Acquittal does not affect D.E.

Through the judgment of the case - Union of India and Others v. Sitaram Mishra and Another, delivered on July 11, 2019, Justice Dr D Y Chandrachud and Justice Indira Banerjee have made it abundantly clear that the fact that the first respondent – Sitaram Mishra 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.

In the Supreme Court’s view, the HC had drawn an erroneous inference from the Apex-Court’s decision in the case - Capt M Paul Anthony v. Bharat Gold Mines, Ltd. - (1999) 3 SCC 679. The HC drew support from this principle of law laid down in the said judgment as under:         

“…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 criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.”

According to the Supreme Court, 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 accused Mishra as a member of the 41st Battalion.

But the charge of misconduct was on the ground of the Mishra’s negligence 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.

The first respondent – Sitaram Mishra was enlisted as a constable in the CRPF on September 20, 1971. He was posted in the 41st Battallion 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 was alleged that on February 18, 1998 at about 9.45 am 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 FIR was lodged. Te Commandant initiated a disciplinary proceeding against the respondent-HC Mishra. After conducting a disciplinary inquiry, the Enquiry Officer submitted a report on March 12, 1999. The respondent-Mishra was held 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 Mishra were dismissed.

The respondent –Mishra was also tried for the offence under section304 of the IPC. He was acquitted by the JMFC, Agartala, Tripura West on January 5 , 2002.

The writ petition filed by the delinquent – Mishra to challenge his dismissal from service was dismissed by a Single Judge Bench of the High Court. However, in a writ appeal the division bench interfered with the judgment of the 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.

In the writ appeal, the HC division bench held that (i) The charge of misconduct was belied by the depositions of PW 5 and PW 6 during the course of the disciplinary inquiry 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 respondent-Mishra from the criminal case.

From the material on the record, the Supreme Court has pointed out certain facts not in dispute were:  (i) The first respondent-Mishra 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.

The disciplinary authority found that the charge of misconduct was sustainable on the basis of evidence on the record. The HC division bench reversed the judgment of the 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 HC was manifestly in error in re-appreciating the evidence which was adduced during the disciplinary enquiry. The issue, in the exercise of judicial review against the finding of misconduct in a disciplinary enquiry, is whether the finding is sustainable with reference to some evidence on the record.

It is well-settled that the HC can 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 about the circumstances in which the death of his colleague occurred.

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.

The HC erred in interfering with the findings of the disciplinary inquiry, particularly when a Single Judge had, in the course of his judgment, found no irregularity in the inquiry. The punishment of dismissal is not disproportionate to the misconduct proved.

The second ground, which weighed with the HC is equally specious. A disciplinary inquiry is governed by a different standard of proof than that which applies to a criminal case.

Having regard to the parameters that govern the exercise of judicial review in disciplinary matters, the Supreme Court has been of the view the  HC Division Bench’s judgment is unsustainable. The SC allowed the appeal and set aside the impugned judgment and order passed by the HC division bench. The Supreme Court maintained the judgment of the Single Judge who had dismissed the writ petition filed by the first respondent-Mishra.

 

R.S.Agrawal 
on 02 August 2019
Published in Others
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