Union of India v. Dalbir Singh

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 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 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:

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 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 nonissuance 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 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 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.”

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:-

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

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:

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:

“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. 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:

28. Mr. Yadav, learned counsel for the writ petitioner has submitted that during the pendency of the writ petition before the High Court, 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.) 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.