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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal  No(s).6183 of 2010

Union of India and Ors                       Appellant(s)

Versus

Sitaram Mishra and Anr                      Respondent(s)

J U D G M E N T  

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  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.  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 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

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MM Carbine  (No.15356032,  Butt  no.13)  in  men  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, 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) 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

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

interfered with the judgment of the learned Single Judge on the ground 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.

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

that:

1 “IPC”

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(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 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

(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 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 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 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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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 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:

(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

(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  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  the  finding  is

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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 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.”

10. This 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 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 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 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 following obligation

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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.

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  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 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 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 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

2 (1999) 3 SCC 679

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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

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.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Indira Banerjee]

 New Delhi;  July 11, 2019

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ITEM NO.110               COURT NO.11               SECTION XVI

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).6183/2010

UNION OF INDIA AND ORS                       Appellant(s)

                               VERSUS

SITARAM MISHRA AND ANR                      Respondent(s)

Date : 11-07-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MS. JUSTICE INDIRA BANERJEE

For Appellant(s) Mr. S.S. Ray, Adv. Ms. Snidha Mehra, Adv. Mr. Chakitan Vikram Shekher Papta, Adv. Ms. Tanisha Samanta, Adv. Mr. B.V. Balramdas, Adv.

                    For Respondent(s) Mr. P. K. Jain, AOR

Mr. Saurabh Jain, Adv. Mr. P.K. Goswami, Adv.

                 Mr. Rameshwar Prasad Goyal, AOR                                           

UPON hearing the counsel the Court made the following                               O R D E R

The  appeal  is  allowed  in  terms  of  the  signed

reportable  judgment.   There  shall  be  no  order  as  to

costs.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)