UNION OF INDIA AND ORS. versus SITARAM MISHRA AND ANR.

UNION OF INDIA AND ORS.

SITARAM MISHRA AND ANR.

(Civil Appeal No. 6183 of 2010)

JULY 11, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

INDIRA BANERJEE, JJ.]

Service Law:

Dismissal from service – Under s. 11(1) of CRPF Act r/w CRPFRules – After holding disciplinary enquiry – Holding the delinquentguilty of misconduct for carelessly handling the weapon assignedto him as member of the force, resulting in death of one person –In criminal case u/s. 304 IPC the delinquent was acquitted – Writpetition challenging dismissal from service – Dismissed by HighCourt – Division Bench of High Court set aside the order of SingleJudge holding that charge of misconduct was not established –Appeal to Supreme Court – Held: There was no irregularity in theenquiry – High Court in exercise of judicial review was wrong inreappreciating the evidence and interfering with the finding ofdisciplinary authority – Acquittal of the delinquent in the criminalcase cannot operate ipso facto as ground for vitiating the findingof misconduct in disciplinary proceedings – Central Reserve PoliceForce Act, 1949 – s. 11(1) – Central Reserve Police Force Rules,1955 – r.27(a).

Departmental Enquiry – Standard of proof – Vis-a-vis criminaltrial – Disciplinary enquiry is governed by different standard ofproof than that which applies to criminal case – Criminal trial –Evidence – Standard of proof.

Administrative Law:

Judicial Review – In disciplinary matters – Scope of – Held:While deciding finding of misconduct in disciplinary enquiry,Court cannot reappreciate evidence – Such finding can be interferedwith only where the finding is based on no evidence.

586SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD : 1.1 The disciplinary authority found that the chargeof misconduct was sustainable on the basis of the evidence onthe record. The Division Bench of the High Court reversed thejudgment of Single Judge of High Court primarily on the basis ofBthe depositions of PW 5 and PW 6 to the effect that the 9MMcarbine was disassembled. The High Court was manifestly inerror in reappreciating the evidence which was adduced duringthe disciplinary enquiry. The issue, in the exercise of judicialreview against finding of misconduct in disciplinary enquiry,is whether the finding is sustainable with reference to someCevidence on the record. The High Court can, interfere only in asituation where the finding is based on no evidence. In such asituation, the finding is rendered perverse. [Para 9] [590-E-G]

1.2 In the present case, the impugned judgment of theDivision Bench adverts to the statement of the first respondentDof the circumstances in which the death of his colleague occurred.The part of the admission of the first respondent clearly indicatesthat it was as result of the handling of the weapon by the firstrespondent that the bullets were fired and the death of hiscolleague occurred in consequence. None of the material factsEare in dispute. In this view of the matter, the High Court wasmanifestly in error in interfering with the findings of thedisciplinary enquiry, particularly when Single Judge had, in thecourse of his judgment, found no irregularity in the enquiry. Thepunishment of dismissal is not disproportionate to the misconductproved. [Paras 9, 10 and 11] [590-G; 591-A-B]F

2.1 disciplinary enquiry is governed by different standardof proof than that which applies to criminal case. In criminaltrial, the burden lies on the prosecution to establish the chargebeyond reasonable doubt. The purpose of disciplinary enquiryis to enable the employer to determine as to whether an employeeGhas committed breach of the service rules. [Para 12] [591-C-D]

2.2 In the present case, the Single Judge has adverted toCircular Order No.16/85, which inter alia imposed the obligationupon the members of the CRPF to enforce strict fire discipline

and to take severe disciplinary action against the defaulters. Thefact that the first respondent was acquitted in the course of thecriminal trial cannot operate ipso facto as ground for vitiatingthe finding of misconduct which has been arrived at during thecourse of the disciplinary proceedings. The charge in the criminaltrial arose from the death of co-employee in the course of theincident resulting from the firing of bullet which took place fromthe weapon which was assigned to the first respondent as amember of the Force. But the charge of misconduct is on theground of the negligence of the first respondent in handling hisweapon and his failure to comply with the departmentalinstructions in regard to the manner in which the weapon shouldbe handled. Consequently, the acquittal in the criminal case wasnot ground for setting aside the penalty which was imposed inthe course of the disciplinary enquiry. Hence, having regard tothe parameters that govern the exercise of judicial review indisciplinary matters, the judgment of the Division Bench of theHigh Court is unsustainable. [Paras 12 and 13] [591-D, F;592-B-C]

Capt M Paul Anthony v Bharat Gold Mines Ltd (1999)3 SCC 679 : [1999] 2 SCR 257 – held not applicable.

Case Law Reference

[1999] 2 SCR 257held not applicablePara 12

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6183of 2010.

From the Judgment and Order dated 14.12.2007 of the High Courtat Calcutta in F.M.A. No. 717 of 2007.

S. S. Ray, Ms. Snidha Mehra, Chakitan Vikram Shekher Papta,Ms. Tanisha Samanta, B. V. Balramdas, Advs. for the Appellants.

P. K. Jain, Saurabh Jain, P. K. Goswami, Rameshwar PrasadGoyal, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. The first respondent was enlisted as constable in the CRPFon 20 September 1971. He was posted in the 41[st] Batallion in September1989. In February 1998, he was functioning as Head Constable and

Awas deployed at Ractiacherra, Police Station Jirania, West Tripura. Acarbine was issued to him. It is alleged that, on 18 February 1998 atabout 0945 hours, while he was cleaning the barrel of his loaded 9 MMcarbine in the barracks, he did not remove the magazine and proceededto clean the carbine carelessly. As result, eight rounds were fired.One of the bullets hit co-constable who was present in the barracks.BHe died as result of the injuries which were sustained. FirstInformation Report was lodged. The Commandant initiated disciplinaryproceeding against the first respondent. The charge was in the followingterms:

“That, No.710170325 HC Sita Ram Mishra, while serving as aCHead Constable (GD) in “B” Coy, duct and remissness in hiscapacity as member of the Force under Section 11(1) of CRPFAct, 1949, punishable under Rule 27(a) of CRPF Rules, 1955, inthat he on 18.02.1998 at about 0945 hours, started cleaning barrelof his loaded 9 MM Carbine (No.15356032, Butt no.13) in menDbarrack of B/41 Bn. CRPF, carelessly without removing itsmagazine on his bed. In this process of clearning, 08 Rounds gotfired automatically and one of these bullet hit No.901310271 Ct.Sailesh Kumar Tiwari who was present there in the barrack.No.901310271 Ct. Sailesh Kumar Tiwari subsequently succumbedto his injuries at about 1020 hours same day in Civil Hospital,EJirania, Agartala.”

2. After conducting disciplinary enquiry, the Enquiry Officersubmitted report on 12 March 1999. The first respondent was held tobe guilty of misconduct by the disciplinary authority, as result of whichthe penalty of dismissal from service was imposed under Section 11(1)Fof the CRPF Act 1949 read with Rule 27(a) of the CRPF Rules 1955.The appeal as well as the revision petition filed by the first respondentwere dismissed.

3. The first respondent was also tried of an offence under Section304 of the Indian Penal Code 1860[1]. He was acquitted by the JudicialGMagistrate, First Class, Agartala, Tripura West on 5 January 2002.

4. The writ petition filed by the first respondent under Article 226of the Constitution to challenge his dismissal from service was dismissedby learned Single Judge. However, in writ appeal, the Division Bench

H1 “IPC”

interfered with the judgment of the learned Single Judge on the groundthat the charge of misconduct was not established. Since the firstrespondent had, in the meantime, retired from service, the Division Benchdirected that he be treated in service until he attained the age ofsuperannuation and be paid full back wages after adjusting the subsistenceallowance paid during the period of suspension.

5. The High Court, by its impugned judgment in the writ appeal,held that:

(i)The charge of misconduct was belied by the depositions ofPW 5 and PW 6 during the course of the disciplinary enquiryto the effect that the carbine was disassembled when it wasbeing cleaned;

(ii)There was no evidence in support of the finding ofmisconduct;

(iii)The departmental proceedings as well as the criminal casewere “same and identical”; and

(iv)The departmental proceedings were not sustainable afterthe acquittal of the first respondent from the criminal case.

6. Learned counsel appearing on behalf of the appellants submittedthat the Division Bench of the High Court has fallen into serious errorin interfering with the dismissal of the writ petition by the learned SingleJudge, particularly in case such as present, where the charge ofmisconduct was duly proved on the basis of the evidence adduced in thedisciplinary enquiry. It was further submitted that the facts are not indispute, viz., that the first respondent was in possession of carbinewhich was assigned to him for his official duties; he was in the men’sbarracks; and the carbine was while being handled by the first respondentdischarged as result of which one of the bullets struck his colleaguewho died as result of the injuries. On these facts, it was submitted thata case of negligence was clearly established which warranted dismissalfrom service. The charge of criminal wrongdoing has to be proved beyondreasonable doubt whereas the disciplinary proceeding is governed by apreponderance of probability. On these grounds, it was submitted thatthe High Court was in error in interfering with the exercise of disciplinaryjurisdiction by the competent authority.

EFG

A7. On the other hand, learned counsel appearing on behalf of thefirst respondent, has placed reliance on the decision of the JudicialMagistrate acquitting the first respondent of the charge under Section304 of the IPC. It was urged that on the basis of the judgment ofacquittal, it is evident that there is no substance in the case that the firstrespondent was guilty of rash and negligent act. Moreover, it wasBurged that the first respondent has since retired from service and hispensionary dues should be directed to be released.

8. From the material on the record, certain facts are not in dispute.They are:C(i)The first respondent was in possession of weapon whichhad been issued to him as Head Constable in the CRPFposted at the 41[st] Batallion at the relevant point of time;

(ii)The death of the co-employee occurred in the course of thehandling of the weapon by the first respondent; andD(iii) Both the first respondent and the victim were in the men’sbarracks of the 41[st] Batallion.

9. The disciplinary authority found that the charge of misconductwas sustainable on the basis of the evidence on the record. The DivisionBench of the High Court reversed the judgment of the learned SingleEJudge primarily on the basis of the depositions of PW 5 and PW 6 to theeffect that the 9MM carbine was disassembled. The High Court wasmanifestly in error in reappreciating the evidence which was adducedduring the disciplinary enquiry. The issue, in the exercise of judicialreview against finding of misconduct in disciplinary enquiry, is whetherthe finding is sustainable with reference to some evidence on the record.FThe High Court can, it is well-settled, interfere only in situation wherethe finding is based on no evidence. In such situation, the finding isrendered perverse. In the present case, the impugned judgment of theDivision Bench adverts to the statement of the first respondent of thecircumstances in which the death of his colleague occurred. The relevantGextract is thus:

“...When I was about to go outside to see my luggage, I fitted themagazine of my Carbine and JAB MAINE MAGAZINE PARHATH MARA TO CARBINE SE FIRE HONE LAGA.”

10. This part of the admission of the first respondent clearlyindicates that it was as result of the handling of the weapon by the firstrespondent that the bullets were fired and the death of his colleagueoccurred in consequence. None of the material facts are in dispute.

11. In this view of the matter, the High Court was manifestly inerror in interfering with the findings of the disciplinary enquiry, particularlywhen learned Single Judge had, in the course of his judgment, found noirregularity in the enquiry. The punishment of dismissal is notdisproportionate to the misconduct proved.

12. The second ground, which has weighed with the High Court,is equally specious. disciplinary enquiry is governed by differentstandard of proof than that which applies to criminal case. In criminaltrial, the burden lies on the prosecution to establish the charge beyondreasonable doubt. The purpose of disciplinary enquiry is to enable theemployer to determine as to whether an employee has committed abreach of the service rules. In the present case, the learned Single Judgehas adverted to Circular Order No.16/85, which inter alia imposed thefollowing obligation upon the members of the CRPF:

“(c) strict fire discipline should be enforced by supervisory staffat all levels. In other words, loaded, and cocked weapons shouldnot be kept by the troops while in barracks/non operational places.

Severe disciplinary action must be taken against the defaulters.”

The fact that the first respondent was acquitted in the course ofthe criminal trial cannot operate ipso facto as ground for vitiating thefinding of misconduct which has been arrived at during the course of thedisciplinary proceedings. The High Court, in our view, has drawn anerroneous inference from the decision of this Court in Capt M PaulAnthony v Bharat Gold Mines Ltd[2]. The High Court adverted to thefollowing principle of law laid down in the above judgment:

“...While in the departmental proceedings the standard of proof isone of preponderance of the probabilities, in criminal case, thecharge has to be proved by the prosecution beyond reasonabledoubts. The little exception may be where the departmentalproceedings and the criminal case are based on the same set of

Afacts and the evidence in both the proceedings is common withoutthere being variance.”

13. It is undoubtedly correct that the charge in the criminal trialarose from the death of co-employee in the course of the incidentresulting from the firing of bullet which took place from the weaponBwhich was assigned to the first respondent as member of the Force.But the charge of misconduct is on the ground of the negligence of thefirst respondent in handling his weapon and his failure to comply withthe departmental instructions in regard to the manner in which the weaponshould be handled. Consequently, the acquittal in the criminal case wasnot ground for setting aside the penalty which was imposed in theCcourse of the disciplinary enquiry. Hence, having regard to the parametersthat govern the exercise of judicial review in disciplinary matters, weare of the view that the judgment of the Division Bench of the HighCourt is unsustainable.

14. For the above reasons, we allow the appeal and set aside theDimpugned judgment and order of the Division Bench of the High Courtdated 14 December 2007. In consequence, we maintain the judgmentof the learned Single Judge dismissing the writ petition filed by the firstrespondent under Article 226 of the Constitution. There shall be no orderas to costs.

Kalpana K. Tripathy

Appeal allowed.