UNION OF INDIA AND ORS.versusSITARAM MISHRA AND ANR.

                         [2019] 9 S.C.R. 585                           585


                  UNION OF INDIA AND ORS.                              A
                                 v.
                 SITARAM MISHRA AND ANR.
                  (Civil Appeal No. 6183 of 2010)
                            JULY 11, 2019                              B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                     INDIRA BANERJEE, JJ.]
      Service Law:
                                                                       C
       Dismissal from service – Under s. 11(1) of CRPF Act r/w CRPF
Rules – After holding disciplinary enquiry – Holding the delinquent
guilty of misconduct for carelessly handling the weapon assigned
to him as a member of the force, resulting in death of one person –
In criminal case u/s. 304 IPC the delinquent was acquitted – Writ
petition challenging dismissal from service – Dismissed by High        D
Court – Division Bench of High Court set aside the order of Single
Judge holding that charge of misconduct was not established –
Appeal to Supreme Court – Held: There was no irregularity in the
enquiry – High Court in exercise of judicial review was wrong in
reappreciating the evidence and interfering with the finding of
disciplinary authority – Acquittal of the delinquent in the criminal   E
case cannot operate ipso facto as a ground for vitiating the finding
of misconduct in disciplinary proceedings – Central Reserve Police
Force Act, 1949 – s. 11(1) – Central Reserve Police Force Rules,
1955 – r.27(a).
       Departmental Enquiry – Standard of proof – Vis-a-vis criminal   F
trial – Disciplinary enquiry is governed by a different standard of
proof than that which applies to a criminal case – Criminal trial –
Evidence – Standard of proof.
      Administrative Law:
                                                                       G
      Judicial Review – In disciplinary matters – Scope of – Held:
While deciding a finding of misconduct in a disciplinary enquiry,
Court cannot reappreciate evidence – Such finding can be interfered
with only where the finding is based on no evidence.

                                                                       H
                                585
586            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A           Allowing the appeal, the Court
            HELD : 1.1 The disciplinary authority found that the charge
      of misconduct was sustainable on the basis of the evidence on
      the record. The Division Bench of the High Court reversed the
      judgment of Single Judge of High Court primarily on the basis of
B     the depositions of PW 5 and PW 6 to the effect that the 9MM
      carbine was disassembled. The High Court was manifestly in
      error in reappreciating the evidence which was adduced during
      the disciplinary enquiry. The issue, in the exercise of judicial
      review against a finding of misconduct in a disciplinary enquiry,
      is whether the finding is sustainable with reference to some
C     evidence on the record. The High Court can, interfere only in a
      situation where the finding is based on no evidence. In such a
      situation, the finding is rendered perverse. [Para 9] [590-E-G]
             1.2 In the present case, the impugned judgment of the
      Division Bench adverts to the statement of the first respondent
D     of the circumstances in which the death of his colleague occurred.
      The part of the admission of the first respondent clearly indicates
      that it was as a result of the handling of the weapon by the first
      respondent that the bullets were fired and the death of his
      colleague occurred in consequence. None of the material facts
E     are in dispute. In this view of the matter, the High Court was
      manifestly in error in interfering with the findings of the
      disciplinary enquiry, particularly when a Single Judge had, in the
      course of his judgment, found no irregularity in the enquiry. The
      punishment of dismissal is not disproportionate to the misconduct
      proved. [Paras 9, 10 and 11] [590-G; 591-A-B]
F
             2.1 A disciplinary enquiry is governed by a different standard
      of proof than that which applies to a criminal case. In a criminal
      trial, the burden lies on the prosecution to establish the charge
      beyond reasonable doubt. The purpose of a disciplinary enquiry
      is to enable the employer to determine as to whether an employee
G     has committed a breach of the service rules. [Para 12] [591-C-D]
           2.2 In the present case, the Single Judge has adverted to
      Circular Order No.16/85, which inter alia imposed the obligation
      upon the members of the CRPF to enforce strict fire discipline

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UNION OF INDIA AND ORS. v. SITARAM MISHRA AND ANR.                       587


and to take severe disciplinary action against the defaulters. The       A
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 which has been arrived at during the
course of the disciplinary proceedings. The charge in the criminal
trial arose from the death of a co-employee in the course of the
                                                                         B
incident resulting from the firing of a bullet which took 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          C
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, the judgment of the Division Bench of the
                                                                         D
High 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                                E
[1999] 2 SCR 257        held not applicable             Para 12
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6183
of 2010.
      From the Judgment and Order dated 14.12.2007 of the High Court
at Calcutta in F.M.A. No. 717 of 2007.                                   F
     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 Prasad
Goyal, Advs. for the Respondents.
                                                                         G
      The Judgment of the Court was delivered by
      DR. DHANANJAYA Y CHANDRACHUD, J.
      1. The first respondent was enlisted as a constable in the CRPF
on 20 September 1971. He was posted in the 41st Batallion in September
1989. In February 1998, he was functioning as Head Constable and         H
588                  SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A     was deployed at Ractiacherra, Police Station Jirania, West Tripura. A
      carbine was issued to him. It is alleged that, on 18 February 1998 at
      about 0945 hours, while he was cleaning the barrel of his loaded 9 MM
      carbine in the barracks, he did not remove the magazine and proceeded
      to clean the carbine carelessly. As a result, eight rounds were fired.
      One of the bullets hit a co-constable who was present in the barracks.
B
      He died as a result of the injuries which were sustained. A First
      Information Report was lodged. The Commandant initiated a disciplinary
      proceeding against the first respondent. The charge was in the following
      terms:
                  “That, No.710170325 HC Sita Ram Mishra, while serving as a
C                 Head Constable (GD) in “B” Coy, duct and remissness in his
                  capacity as a member of the Force under Section 11(1) of CRPF
                  Act, 1949, punishable under Rule 27(a) of CRPF Rules, 1955, in
                  that he on 18.02.1998 at about 0945 hours, started cleaning barrel
                  of his loaded 9 MM Carbine (No.15356032, Butt no.13) in men
D                 barrack of B/41 Bn. CRPF, carelessly without removing its
                  magazine on his bed. In this process of clearning, 08 Rounds got
                  fired 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 succumbed
                  to his injuries at about 1020 hours same day in Civil Hospital,
E                 Jirania, Agartala.”
             2. After conducting a disciplinary enquiry, the Enquiry Officer
      submitted a report on 12 March 1999. The first respondent was held to
      be guilty of misconduct by the disciplinary authority, as a result of which
      the penalty of dismissal from service was imposed under Section 11(1)
F     of 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 respondent
      were dismissed.
            3. The first respondent was also tried of an offence under Section
      304 of the Indian Penal Code 18601. He was acquitted by the Judicial
G     Magistrate, First Class, Agartala, Tripura West on 5 January 2002.
             4. The writ petition filed by the first respondent under Article 226
      of the Constitution to challenge his dismissal from service was dismissed
      by a learned Single Judge. However, in a writ appeal, the Division Bench
      1
H         “IPC”
UNION OF INDIA AND ORS. v. SITARAM MISHRA AND ANR.                             589
       [DR. DHANANJAYA Y CHANDRACHUD, J.]

interfered with the judgment of the learned Single Judge on the ground         A
that the charge of misconduct was not established. Since the first
respondent had, in the meantime, retired from service, the Division Bench
directed that he be treated in service until he attained the age of
superannuation and be paid full back wages after adjusting the subsistence
allowance paid during the period of suspension.
                                                                               B
       5. The High Court, by its impugned judgment in the writ appeal,
held that:
      (i)     The charge of misconduct was belied by the depositions of
              PW 5 and PW 6 during the course of the disciplinary enquiry
              to the effect that the carbine was disassembled when it was      C
              being cleaned;
      (ii)    There was no evidence in support of the finding of
              misconduct;
      (iii)   The departmental proceedings as well as the criminal case
              were “same and identical”; and                                   D
      (iv)    The departmental proceedings were not sustainable after
              the acquittal of the first respondent from the criminal case.
       6. Learned counsel appearing on behalf of the appellants submitted
that the Division Bench of the High Court has fallen into a serious error
                                                                               E
in interfering with the dismissal of the writ petition by the learned Single
Judge, particularly in a case such as present, where the charge of
misconduct was duly proved on the basis of the evidence adduced in the
disciplinary enquiry. It was further submitted that the facts are not in
dispute, viz., that the first respondent was in possession of a carbine
which was assigned to him for his official duties; he was in the men’s         F
barracks; and the carbine was while being handled by the first respondent
discharged as a result of which one of the bullets struck his colleague
who died as a result of the injuries. On these facts, it was submitted that
a case of negligence was clearly established which warranted dismissal
from service. The charge of criminal wrongdoing has to be proved beyond
                                                                               G
reasonable doubt whereas the disciplinary proceeding is governed by a
preponderance of probability. On these grounds, it was submitted that
the High Court was in error in interfering with the exercise of disciplinary
jurisdiction by the competent authority.

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590                SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A            7. On the other hand, learned counsel appearing on behalf of the
      first respondent, has placed reliance on the decision of the Judicial
      Magistrate acquitting the first respondent of the charge under Section
      304 of the IPC. It was urged that on the basis of the judgment of
      acquittal, it is evident that there is no substance in the case that the first
      respondent was guilty of a rash and negligent act. Moreover, it was
B
      urged that the first respondent has since retired from service and his
      pensionary 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 a weapon which
                    had been issued to him as a Head Constable in the CRPF
                    posted at the 41st Batallion at the relevant point of time;
             (ii) The death of the co-employee occurred in the course of the
                  handling of the weapon by the first respondent; and
D            (iii) Both the first respondent and the victim were in the men’s
                   barracks of the 41st Batallion.
             9. The disciplinary authority found that the charge of misconduct
      was sustainable on the basis of the evidence on the record. The Division
      Bench of the High Court reversed the judgment of the learned Single
E     Judge primarily on the basis of the depositions of PW 5 and PW 6 to the
      effect that the 9MM carbine was disassembled. The High Court was
      manifestly in error in reappreciating the evidence which was adduced
      during the disciplinary enquiry. The issue, in the exercise of judicial
      review against a finding of misconduct in a disciplinary enquiry, is whether
F     the finding is sustainable with reference to some evidence on the record.
      The High Court can, it is well-settled, interfere only in a situation where
      the finding is based on no evidence. In such a situation, the finding is
      rendered perverse. In the present case, the impugned judgment of the
      Division Bench adverts to the statement of the first respondent of the
      circumstances in which the death of his colleague occurred. The relevant
G     extract is thus:
             “...When I was about to go outside to see my luggage, I fitted the
             magazine of my Carbine and JAB MAINE MAGAZINE PAR
             HATH MARA TO CARBINE SE FIRE HONE LAGA.”

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UNION OF INDIA AND ORS. v. SITARAM MISHRA AND ANR.                                 591
       [DR. DHANANJAYA Y CHANDRACHUD, J.]

      10. This part of the admission of the first respondent clearly               A
indicates that it was as a result of the handling of the weapon by the first
respondent that the bullets were fired and the death of his colleague
occurred in consequence. None of the material facts are in dispute.
        11. In this view of the matter, the High Court was manifestly in
error in interfering with the findings of the disciplinary enquiry, particularly   B
when a learned Single Judge had, in the course of his judgment, found no
irregularity in the enquiry. The punishment of dismissal is not
disproportionate to the misconduct proved.
        12. The second ground, which has weighed with the High Court,
is equally specious. A disciplinary enquiry is governed by a different             C
standard of proof than that which applies to a criminal case. In a criminal
trial, the burden lies on the prosecution to establish the charge beyond
reasonable doubt. The purpose of a disciplinary enquiry is to enable the
employer to determine as to whether an employee has committed a
breach of the service rules. In the present case, the learned Single Judge
has adverted to Circular Order No.16/85, which inter alia imposed the              D
following obligation upon the members of the CRPF:
         “(c) strict fire discipline should be enforced by supervisory staff
         at all levels. In other words, loaded, and cocked weapons should
         not be kept by the troops while in barracks/non operational places.
                                                                                   E
           Severe disciplinary action must be taken against the defaulters.”
       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 which has been arrived at during the course of the
disciplinary proceedings. The High Court, in our view, has drawn an                F
erroneous inference from the decision of this Court in Capt M Paul
Anthony v Bharat Gold Mines Ltd2. The High Court adverted to the
following principle of law laid down in the above judgment:
         “...While in the departmental proceedings the standard of proof is
         one of preponderance of the probabilities, in a criminal case, the
                                                                                   G
         charge has to be proved by the prosecution beyond reasonable
         doubts. The little exception may be where the departmental
         proceedings and the criminal case are based on the same set of


2
    (1999) 3 SCC 679                                                               H
592             SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A            facts and the evidence in both the proceedings is common without
             there being a variance.”
              13. 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 place from the weapon
B     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
C     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 of the Division Bench of the High
      Court is unsustainable.
             14. For the above reasons, we allow the appeal and set aside the
D     impugned judgment and order of the Division Bench of the High Court
      dated 14 December 2007. In consequence, we maintain the judgment
      of the learned Single Judge dismissing the writ petition filed by the first
      respondent under Article 226 of the Constitution. There shall be no order
      as to costs.
E
      Kalpana K. Tripathy                                          Appeal allowed.




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