# THE STATE OF RAJASTHAN & ORS v. HEEM SINGH

- **Citation:** [2020] 13 S.C.R. 951
- **Court:** Supreme Court of India
- **Decided:** 2020-10-29
- **Case number:** Civil Appeal No. 3340 of 2020
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-rajasthan-ors-v-heem-singh-34382
- **Pages:** 36

## Headnote

Service Law - Dismissal from service after a disciplinary
enquiry - The respondent was appointed as a constable in the State
police service - It was alleged that the respondent overstayed leave
by a period of 3 days beyond the leave sanctioned - Few days
thereafter, he was arrested for the offence of murder u/s.302 IPC -
It was alleged that there was a dispute over land between the
respondent and victim-deceased - Also, the respondent's father was
bitten by snake and he was treated by the victim using witchcraft,
which did not yield result, leading to the death of respondent's father
- According to the prosecution, the respondent bore a grudge towards
the victim due to this incident and had proclaimed to kill him -
Victim's death was caused by an accident with an unknown vehicle
- The Trial Court found that the deceased had intimated at the police
station a threat to his life from the respondent few years before the
incident - A succession of prosecution witnesses were declared hostile
(PWs 3, 4, 5,17, 18, 19, 20, 22, 23 and 34) and the Court found it
unsafe to rely upon the evidence of PW-1 based on inconsistencies
in his evidence - The respondent was given the benefit of doubt
and was acquitted - However, in disciplinary proceedings under
the Rajasthan Civil Services (Classification, Control and Appeal)
Rules 1958, the enquiry officer found charges of misconduct proved
that the respondent as a member of the police force had committed
an act of murder while on leave - Consequently, he was dismissed
from service - The appeal and review filed by the respondent were
dismissed - The writ petition filed by the respondent was also rejected
by the Single Judge of the High Court - However, the Division
Bench of the High Court reversed the judgment of the Single Judge
and directed reinstatement of the respondent in service with
consequential benefits but without back-wages - On appeal, held:
The standard of proof in disciplinary proceeding is different from
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that of criminal trial - While the standard of proof in criminal case
is a proof beyond all reasonable doubt, the proof in a departmental
proceeding is a preponderance of probabilities - In the instant case,
the respondent and his parked tractor were seen proximate in time
and in terms of the location where victim's dead body was found by
both PW1 and PW3 - The respondent was found to be together with
one of the co-accused proximate in time - These circumstances are
coupled with respondent's movements at and around the time of the
murder, commencing with but not confined to his being at the village
on leave for 2 days coinciding with the murder - This may not be
sufficient to sustain a conviction on a charge of murder in the session
trial - But, the State had sufficient material to conclude that the
connection of respondent to the incident would affect the reputation
of its police force - The reinstatement of such an employee back in
service will erode the credibility of and public confidence in the
image of the police force - Therefore, the direction of the Division
Bench for reinstatement set aside.
In judicial review over disciplinary matters - Held: Two ends
of spectrum - First is a rule of restraint founded on deference to the
position of the disciplinary authority as a fact finding authority
and autonomy of the employer in maintaining discipline and
efficiency of the service - At the other end of the spectrum is the
principle that the court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or when they
suffer from perversity - A failure to consider vital evidence is an
incident of what the law regards as a perverse determination of
fact - Service jurisprudence has recognized the authority of the
court to interfere when the finding or the penalty are disproportionate
to the weight of the evidence or misconduct.
Allowing the appeal, the Court
HELD: Evidence in the disciplinary

## Text

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[2020] 13 S.C.R. 951
951
THE STATE OF RAJASTHAN & ORS.
v.
HEEM SINGH
(Civil Appeal No. 3340 of 2020)
OCTOBER 29, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Service Law - Dismissal from service after a disciplinary
enquiry - The respondent was appointed as a constable in the State
police service - It was alleged that the respondent overstayed leave
by a period of 3 days beyond the leave sanctioned - Few days
thereafter, he was arrested for the offence of murder u/s.302 IPC -
It was alleged that there was a dispute over land between the
respondent and victim-deceased - Also, the respondent's father was
bitten by snake and he was treated by the victim using witchcraft,
which did not yield result, leading to the death of respondent's father
- According to the prosecution, the respondent bore a grudge towards
the victim due to this incident and had proclaimed to kill him -
Victim's death was caused by an accident with an unknown vehicle
- The Trial Court found that the deceased had intimated at the police
station a threat to his life from the respondent few years before the
incident - A succession of prosecution witnesses were declared hostile
(PWs 3, 4, 5,17, 18, 19, 20, 22, 23 and 34) and the Court found it
unsafe to rely upon the evidence of PW-1 based on inconsistencies
in his evidence - The respondent was given the benefit of doubt
and was acquitted - However, in disciplinary proceedings under
the Rajasthan Civil Services (Classification, Control and Appeal)
Rules 1958, the enquiry officer found charges of misconduct proved
that the respondent as a member of the police force had committed
an act of murder while on leave - Consequently, he was dismissed
from service - The appeal and review filed by the respondent were
dismissed - The writ petition filed by the respondent was also rejected
by the Single Judge of the High Court - However, the Division
Bench of the High Court reversed the judgment of the Single Judge
and directed reinstatement of the respondent in service with
consequential benefits but without back-wages - On appeal, held:
The standard of proof in disciplinary proceeding is different from
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that of criminal trial - While the standard of proof in criminal case
is a proof beyond all reasonable doubt, the proof in a departmental
proceeding is a preponderance of probabilities - In the instant case,
the respondent and his parked tractor were seen proximate in time
and in terms of the location where victim's dead body was found by
both PW1 and PW3 - The respondent was found to be together with
one of the co-accused proximate in time - These circumstances are
coupled with respondent's movements at and around the time of the
murder, commencing with but not confined to his being at the village
on leave for 2 days coinciding with the murder - This may not be
sufficient to sustain a conviction on a charge of murder in the session
trial - But, the State had sufficient material to conclude that the
connection of respondent to the incident would affect the reputation
of its police force - The reinstatement of such an employee back in
service will erode the credibility of and public confidence in the
image of the police force - Therefore, the direction of the Division
Bench for reinstatement set aside.
In judicial review over disciplinary matters - Held: Two ends
of spectrum - First is a rule of restraint founded on deference to the
position of the disciplinary authority as a fact finding authority
and autonomy of the employer in maintaining discipline and
efficiency of the service - At the other end of the spectrum is the
principle that the court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or when they
suffer from perversity - A failure to consider vital evidence is an
incident of what the law regards as a perverse determination of
fact - Service jurisprudence has recognized the authority of the
court to interfere when the finding or the penalty are disproportionate
to the weight of the evidence or misconduct.
Allowing the appeal, the Court
HELD: Evidence in the disciplinary enquiry
1. A complete review of the evidence indicates there was a
pre-existing hostility between the respondent and the victimdeceased. This hostility initially arose in the context of a land
dispute. The hostility between them escalated exponentially after
the death of the respondent's father for which he blamed victim.
It evidently rose to an extent where the respondent openly issued
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a death threat to victim, leading victim to file a police complaint
against the respondent apprehending a threat from the
respondent to his safety. As regards the incident leading to the
death of victim, the respondent and his parked tractor were seen
proximate in time and in terms of the location where victim's
dead body was found by both PW1 and PW3. The respondent was
found to be together with one of the co-accused proximate in
time. These circumstances are coupled with respondent's
movements at and around the time of the murder, commencing
with but not confined to his being at the village on leave for two
days coinciding with the murder. This may not have been sufficient
to sustain a conviction on a charge of murder in the sessions
trial. But the State had sufficient material to conclude that the
connection of the respondent to the incident would affect the
reputation of its police force and that the presence of the
respondent as a member of the force was not in the interest of
public administration. Whether on the basis of the evidence, the
respondent could have been implicated in the conspiracy to
commit murder of victim is one aspect of the matter. Evidently
direct evidence to sustain a charge of conspiracy is difficult to
come by even in the course of a criminal trial. Quite independent
of this is the issue whether the connection of the respondent
with the circumstances leading to the death of victim affected his
ability to continue in the State police force without affecting its
integrity and reputation. The latter aspect is the one on which
the judgment of the Division Bench is found to be deficient in its
reasoning. [Para 28][979-E-H; 980-A-C]
Judicial review over disciplinary matters
2. In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This
is for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The judge does not assume the mantle of
the disciplinary authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
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is responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of natural justice.
But they are not governed by strict rules of evidence which apply
to judicial proceedings. The standard of proof is hence not the
strict standard which governs a criminal trial, of proof beyond
reasonable doubt, but a civil standard governed by a
preponderance of probabilities. Within the rule of preponderance,
there are varying approaches based on context and subject. The
first end of the spectrum is founded on deference and autonomy
- deference to the position of the disciplinary authority as a fact
finding authority and autonomy of the employer in maintaining
discipline and efficiency of the service. At the other end of the
spectrum is the principle that the court has the jurisdiction to
interfere when the findings in the enquiry are based on no
evidence or when they suffer from perversity. A failure to consider
vital evidence is an incident of what the law regards as a perverse
determination of fact. Proportionality is an entrenched feature of
our jurisprudence. Service jurisprudence has recognized it for
long years in allowing for the authority of the court to interfere
when the finding or the penalty are disproportionate to the weight
of the evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they exercise
judicial review. To determine whether the finding in a disciplinary
enquiry is based on some evidence an initial or threshold level of
scrutiny is undertaken. That is to satisfy the conscience of the
court that there is some evidence to support the charge of
misconduct and to guard against perversity. But this does not
allow the court to re-appreciate evidentiary findings in a
disciplinary enquiry or to substitute a view which appears to the
judge to be more appropriate. To do so would offend the first
principle which has been outlined above. The ultimate guide is
the exercise of robust common sense without which the judges'
craft is in vain. [Para 33][982-G-H; 983-A-G]
The effect of an acquittal
3. In the present case, the respondent was acquitted of the
charge of murder. The circumstances in which the trial led to an
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acquittal have been elucidated in detail above. The verdict of the
criminal trial did not conclude the disciplinary enquiry. The
disciplinary enquiry was not governed by proof beyond reasonable
doubt or by the rules of evidence which governed the criminal
trial. True, even on the more relaxed standard which governs a
disciplinary enquiry, evidence of the involvement of the
respondent in a conspiracy involving the death of victim would
be difficult to prove. But there are circumstances emerging from
the record of the disciplinary proceedings which bring legitimacy
to the contention of the State that to reinstate such an employee
back in service will erode the credibility of and public confidence
in the image of the police force. [Para 35][986-C-E]
M. Siddiq v. Suresh Das (2020) 1 SCC 1 - followed.
Suresh Pathrella v. Oriental Bank of Commerce (2006)
10 SCC 572 : [2006] 7 Suppl. SCR 564; Samar
Bahadur Singh v. State of U.P. (2011) 9 SCC 94 : [2011]
11 SCR 136; P. John Chandy and Co. (P) Ltd. v. John
P. Thomas (2002) 5 SCC 90 : [2002] 3 SCR 549; Moni
Shankar v. Union of India (2008) 3 SCC 484; Southern
Railway Officers Association v. Union of India (2009)
9 SCC 24 : [2009] 12 SCR 429; Inspector General of
Police v. S. Samuthiram (2013) 1 SCC 598 : [2012] 11
SCR 174 - relied on.
Case Law Reference
[2006] 7 Suppl. SCR 564
relied on
Para 13
[2011] 11 SCR 136
relied on
Para 13
(2020) 1 SCC 1
followed
Para 29
(2008) 3 SCC 484
relied on
Para 30
[2002] 3 SCR 549
relied on
Para 32
[2009] 12 SCR 429
relied on
Para 34
[2012] 11 SCR 174
relied on
Para 34
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3340
of 2020.
From the Judgment and Order dated 24.04.2019 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Special Appeal (Writ)
No. 577 of 2018.
Ashish Kumar, AAG, Milind Kumar Adv. for the Appellants.
Jasmeet Singh, Saif Ali, Pushpendra S. Bhadoriya, Ms. Rusheet
Saluja, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A The appeal
B Murder, trial and disciplinary enquiry
C Submissions of counsel
D Proof of misconduct in disciplinary proceedings
E
Findings of the disciplinary enquiry
F
The judgment of the Division Bench
G Evidence in the disciplinary enquiry
H On a 'preponderance of probabilities'
I
Judicial review over disciplinary matters
J
The effect of an acquittal
K Conclusion
A The appeal
1. This appeal is from a judgment dated 24 April 2019 of a Division
Bench of the High Court of Judicature for Rajasthan at Jodhpur. The
respondent, who was a police constable, filed a petition under Article
226 of the Constitution to challenge his dismissal from service after a
disciplinary enquiry. A Single Judge of the High Court, by a judgment
dated 1 February 2018, dismissed the petition. The Division Bench
reversed the judgment and concluded that there is no evidence in the
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disciplinary enquiry to sustain the finding that the respondent committed
a murder while on leave from duty. Independently, he has also been
acquitted in a Sessions trial on the charge of murder. The Division Bench
granted the respondent reinstatement in service with no back wages for
the seventeen years that elapsed since his termination. The State comes
in appeal.
B Murder, trial and disciplinary enquiry
2. In 1992, the respondent was appointed as a Constable in the
police service of Rajasthan. On 13 August 2002, he proceeded on leave
and had to report back on duty on 16 August 2002. He failed to do so
and eventually reported for work on 19 August 2020. He sought and
was granted permission for over-staying his leave on the ground that his
brother-in-law, Shankar Singh had died. On 15 August 2002, one Daulat
Singh lodged a written complaint at Police Station, Khamnaur in relation
to the death of his brother Bhanwar Singh, caused by an accident with
an unknown vehicle. The police initially registered a crime under Sections
209 and 304A of the Indian Penal Code1. The statements of Daulat
Singh, Jodh Singh, Meera and Hamer Singh were recorded under Section
161 of the Code of Criminal Procedure 19732. It appeared during the
course of the investigation that the death was homicidal. The investigation
by the police proceeded for an offence punishable under the provisions
of Section 302 of the IPC. The respondent was arrested on 9 September
2002. There were two co-accused, Lokesh Gurva and Iqbal Khan. After
the investigation was completed, a charge-sheet was filed under Sections
302, 201 and 120B. Sessions Case 3 of 2003 was committed for trial to
the court of the Additional Sessions Judge, Nathdwara.
3. The case of the prosecution was that there was a dispute over
land between the respondent and Bhanwar Singh. Moreover, the
respondent's father had been treated for a snake bite by Bhanwar Singh
but his witchcraft did not yield result, leading to the death of the father.
According to the prosecution, the respondent bore a grudge towards the
deceased due to this incident and had proclaimed earlier that he would
kill him.
4. During the pendency of the criminal trial, a memorandum was
issued on 18 January 2003 to the respondent, followed by a charge1 "IPC"
2 "CrPC"
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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sheet, convening disciplinary proceedings under the provisions of Rule
16 of the Rajasthan Civil Services (Classification, Control and Appeal)
Rules 19583. The imputations against the respondent are extracted below,
together with the familiar errors of grammar and translation:
"1. That you on 13.08.02 from Station House Officer, P.S. Devgarh
got one casual leave and one gazette leave sanctioned and left for
your home, as per which you have to attend duty on 16.08.02 at
A.M. but you did not attend the duty on time and attended the
duty on 19.08.02 after remaining absent for 3 days, which is proved
from record.
2. That even during the absence period you did not inform any
officer about the reason of your absence and also not submitted
any extension, which is proved from record.
3. That you at your residence on 15.08.02 during leave Shri
Bhanwar Singh S/o Chandan Singh Rajput R/o Ravo ki Gudli,
who was working in PWD Department, Nathdwara and was going
on his duty and because of dispute regarding land between you
and Bhanwar Singh you with help of Lokesh, Iqbal to kill Bhanwar
Singh hit him with jeep at Bheel Basti Kunthwa, due to which he
fell down and while shouting your companion Iqbal brought iron
rod from jeep and hit on forehead of Bhanwar Singh due to which
he died on the spot. You are an employee of disciplined department
and have knowledge of law, you have committed such a grievous
offence, due to which image of police is blurred among public,
which is proved from record.
4. That you after committing murder of Bhanwar Singh, you and
your companion ran away from the spot and having knowledge of
law gave form of an accident to the murder, which is proved from
records and initial inquiry.
5. That you after the said incident by joining duty 19.08.02 at
police station Devgarh while hiding reality and by telling reason of
absence as accident of Bhanwar Singh you get sanctioned period
3 leaves from the SHO as casual leaves where you had committed
murder. Thus, you have knowingly mislead your superior officer,
which is proved from the initial inquiry and record .
3 "the Rules"
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6. That you are an employee of disciplined department, has full
knowledge of law and despite of having knowledge of law you
committed a heinous crime, which seriously hurt the image of
police department among general public and your said act has
blurred the image of police among public. Your said act comes
under category of 'savior only eater', which is proved from the
initial inquiry and record."
5. By a judgment dated 8 October 2003, the Additional Sessions
Judge acquitted the respondent and the two co-accused, giving them the
benefit of doubt. The Additional Sessions Judge observed that PW1
Meera and PW2 Poorna Devi, the daughters of the deceased, were not
present at the scene of offence and their evidence was hearsay. A
succession of witnesses - PW3 Jai Singh, PW4 Babudas, PW5 Sundarlal,
PW17 Jagat Singh, PW18 Kishan Singh, PW19 Banshi Lal, PW20
Shankar Singh, PW22 Devi Singh, PW23 Kaisar Singh and PW34 Pratap
Singh - were declared hostile during the course of the trial. The case
turned on the evidence of PW21 Jodh Singh, the alleged eye-witness.
The Additional Sessions Judge found that on 7 September 2000, about 2
years prior to the incident, the deceased had intimated the SHO at
Khamnaur P.S. recording a threat to his life inter alia from the respondent.
The SHO registered a report under Section 107 of the CrPC and
conducted proceedings. Although finding prima facie that there was
enmity between the respondent and the deceased, the Additional Sessions
Judge declined to accept the evidence of PW21. While evaluating it in
the context of the co-accused, Lokesh, the Additional Sessions Judge
noted:
"Thus, this evidence is prima facie ... that accused Heem Singh
has enmity with deceased Bhanwar Singh. Whether due to this
enmity Heem Singh by conspiring with co-accused persons by
telling accident by jeep with aid of co-accused Iqbal committed
murder of Bhanwar Singh, on this point the observation of this
Court is that accused Lokesh Gaurva who was told as jeep driver
by the witness Jodh Singh at the time of incident, against that
Lokesh Gaurva by involving with Heem Singh at the time of
incident hitting Bhanwar Singh by jeep such evidence is not given
by PW-21 Jodh Singh. Additional Public Prosecutor on this
point during cross-examination has not taken on record by
seeking any clarification or declaring PW-21 as hostile. Thus,
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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there is no evidence on record for conviction of accused Lokesh
Gaurva under Sections 302, 201, 120B IPC read with Section 34
IPC."
 (emphasis supplied)
The above extract indicates that the Public prosecutor did not
have PW21 declared hostile, though this should have been ordinarily, the
correct course of action. The Additional Sessions Judge declined to
believe the testimony of PW21 insofar as the respondent and co-accused
Iqbal were concerned, finding that the witness was inconsistent and
untrustworthy. The respondent was given the benefit of doubt and was
acquitted.
6. The disciplinary enquiry on the charge of murder proceeded
with much the same evidence. Jodh Singh was the star witness during
the disciplinary proceedings. During the course of the disciplinary enquiry,
the enquiry officer recorded the statements of PW1 Jodh Singh, PW2
Devi Singh, PW3 Shankar Singh and PW4 Hamer Singh among several
witnesses. The disciplinary enquiry led to the submission of the enquiry
report. The enquiry officer found the charges to be proved. The findings
on each of the charges are extracted below:
"CHARGE NO.1
Said constable on 13.08.02 from Station House Officer, P.S.
Devgarh get on one casual leave and one gazette leave sanctioned
and left for his home who has not attended the duty on time and
attended the duty after 3 days, which is proved from the statements
of Shri Bhanwar Singh, S.I. SHO Devgarh, Shri Bhanwar Singh
Const. No.351, Shri Rajesh Kumar, Const. No. 563 & Shri
Munishwar Mishra, Ka.Ii. and from copy of GD Report. Thus, I
found the said charge as completely proved.
CHARGE NO.2
The Constable during the absence period did not inform any officer
about the reason of his absence and also not submitted any
extension, which is proved from records and statements of Shri
Muniswar Mishra, Ka. Li. Force Branch, Shri Bhanwar Singh
S.I. SHO Devgarh. Thus, I found the said charge as completely
proved.
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CHARGE NO.3
The said constable at his residence on 15.08.02 during leave Shri
Bhanwar Singh S/o Chandan Singh Rajput R/o Ravo ki Gudli,
who was working in PWD Department, Nathdwara and was going
on his duty and because of dispute regarding land between him
and Bhanwar Singh, he with help of Lokesh, Iqbal to kill Bhanwar
Singh hit him with jeep at Bheel Basti Kunthwa, due to which he
fell down and while shouting his companion Iqbal brought iron rod
from jeep and hit on forehead of Bhanwar Singh due to which he
died on the spot. Thus, being an employee of disciplined department
and having knowledge of law, he has committed such a grievous
offence due to which image of police is blurred among public.
In respect of said charge the prosecution has produced statements
of Jodh Singh PW-1, Devi Singh PW-2, Shankar Singh PW-3,
Hamer Singh PW-4, out of which Jodh Singh PW-1 in his statement
at the time of incident has proved presence of himself, charged
constable and tractor at the place of incident. Similarly, witness
Shankar Singh PW-3 stated that he saw half an hour ago to the
incident, the charged constable roaming near place of incident
and his parked tractor. Similarly, witness Shri Hamer Singh PW-4
stated that there is prior enmity between charged constable and
deceased Bhanwar Singh and prior to the death of father of
charged constable, stating through witness to Bhanwar Singh that
I will kill him by hitting with jeep or tractor and the incident of
same kind is committed. Similarly, witness Shri Nanalal SHO
Khamnaur PW-9 also in his statement against the charged constable
on finding offence verified arresting him and seizure of iron rod,
jeep & tractor used in the incident. Thus, from the aforesaid
analysis the said charge is found as completely proved.
The charged constable in defense of said charge has produced a
copy of order passed by the Hon'ble Additional Sessions Judge
Nathdwara in case related to said incident, after perusal of which
it is found that the Hon'ble Court has not completely acquitted the
said constable rather acquitted by giving him the benefit of doubt.
From this it is clear that the Hon'ble Court has not acquitted
charged constable in free form. Thus, I found said charge as
completely proved due to which the image of police has blurred.
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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CHARGE NO.4
It is the charge against constable that he after committing murder
of Bhanwar Singh, along with his companions ran away from the
spot and having knowledge of law gave form of an accident to
the murder.
PW-1 Jodh Singh, PVV-3 Shankar Singh, PW-4 Hamer Singh,
PW-9 Nanalal has confirmed the aforesaid charge. Thus, said
charge is completely proved from the enquiry.
CHARGE NO.5
It is the charge against constable that he while joining duty on
19.08.02 at police station Devgarh by hiding reality and by telling
reason of absence as accident of Bhanwar Singh he got sanctioned
period of 3 leaves from the SHO as casual leaves.
Said charge is proved from the statements of witnesses PW-7
Shri Rajesh Kumar, PW-6 Bhanwar Singh S.I. and aamad report
Ext. P-8 written by charged constable. Thus, I found the said
charge as completely proved.
CHARGE NO.6
It is the charge against constable that he being an employee of
disciplined department, has full knowledge of law and despite of
having knowledge of law he has committed a heinous crime, which
seriously hurt the image of police department among general public.
Since, from the enquiry the Charge No. 1 to 5 are completely
proved. Thus, the said charge automatically gets completely
proved."
7. The disciplinary authority issued a notice to show cause to the
respondent on 23 October 2003, to which he submitted a response on 17
November 2003. On 11 December 2003, the District Superintendent of
Police came to the conclusion that though the respondent had been given
the benefit of doubt in the criminal trial, the charges against him stood
established. He was dismissed from service. The appeal preferred by
the respondent was dismissed by the Inspector General of Police on 17
June 2005. A review before the State Government was dismissed on 29
August 2008. This led to the institution of writ proceedings before the
High Court. A learned Single Judge of the High Court, by a judgment
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dated 1 February 2018, rejected the Writ Petition. In appeal, the judgment
of the Single Judge was reversed by the Division Bench on 24 April
2019. By its judgment, the Division Bench directed re-instatement of the
respondent in service with consequential benefits but without back-wages.
C Submissions of counsel
8.
Mr Ashish Kumar, AAG appearing on behalf of the appellants
submits that:
(i)
In a disciplinary enquiry involving a charge of misconduct,
the test is whether the charge is established on a
'preponderance of probabilities' unlike in a criminal trial where
the prosecution has to establish their case 'beyond reasonable
doubt';
(ii)
While exercising judicial review under Article 226 of the
Constitution against the findings in a disciplinary enquiry the
court cannot reappreciate the evidence in the manner of an
appellate court, and so long as the finding of misconduct is
based on some evidence, no interference is warranted;
(iii) The High Court has failed to ascribe adequate weight to the
orders in the disciplinary proceedings: the order dated
11 December 2003 pursuant to departmental proceedings;
the order dated 17 June 2005 of the Inspector General of
Police exercising appellate powers; and the order dated 29
August 2008 in review proceedings passed by the Home
Department; and
(iv) The evidence in the disciplinary enquiry indicates that:
(a) There was enmity between the deceased and the respondent
arising out of a dispute over land;
(b) The co-accused was found at the scene of offence;
(c) The deceased had a couple of years prior to the incident,
lodged a complaint with the police apprehending danger from
the respondent;
(d) The evidence of PW1 Jodh Singh and PW3 Shanker Singh
showed the presence of the respondent in the vicinity; and
(e) The judgment in the criminal trial, acquitting the respondent
of the offence of murder, did not constitute a clean acquittal
but was founded on the benefit of doubt.
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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9. On the above grounds, it was urged that the High Court has
transgressed the limitations on its power of judicial review in allowing
the appeal, setting aside the judgment of the Single Judge and in interfering
with the disciplinary penalty imposed by the appellants.
10. On the other hand, Mr Jasmeet Singh, learned Counsel
appearing on behalf of the respondent submitted that:
(i)
The departmental enquiry was concluded in violation of the
rules governing the enquiry. All the orders in the disciplinary
enquiry were based on the examination-in-chief of an alleged
eye-witness, PW1 Jodh Singh, while ignoring that his deposition
was completely demolished in the course of the crossexamination;
(ii) In the course of the cross-examination, PW1 Jodh Singh
admitted that he had named the respondent only under the
pressure of the Sarpanch. The disciplinary authority as well
as the appellate and reviewing authorities ignored vital
evidence, and consequently their findings were perverse;
(iii) Since the alleged crime took place outside the scope of service,
it was incumbent upon the department to place reliance on
the entire record of the Sessions trial in which the respondent
was acquitted. The departmental enquiry is based on a selective
examination of the records of the Sessions Court;
(iv) The entire evidence on record would demonstrate that the
respondent was not even remotely connected with the murder
of Bhanwar Singh; and
(v) There is a "minor charge" against the respondent of availing
of three days extra casual leave without informing the superior
officer. On this charge, it has been submitted that:
(a)
The grant of additional casual leave was approved upon
his joining duties by the superior officer and the charge
was duly modified to state that the approval was taken
by misrepresenting facts; the respondent was alleged to
have concealed his involvement in the crime of murder;
(b)
If the charge of being involved in the murder is not
established, this charge will cease to exist; and
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(c)
Even assuming, without conceding, that the respondent
was guilty of taking casual leave without informing the
superior, he was never guilty of such conduct in the past
and the leave was taken because of the death of his
brother-in-law.
11. On the basis of the above submissions, it has been urged that
the findings in the departmental enquiry were perverse and have been
correctly set aside by the Division Bench of the High Court. The
respondent has been out of service for 17 years and has (it has been
urged) had to combat the social stigma of being terminated from service.
The High Court having since re-instated the respondent without backwages, it was urged that no interference by this Court is warranted.
D Proof of misconduct in disciplinary proceedings
12. The primary charge in the disciplinary proceedings relates to
the involvement of the respondent in the murder of Bhanwar Singh.
According the respondent, the disciplinary enquiry pertains to an event
which took place outside the fold of his service. It was asserted that the
disciplinary enquiry in regard to the involvement of the respondent in a
murder bore no nexus to his employment. This submission cannot stand
scrutiny, having regard to the nature of the employment and the position
of the respondent as member of the police force. The respondent was a
constable in the service of the police department of the State of Rajasthan
since 1992. Involvement of a member of the police service in a heinous
crime (if it is established) has a direct bearing on the confidence of
society in the police and in this case, on his ability to serve as a member
of the force. Such an individual is engaged by the State as a part of the
machinery designed to preserve law and order. The State can legitimately
assert that it is entitled to proceed against an employee in the position of
the respondent in the exercise of its disciplinary jurisdiction, for a breach
of the standard of conduct which is expected of a member of the state
police service. Confidence of the State in the conduct and behaviour of
persons it has appointed to the police is integral to its duty to maintain
law and order. The real issue is whether the charge of misconduct stands
established in this case on the basis of some evidence, applying the
evidentiary principle of a preponderance of probabilities.
13. The standard of standard of proof in disciplinary proceedings
is different from that in a criminal trial. In Suresh Pathrella v. Oriental
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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Bank of Commerce4, a two judge Bench of this Court differentiated
between the standard of proof in disciplinary proceedings and criminal
trials in the following terms:
" ...the yardstick and standard of proof in a criminal case is
different from the disciplinary proceeding. While the standard of
proof in a criminal case is a proof beyond all reasonable doubt,
the proof in a departmental proceeding is preponderance of
probabilities." This standard is reiterated by another two-Judge
Bench of this Court in Samar Bahadur Singh v. State of U.P.5:
"Acquittal in the criminal case shall have no bearing or relevance
to the facts of the departmental proceedings as the standard of
proof in both the cases are totally different. In a criminal case, the
prosecution has to prove the criminal case beyond all reasonable
doubt whereas in a departmental proceedings, the department has
to prove only preponderance of probabilities."
E Findings of the disciplinary enquiry
14. On 13 August 2002, while posted at Police Station Devgarh,
the respondent took a day's casual leave and one 'gazetted leave' and
was to report back on 16 August 2002. It is admitted that he over-stayed
his leave and joined on 19 August 2002. According to the respondent,
the additional leave was sanctioned after he joined back on duty. The
State as his employer claims that the respondent concealed the intervening
circumstance of his involvement in the murder of Bhanwar Singh on
15 August 2002. Now it is important to note that the respondent was
placed under arrest on 16 September 2002 much after he had rejoined
duty and was released on bail on 30 October 2002. Since the arrest took
place after he rejoined duties, it cannot be said that there was a suppression
by him of his custodial detention when he joined duties on 19 August
2002. In any case, this part of the charges is subsidiary to the main
charge in the disciplinary proceedings. In the departmental proceedings,
broadly speaking, the charges that were leveled against the respondent
were:
(i)
Over-staying leave by a period of three days beyond the
leave that was sanctioned;
4 (2006) 10 SCC 572
5 (2011) 9 SCC 94
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(ii)
Not seeking an extension of leave from the superior officer;
(iii) Involvement in the murder of Bhanwar Singh (the respondent
is alleged to have run away from the scene of offence and
tried to give it the colour of an accident);
(iv) Getting additional leave sanctioned by suppressing the correct
reason on a misrepresentation to the superior officer; and
(v)
Conduct which has hurt the image of the police department.
15. The respondent was tried for the offence of murder and was
acquitted by the Sessions Court on 8 October 2003. During the course
of the criminal trial a succession of prosecution witnesses were declared
hostile (PWs 3, 4, 5, 17, 18, 19, 20, 22, 23 34). The Additional Sessions
Judge found it unsafe to rely upon the evidence of the sole eye-witness,
Jodh Singh (PW21 at the Sessions Trial) based on the inconsistencies in
his evidence. In fact, the trial judge even observed that no steps had
been taken by the Public prosecutor to have him declared hostile. The
acquittal of the respondent on the charge of murder was based on the
now familiar spectacle of prosecution witnesses turning hostile. It is true
that the acquittal brought finality to the question as to whether he had
committed the offence of murder punishable under the Penal Code.
However, the disciplinary enquiry stood on a broader footing. The
disciplinary proceedings related not merely to the involvement of the
respondent in the murder, but to the violation of service rules and the
impact of his conduct on the image of the police force.
16. On the primary charge of the involvement of the respondent
in the murder of Bhanwar Singh, Jodh Singh (PW1 in the Disciplinary
Enquiry) was the prime witness, as in the criminal trial. Jodh Singh was
an engine mechanic and stated in the course of his examination on 18
July 2003 that two or three years earlier, the respondent came to him
with an engine crane for repair together with Iqbal Khan (who was also
a co-accused at the Sessions trial). The witness stated that Iqbal Khan
had assaulted Bhanwar Singh with an iron rod when he was proceeding
on a cycle near Bheel Basti Nala. Further, he stated that on the same
day he had seen the respondent about 300 feet away from the scene of
offence going towards Nathdawara on a cycle. Also, about 300 feet
away from the scene of offence, he found the tractor of the respondent
parked. Jodh Singh claims to be an eye-witness to the murder of Bhanwar
Singh by Iqbal. In quite the same vein as he did during the criminal trial,
THE STATE OF RAJASTHAN & ORS. v. HEEM SINGH
[DR DHANANJAYA Y CHANDRACHUD, J.]
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during the course of his cross examination, Jodh Singh did not support
his statements during the examination in chief. For the completeness of
the record, it is necessary to extract the relevant part of the crossexamination which has been recorded in question and answer form in
the enquiry proceedings:
"Cross through Pairokar Heem Singh Const. No.642
1. Question - After 20 days of this incident Sarpanch Shri Pratap
Singh called at his house and told that you shall get written name
of Heem Singh and Lokesh also along with Iqbal, I refused then
Sarpanch Ji told that you have to get name of Heem Singh written
therefore, I told name of them in the statements given to police.
2. Is it correct that you saw Iqbal while killing Bhanwar Singh but
at that time Heem Singh was not present there at the time of
incident. Yes, It is true.
3. Is it correct that you did not know about giving of threats to kill
by Heem Singh to Bhanwar Singh. Yes, it is true.
4. Is it correct that on that day you are going to Gudla from
Kunthwa from road going from Nathdwara to Ghata Ghotiya and
Heem Singh met you while going on motorcycle from Kunthwa
to Nathdwara. The place where Heem Singh met, on moving 300
ft forward from there you saw Iqbal while killing Bhanwar Singh.
Yes, it is true.
5. Is it correct that from whom Heem Singh brought crane and
for whom, you did not know about that. Yes, it is true that I am not
aware about that.
6. Is it correct that no person with name Ram Singh lives a Gudli?
Yes, it is true, but in my statements about which Ram Singh I
mentioned, he is resident of Chundavte ka Guda, Kunthwa, whose
well is there where I repaired the crane.
7. Is it correct that after killing of Bhanwar Singh by Iqbal the
jeep which passed from there, which passed after crushing cycle
and Bhanwar Singh? Yes, it is true but Iqbal went after sitting in
that.
8. Is it correct that you did not recognize the driver of jeep, neither
saw number of jeep nor recognized jeep that it belongs to whom?
Yes, it is true."
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The disciplinary authority arrived at its findings on the charge of
misconduct observing thus:
"In respect of said charge the prosecution has produced statements
of Jodh Singh PW-1, Devi Singh WP-2, Shankar Singh PW-3,
Hamer Singh PW-4, out of which Jodh Singh PW-1 in his statement
at the time of incident has proved presence of himself, charged
constable and tractor at the place of incident.