

learned Single Judge was set aside and it was

ordered that since the constable by that time had

2 (2019) 20 SCC 588

17 | P a g e been acquitted in the criminal court, he is liable to

be reinstated in service and since by that time he

had retired from service, he was to be treated in

service with directions that he be given back wages

and pension. This Court while deciding the appeal

filed by the Union of India came to the conclusion

that the grounds which weighed with the High Court

were specious, and merely because the employee

was acquitted by the criminal court it does not

mean, ipso-facto that he is entitled to be reinstated

in service, since he was dismissed from service

after facing a disciplinary proceeding. The reason

being that the disciplinary proceedings are

governed by a different standard of proof, which are

different from what is applied in a criminal

proceeding. Whereas, in a criminal trial the burden

lies on the prosecution to establish the charge

beyond reasonable doubt and in a departmental

proceeding, the charges have to be proved on the

basis of preponderance of probabilities.

18 | P a g e In the above case a distinction has also been

drawn by this Court between a “criminal offence”

and “misconduct”. One has to be proved in a

criminal court, the other in a departmental

proceeding, and though both may arise from the

same set of facts, yet there is a clear distinction

between the two and merely because one has been

acquitted in a criminal trial, it would not amount to

a reversal of the findings of “misconduct”, which

were arrived in a departmental proceeding. This

Court also observed that the High Court fell into an

error in doing exactly this, which was done by

drawing an ‘erroneous inference’ from the decision

of this Court given in Capt. M. Paul Anthony. We

must therefore, reproduce here the two paragraphs

from the judgment of this Court in Sitaram Mishra

(supra) :-

“14. The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct

19 | P a g e which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810]. The High Court adverted to the following principle of law laid down in the above judgment: (SCC p. 687, para 13)

“13….While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.”

15. It is undoubtedly correct that the charge in the criminal trial arose from the death of a co-employee in the course of the incident resulting from the firing of a bullet which took

20 | P a g e place from the weapon which was assigned to the first respondent as a member of the Force. But the charge of misconduct is on the ground of the negligence of the first respondent in handling his weapon and his failure to comply with the departmental instructions in regard to the manner in which the weapon should be handled. Consequently, the acquittal in the criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, having regard to the parameters that govern the exercise of judicial review in disciplinary matters, we are of the view that the judgment [Sitaram Mishra v. Union of India, 2007 SCC OnLine Cal 718 :

(2008) 1 Cal LJ 863] of the Division Bench of the High Court is unsustainable.” A three Judge Bench of this Court in Ajit

Kumar Nag v. General Manager (PJ), Indian Oil

Corpn. Ltd.3 held the position of law, was

explained as follows :-

“11….. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental - are entirely 3 (2005) 7 SCC 764

21 | P a g e different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with 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 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'…..”

22 | P a g e

12. Thus, in the present case, the learned Single Judge

as well as the Division Bench of Rajasthan High

Court were clearly wrong in interfering with the

order of the Disciplinary Authority of the Rajasthan

Police and placing their reliance on Capt. M. Paul

Anthony. It is the Disciplinary Authority which is

best equipped to reach a finding whether a

“misconduct” has been committed. The prime

concern of a Judge should be whether such a

finding has been arrived after following a fair

procedure, following the principles of natural justice

and fairness. This aspect has been underlined in a

recent judgment of this Court (State of Rajasthan

v. Heem Singh4). The relevant para is reproduced

as hereunder:-

“39. 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.

4 (2020) SCC OnLine SC 886

23 | P a g e 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

24 | P a g e suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse 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

25 | P a g e without which the judges’ craft is in vain.”

It is true that this Court, apart from the case of

Capt. M. Paul Anthony, has in a few cases not

interfered with the reinstatement of an employee

who was dismissed as a result of disciplinary

proceedings, and was only reinstated in service

because of his acquittal in criminal proceedings, but

again the reasons which weighed with the Court in

such cases were that in almost in all such cases,

the acquittal was an honourable acquittal and not

an acquittal on a technicality, or on acquittal given

because of “benefit of doubt”.

13. In the case at hand, respondent was convicted by

the Trial Court and in appeal the Appellate Court

only acquitted him by giving him a “benefit of

doubt”. The operative part of order dated

26.11.1994 of the Appellate Authority reads as

under: -

“Hence, on the basis of aforesaid analysis the present appeal on behalf of the appellant accused

26 | P a g e against the respondent/ prosecution is allowed and the judgment and sentence dated 21.3.94 passed by the Subordinate Court of Munsif & Judicial Magistrate Dholpur is hereby quashed and the above appellant/accused Phool Singh is acquitted for the charge u/s 392 IPC & u/s 3/25 of Arms Act by giving benefit of doubt.”

14. Therefore, in the present case the acquittal of the

respondent is not an honourable acquittal, but an

acquittal given due to a “benefit of doubt”. Under

these circumstances and in view of the position of

law as stated above, this appeal is allowed and the

order dated 29.01.2014 of the learned Single Judge

and the order dated 09.09.2020 of the Division

Bench of Rajasthan High Court, Jaipur Bench are

hereby set aside.

……..............................J [S. RAVINDRA BHAT]

……............................J. [SUDHANSHU DHULIA] New Delhi, September 02, 2022.

27 | P a g e