THE STATE OF RAJASTHAN & ORS. versus PHOOL SINGH

[2022] 11 S.C.R.

ATHE STATE OF RAJASTHAN & ORS.

PHOOL SINGH

(Civil Appeal No. 5930 of 2022)

BSEPTEMBER 02, 2022

[S. RAVINDRA BHAT AND SUDHANSHU DHULIA, JJ.]

Service Law – Penal Code, 1860 – s.392 – Arms Act – ss.3/25– Respondent-delinquent employee’s dismissal from service wasquashed by High Court on the ground that he was acquitted byCcriminal court on the same set of facts and charges on which hefaced departmental proceeding, directed reinstatement in service –Correctness of – Held: departmental proceeding is different froma criminal proceeding – delinquent employee after his dismissalfrom service, nevertheless, seeks reinstatement when he is acquittedDby criminal court on the same set of charges and facts – Merelybecause person has been acquitted in criminal trial, he cannotbe ipso facto reinstated in service when found guilty in departmentalproceeding – In the present case, High Court erred in interferingwith the order of the Disciplinary Authority and placing relianceon Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. reportedEas [1999] 2 SCR 257 – It is the Disciplinary Authority which is bestequipped to reach finding whether “misconduct” has beencommitted – The prime concern of Judge should be whether sucha finding has been arrived after following fair procedure, theprinciples of natural justice and fairness – Further, Capt. M. PaulFAnthony case must be appreciated for its unique facts and it doesnot lay down law of universal application – Also, in the instantcase, the respondent was convicted by the Trial Court and in appealthe Appellate Court only acquitted him by giving him benefit ofdoubt – Thus, the acquittal of the respondent was not an honourableacquittal, but an acquittal given due to benefit of doubt – Order ofGSingle Judge and Division Bench of High Court set aside – PoliceAct – s. 34.

Service Law – Departmental proceeding vis-à-vis criminalproceeding – Held: Both are different – The fundamental differencebetween the two is that whereas in departmental proceeding aH

delinquent employee can be held guilty on the basis of“preponderance of probabilities”, in criminal court the prosecutionhas to prove its case “beyond reasonable doubt” – Differencebetween the two proceedings would lie in the nature of evidenceand the degree of its scrutiny – The two forums therefore run atdifferent levels.

Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. &Anr. (1999) 3 SCC 679 : [1999] 2 SCR 257 –distinguished.

Union of India v. Sitaram Mishra (2019) 20 SCC 588 :[2019] 9 SCR 585; Ajit Kumar Nag v. General Manager(PJ), Indian Oil Corpn. Ltd. (2005) 7 SCC 764 : [2005]3 Suppl. SCR 314; State of Rajasthan v. Heem Singh(2020) SCC OnLine SC 886 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5930of 2022.

From the Judgment and Order dated 09.09.2020 of the High Courtof Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Writ) No.1274 of 2014.

Vishal Meghwal, Milind Kumar, Advs. for the Appellants.

Vikas Verma, Ms. Sapna Verma, Shafik Ahmed, V. Elanchezhiyan,Advs. for the Respondent.

The Judgment of the Court was delivered by

SUDHANSHU DHULIA, J.

1. Leave granted. The State of Rajasthan is in appeal before thisCourt against the order dated 09.09.2020, passed by Division Benchof Rajasthan High Court (Jaipur Bench). By the impugned order theDivision Bench has upheld the order of the learned Single Judge whichhad allowed the writ petition of the present respondent, quashing hisdismissal from service.

A2. Respondent Phool Singh had entered Rajasthan Police Serviceas constable, in the year 1987. The same year, while he was posted atthe Police Station Mania, District Dholpur (Rajasthan), he allegedlycommitted criminal offence, apart from an act of gross indiscipline.On the fateful day of 15.10.1987, he was wandering around the town inthe evening, in company of one Lokman. Respondent was off duty butBin police uniform, when he allegedly caught one Mahesh Kumar anddemanded Rs.100/- from him. On his refusal, Mahesh Kumar was askedto show the papers of his motorcycle and when he failed to show thesepapers, Phool Singh took hold of this motorcycle, and then tried to runaway with it. Meanwhile, due to the alarm raised by Mahesh Kumar aCcrowd also gathers in support of Mahesh Kumar. At this point, PhoolSingh is alleged to have waved gun (“Pachpera”), towards the crowdbut was nevertheless chased by the crowd, till Phool Singh succeeds ingetting inside his house, which was nearby. Once inside his house, hefires from his gun which injures the inmates of the house, i.e., his familymembers, besides damaging the property. All this results in lodging of anDFIR (No. 146/1987) against the respondent, at Police Station Mania,under Sections 392, 307 IPC and Section 34 of Police Act read withSection 3/25 of Arms Act. After investigation in the case chargesheetwas filed against Phool Singh and Lokman. Ultimately charges wereframed under Section 392 IPC and Section 3/25 of the Arms Act by theETrial Court. The Trial Court then convicts Phool Singh, under Section392 IPC and Section 3/25 Arms Act and sentences him for one-yearrigorous imprisonment and fine for each of the above two offences, withdefault stipulations, vide order dated 31.03.1994. The co-accused Lokmanis acquitted. This order was challenged by Phool Singh in appeal and thelearned Sessions Judge, Dholpur, allows the appeal, and sets aside theForder of the Trial Court, giving “benefit of doubt” to the accused.3. Meanwhile, departmental proceeding had also been initiatedagainst the delinquent constable on three charges, which are as follows:-

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

CHARGE NO.2:- On 15.10.87, you in drunken state dressedin uniform alongwith Lokman Gurjar went to Bedia KasbaMohalla where being off duty and without any authority youdemanded for documents pertaining to Rajdoot Motorcycle fromMahesh Kumar S/o Shiv Hare Brahmin R/o Patpara Dholpur andalso indecently abused and demanded for bribe of Rs.100/- andforcibly looted and took away Motorcycle bearing registrationNo.RJD 7722 from Mahesh Kumar and due to which lot ofpeople gathered and they chased behind you.

CHARGE NO. 3:- On being chased by public you ran andreached your quarter in the compound of Police Station Maniaand in drunk state fired in your self-defence inside your housefrom the Pachpera snatched away by you from Shiv Ram but thegunshot hit the balcony in the chowk of the quarter and as resultbroken pieces of balcony fell on your family members and due towhich your family members got injured and the said incident ledto the registration of FIR No.146 dated 15.10.87 against you u/s392, 307/34 of Police Act & 3/25 of Arms Act thereafterinvestigation was conducted.”In the departmental enquiry fourteen prosecution witnesses wereexamined. Some of these witnesses supported the case of the prosecution,others did not. Additionally, material exhibits were also examined suchas, the first information report, the memorandum of seizure of themotorcycle and more importantly the Breath Alcohol Analysis Test ofrespondent which was positive for alcohol consumption. The delinquentconstable had also examined nine defence witnesses.

All the three charges were ultimately proved against therespondent in the disciplinary proceedings and he was dismissed fromservice, vide order dated 18.12.1989. This order of the disciplinaryauthority was taken in appeal by respondent which was also dismissedby the Appellate Authority on 23.08.1990. Then review was also filed,which was also dismissed on 03.06.1994. By the time the ReviewingAuthority had dismissed the review of the respondent (i.e., on03.06.1994), the respondent who was also facing criminal trial wasconvicted 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. Later, aswe know, his conviction was set aside by the Sessions Court.

A4. Respondent Phool Singh after his acquittal moves an applicationbefore the authorities for his reinstatement. Since the authorities did notrespond favourably, he filed writ petition in the year 1998 before alearned Single Judge of Rajasthan High Court. The challenge of hisdismissal from service though was made only after his acquittal in thecriminal case, yet the challenge was on various other grounds as well,Bsuch as the order of termination not being passed by the appointingauthority, non-supply of inquiry report, not being allowed to cross examinethe witness, etc. All these grounds did not find favour with the learnedSingle Judge, except for the ground raised by the respondent that nowsince he has faced criminal trial on the same set of charges, where heCwas ultimately acquitted by the Sessions Court, his dismissal order isliable to be quashed and he should be reinstated in service. The learnedSingle Judge allowed his writ petition and his dismissal order was quashedand orders for his reinstatement were made with 50% back wages.State of Rajasthan filed an appeal against this order before DivisionBench of the High Court which was dismissed on 09.09.2020. The StateDis now before this Court against the order of reinstatement passed bythe Rajasthan High Court.

5. We must reiterate that the High Court of Rajasthan, both in thewrit petition and special appeal had allowed the case of respondent,Phool Singh only on the ground, that now since he has been acquitted byEa criminal court, on the same set of facts and charges on which he hadfaced departmental proceeding, the orders passed in departmentalproceedings are liable to be quashed and he must be reinstated in service.As we have already referred above, none of the other arguments raisedon behalf of the private respondent challenging procedural anomalies in

Fthe departmental proceedings, violation of principles of natural justiceand fair play or lack of jurisdiction of the authority, had found favourwith either the learned Single Judge or the Division Bench.

6. The case of the State, who is the appellant before this Court isthat the respondent was member of disciplined force. There wereGextremely serious charges against the respondent in the departmentalproceedings. He was charged of threatening and extorting money froma member of public, roaming in public place under influence of liquor,and then using fire arm and causing injuries, which were all very seriouscharges. Respondent was given full opportunity to defend his case in thedepartmental proceedings. He was given the opportunity to cross-Hexamine the prosecution witnesses and in fact, he also presented ninedefence witnesses who were examined in the departmental proceedings.The disciplinary authority concluded that the delinquent constable(respondent) had committed an act of gross indiscipline and negligence,as well as dereliction of duties and of misbehavior and misconduct, andall this had tarnished the image of Rajasthan Police in public. Under thecircumstances, the delinquent officer cannot be retained in Police serviceand was thus dismissed from service with immediate effect. The Statewould also argue that the acquittal by the criminal court is of noconsequence, as far as departmental proceedings are concerned.

7. The question before this Court is therefore only to see whetherthe respondent can be reinstated in service for the reason that now onthe same set of charges he has been acquitted by criminal court?

8. There should be no ambiguity in law on this subject. Adepartmental proceeding is different from criminal proceeding. Thefundamental difference between the two is that whereas in adepartmental proceeding delinquent employee can be held guilty onthe basis of “preponderance of probabilities”, in criminal court theprosecution has to prove its case “beyond reasonable doubt”. In short,the difference between the two proceedings would lie in the nature ofevidence and the degree of its scrutiny. The two forums therefore run atdifferent levels. For this reason, this Court has consistently held thatmerely because person has been acquitted in criminal trial, he cannotbe ipso facto reinstated in service.

9. Be that as it may, delinquent employee after his dismissalfrom service, nevertheless, seeks reinstatement when he is acquitted bya criminal court on the same set of charges and facts. very heavyreliance is then placed on decision of this Court given in Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. & Anr.[1] Reliance wasplaced on this decision by the present respondent as well, before thelearned Single Judge, as well as before the Division Bench of RajasthanHigh Court. Both the courts have relied on this judgment while givingtheir decision in favour of the respondent. In Capt. M. Paul Anthony,this Court had indeed held that as the petitioner before them had beenacquitted on the same set of charges by criminal court, he should bereinstated in service, though he was dismissed from service after facing

Aa departmental proceeding. But then the case of Capt. M. Paul Anthonymust 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 engagedin the mining of gold in the Kolar Gold mines in Karnataka. On 02.06.1985Ba raid was conducted by the Superintendent of Police at the residenceof Capt. M. Paul Anthony (whom we should refer here also as the‘petitioner’), from where sponge gold ball weighing 4.5 grams and1276 grams of ‘gold bearing sand’ were recovered. He was immediatelysuspended from his services and the same day an F.I.R. was registered.The next day petitioner received charge sheet and hence departmentalCproceedings were also initiated against him. The petitioner then movedan application before his disciplinary authorities praying that thedepartmental proceedings be stayed till the conclusion of the criminalproceedings, but his request was turned down. Meanwhile he returnedto his home State of Kerala and requested for an adjournment of theDdisciplinary proceedings. This request was also turned down. Thedepartmental proceedings went ex-parte against the petitioner wherehe was found guilty of misconduct. On 07.06.1986 petitioner wasdismissed from service. During his entire period of suspension, he wasnot given any subsistence allowance.EOn 03.02.1987 Capt. M. Paul Anthony was acquitted in thecriminal trial, on the grounds that the prosecution had failed to establishits case, particularly the police raid on which the entire case was based.The petitioner, immediately after his acquittal, placed copy of thejudgment of the criminal court before his departmental authorities andprayed for his reinstatement. This was denied and consequently theFpetitioner filed departmental appeal which was also dismissed. Hethen approached the High Court of Karnataka, where his writ petitionwas allowed by the Court and his reinstatement was ordered on theground that on the same set of charges, the petitioner has been acquittedby criminal court and hence he must be reinstated in service. TheGState filed special appeal before the Division Bench which was allowedand the order of the learned Single Judge was set aside. The petitioner(Capt. M. Paul Anthony) then challenged the order of the Division Benchof the Karnataka High Court before this Court.

There were two factors which weighed with the Supreme Court,Hwhile deciding that case. The first was the admitted fact that the petitioner

was not given any subsistence allowance during his period of suspensionand therefore, he was not in position to face the departmentalproceedings in Karnataka while he was residing in Kerala. The secondaspect was that the petitioner was being charged on the same set offacts in the two proceedings and therefore, he had made request to thedepartmental authorities to stay the departmental proceedings till theconclusion of the criminal case, request which was denied. This aspectseems 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 criminalcourt and with the department), involved complicated question of factand law, relating to the “raid” made by the police, and therefore thedepartmental proceedings should have been stayed and it should haveawaited the result of the criminal proceedings. It was in the raid madeby the Police that the ‘Gold sponge ball’ and ‘Gold bearing sand’ wereallegedly recovered from his residence. This factum of “raid andrecovery” which was the fulcrum of the case, stood disproved. Underthese circumstances, it was held that the petitioner was liable to bereinstated. Capt. M. Paul Anthony thus must be appreciated for itsunique facts and to our mind it does not lay down law of universalapplication.

11. We say this because as against Capt. M. Paul Anthony, wehave large number of cases where this Court has consistently heldthat the two proceedings, i.e., criminal and departmental, are entirelydifferent and merely because one has been acquitted in criminal trialthat itself will not result in the reinstatement in service when one hasbeen found guilty in departmental proceeding. We may refer to fewof these decisions.

In the case of Union of India v. Sitaram Mishra[2], constablein Central Reserve Police Force (CRPF) was charged for being negligentand careless and therefore, was removed from service. The facts of thecase were that the constable while removing the magazine of his 9mmcarbine gun, accidently fired eight rounds which resulted in the death ofone constable who was at the relevant time in the same barrack. Theconstable was held guilty of misconduct in the disciplinary proceedingsand was dismissed from service. Meanwhile the constable was alsotried for the offence under Section 304 of IPC in criminal trial wherehe was acquitted. He thereafter filed writ petition before the High

ACourt challenging his dismissal from service. The writ petition wasdismissed but later on an appeal before Division Bench, the order ofthe learned Single Judge was set aside and it was ordered that since theconstable by that time had been acquitted in the criminal court, he isliable to be reinstated in service and since by that time he had retiredfrom service, he was to be treated in service with directions that he beBgiven back wages and pension. This Court while deciding the appealfiled by the Union of India came to the conclusion that the groundswhich weighed with the High Court were specious, and merely becausethe 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 dismissedCfrom service after facing disciplinary proceeding. The reason beingthat the disciplinary proceedings are governed by different standard ofproof, which are different from what is applied in criminal proceeding.Whereas, in criminal trial the burden lies on the prosecution to establishthe charge beyond reasonable doubt and in departmental proceeding,the charges have to be proved on the basis of preponderance ofDprobabilities.

In the above case distinction has also been drawn by this Courtbetween “criminal offence” and “misconduct”. One has to be provedin criminal court, the other in departmental proceeding, and thoughboth may arise from the same set of facts, yet there is clear distinctionEbetween the two and merely because one has been acquitted in criminaltrial, it would not amount to reversal of the findings of “misconduct”,which were arrived in departmental proceeding. This Court also observedthat the High Court fell into an error in doing exactly this, which wasdone by drawing an ‘erroneous inference’ from the decision of this CourtFgiven in Capt. M. Paul Anthony. We must therefore, reproduce herethe two paragraphs from the judgment of this Court in Sitaram Mishra(supra) :-

“14. The fact that the first respondent was acquitted in the courseof the criminal trial cannot operate ipso facto as ground forGvitiating the finding of misconduct which has been arrived at duringthe course of the disciplinary proceedings. The High Court, in ourview, has drawn an erroneous inference from the decision of thisCourt in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. PaulAnthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999SCC (L&S) 810]. The High Court adverted to the followingH

principle of law laid down in the above judgment: (SCC p. 687,para 13)

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

15. 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 theweapon which was assigned to the first respondent as memberof the Force. But the charge of misconduct is on the ground ofthe negligence of the first respondent in handling his weapon andhis failure to comply with the departmental instructions in regardto the manner in which the weapon should be handled.Consequently, the acquittal in the criminal case was not groundfor setting aside the penalty which was imposed in the course ofthe disciplinary enquiry. Hence, having regard to the parametersthat govern the exercise of judicial review in disciplinary matters,we are of the view that the judgment [Sitaram Mishra v. Unionof India, 2007 SCC OnLine Cal 718 : (2008) 1 Cal LJ 863] of theDivision Bench of the High Court is unsustainable.” three Judge Bench of this Court in Ajit Kumar Nag v. GeneralManager (PJ), Indian Oil Corpn. Ltd.[3]held the position of law, wasexplained as follows :-

“11….. In our judgment, the law is fairly well settled. Acquittal bya criminal court would not debar an employer from exercisingpower in accordance with Rules and Regulations in force. Thetwo 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 appropriatepunishment on offender, the purpose of enquiry proceedings is todeal with the delinquent departmentally and to impose penalty inaccordance with service Rules. In criminal trial, incriminating

Astatement made by the accused in certain circumstances or beforecertain officers is totally inadmissible in evidence. Such strict rulesof evidence and procedure would not apply to departmentalproceedings. The degree of proof which is necessary to order aconviction is different from the degree of proof necessary to recordthe commission of delinquency. The rule relating to appreciationBof evidence in the two proceedings is also not similar. In criminallaw, burden of proof is on the prosecution and unless theprosecution is able to prove the guilt of the accused ‘beyondreasonable doubt’, he cannot be convicted by court of law. Indepartmental enquiry, on the other hand, penalty can be imposedCon the delinquent officer on finding recorded on the basis of‘preponderance of probability’…..”

12. Thus, in the present case, the learned Single Judge as well asthe Division Bench of Rajasthan High Court were clearly wrong ininterfering with the order of the Disciplinary Authority of the RajasthanDPolice and placing their reliance on Capt. M. Paul Anthony. It is theDisciplinary Authority which is best equipped to reach finding whethera “misconduct” has been committed. The prime concern of Judgeshould be whether such finding has been arrived after following fairprocedure, following the principles of natural justice and fairness. Thisaspect has been underlined in recent judgment of this Court (State ofERajasthan v. Heem Singh[4]). The relevant para is reproduced ashereunder:-

“39. In exercising judicial review in disciplinary matters, there aretwo ends of the spectrum. The first embodies rule of restraint.The second defines when interference is permissible. The rule ofFrestraint constricts the ambit of judicial review. This is for validreason. The determination of whether misconduct has beencommitted lies primarily within the domain of the disciplinaryauthority. The judge does not assume the mantle of the disciplinaryauthority. Nor does the judge wear the hat of an employer.GDeference to finding of fact by the disciplinary authority is arecognition of the idea that it is the employer who is responsiblefor the efficient conduct of their service. Disciplinary enquirieshave to abide by the rules of natural justice. But they are notgoverned by strict rules of evidence which apply to judicial

H4 (2020) SCC OnLine SC 886

proceedings. The standard of proof is hence not the strict standardwhich governs criminal trial, of proof beyond reasonable doubt,but civil standard governed by preponderance of probabilities.Within the rule of preponderance, there are varying approachesbased on context and subject. The first end of the spectrum isfounded on deference and autonomy – deference to the positionof the disciplinary authority as fact finding authority andautonomy of the employer in maintaining discipline and efficiencyof the service. At the other end of the spectrum is the principlethat the court has the jurisdiction to interfere when the findings inthe enquiry are based on no evidence or when they suffer fromperversity. failure to consider vital evidence is an incident ofwhat the law regards as perverse determination of fact.Proportionality is an entrenched feature of our jurisprudence.Service jurisprudence has recognized it for long years in allowingfor the authority of the court to interfere when the finding or thepenalty are disproportionate to the weight of the evidence ormisconduct. Judicial craft lies in maintaining steady sail betweenthe banks of these two shores which have been termed as thetwo ends of the spectrum. Judges do not rest with mere recitationof the hands-off mantra when they exercise judicial review. Todetermine whether the finding in disciplinary enquiry is basedon some evidence an initial or threshold level of scrutiny isundertaken. That is to satisfy the conscience of the court thatthere is some evidence to support the charge of misconduct andto guard against perversity. But this does not allow the court tore-appreciate evidentiary findings in disciplinary enquiry or tosubstitute view which appears to the judge to be moreappropriate. To do so would offend the first principle which hasbeen outlined above. The ultimate guide is the exercise of robustcommon sense without which the judges’ craft is in vain.”

It is true that this Court, apart from the case of Capt. M. PaulAnthony, has in few cases not interfered with the reinstatement of anemployee who was dismissed as result of disciplinary proceedings,and was only reinstated in service because of his acquittal in criminalproceedings, but again the reasons which weighed with the Court insuch cases were that in almost in all such cases, the acquittal was anhonourable acquittal and not an acquittal on technicality, or on acquittalgiven because of “benefit of doubt”.

A13. In the case at hand, respondent was convicted by the TrialCourt and in appeal the Appellate Court only acquitted him by giving hima “benefit of doubt”. The operative part of order dated 26.11.1994 of theAppellate Authority reads as under: -

“Hence, on the basis of aforesaid analysis the present appeal onBbehalf of the appellant accused against the respondent/ prosecutionis allowed and the judgment and sentence dated 21.3.94 passedby the Subordinate Court of Munsif & Judicial Magistrate Dholpuris hereby quashed and the above appellant/accused Phool Singhis acquitted for the charge u/s 392 IPC & u/s 3/25 of Arms Act bygiving benefit of doubt.”C

14. Therefore, in the present case the acquittal of the respondentis not an honourable acquittal, but an acquittal given due to “benefit ofdoubt”. Under these circumstances and in view of the position of law asstated above, this appeal is allowed and the order dated 29.01.2014 ofthe learned Single Judge and the order dated 09.09.2020 of the DivisionDBench of Rajasthan High Court, Jaipur Bench are hereby set aside.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.