whether the date of birth of accused is 21.04.1972 or 21.04.1974. Exh. P-3 is original Marksheet, in which, the date of birth of accused has been shown as 21.04.1972 and same has also been proved by the witnesses examined on behalf of the prosecution.
Whatever the documents have been produced before the Court regarding the date of birth of 21.04.1974 are either the letters of Principal or are Duplicate T.C. or Marksheets. Neither the prosecution has produced any such original documents in the Subordinate Court to this effect that when the admission form of accused was filled, what date of birth was mentioned by the accused in it, what was the date of birth in Roll Register of School, what date of birth was mentioned by accused in the Examination Form of Secondary, and nor after bringing the original records from the concerned witnesses, same were got proved in the evidence.
In these circumstances, this fact becomes doubtful that date of birth of accused was 21.04.1974, and accused is entitled to receive it’s benefit. In the considered opinion of this Court, the conviction made by the Ld. Subordinate Court merely on the basis of oral evidences and letters or duplicate documents, is not just and proper. It is justifiable to acquit the accused.
it is not the case of department that the appellant sought employment based on 10th standard marksheet. It is their positive case that the appellant sought employment on the basis of his 8th standard marksheet. Shravan Lal-PW-4 in the departmental enquiry had also furnished the 10th standard marksheet procured from the Secondary Education Board, Ajmer.
In cross-examination, on being asked, he admitted that the appellant was recruited on the basis of 8th standard marksheet, and he admitted that there was no alteration in the 8th standard marksheet. 30. In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and 25.06.2008 refusing to reconsider and review the penalty respectively, are all illegal and untenable.
When there is no alteration in the 8th standarad mark list -
The identical allegation in both the proceedings was that the Appellant altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th standard marksheet.
Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No.484/2011 dated 05.09.2018. We direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. As far as backwages are concerned, we are inclined to award the appellant 50% of the backwages. The directions be complied with within a period of four weeks from today.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7935 OF 2023
(Arising out of SLP (C) No. 33423 of 2018)
Ram Lal … Appellant (s)
Versus
State of Rajasthan & Ors. ...Respondent(s)
J U D G M E N T
K.V. Viswanathan, J.
1. Leave granted.
2. Ram Lal (the appellant) was a Constable with the
Rajasthan Armed Constabulary, 9th Battalion, Jodhpur. He
was appointed on 15.12.1991. A First Information Report
(F.I.R.) was registered on 02.09.2002 against him under
Sections 420, 467, 468 and 471 of the IPC. Soon thereafter,
1
on 02.04.2003, a chargesheet in a departmental enquiry was
also issued.
3. The identical allegation in both the proceedings was
that the Appellant altered his date of birth from 21.04.1974 to
21.04.1972 in his 8th standard marksheet. It was alleged that
this was done to project himself as having attained majority
at the time of the recruitment. The appellant denied the
charges.
4. Asked about the overwriting in the application, the
appellant stated that it was possible that in the application
form he might have written initially as 21.04.1974 and
thereafter corrected it to 21.04.1972. He however maintained
that his date of birth was 21.04.1972.
5. Five witnesses were examined in the departmental
proceeding. These very five witnesses were also examined in
the criminal trial, apart from eight other witnesses who were
also examined at the criminal trial. The Enquiry Officer in
the departmental proceeding found the charges proved and
2
the Disciplinary Authority, by an order of 31.03.2004,
dismissed the appellant from service. The Appellate
Authority also dismissed the appeal. Attempts to have the
order reviewed and the penalty reconsidered were also in
vain.
6. At the criminal trial, the trial Court convicted the
appellant for the offence under Section 420 of the IPC and
sentenced him to undergo three years’ imprisonment alongwith a fine of Rs.5,000/-. However, the Additional District
and Sessions Judge, Jodhpur [‘Appellate Judge’], vide
judgment dated 24.08.2007, allowed the criminal appeal and
acquitted the appellant.
7. The appellant, thereafter, represented for his
reinstatement. Subsequently, he filed a writ petition in
August, 2008 for quashing the dismissal order dated
31.03.2004, the order of the Appellate Authority, and the
orders refusing to review and reconsider the above-said
orders.
3
8. The learned Single Judge, by his judgment dated
13.08.2008, dismissed the writ petition by holding that the
standard of proof in a criminal proceeding and departmental
proceeding is different. The learned Single Judge found no
infirmity in the order of the Disciplinary Authority. The writ
appeal filed by the appellant has also been dismissed by
reiterating the findings of the learned Single Judge and by
further elucidating as to how the parameters for a judicial
review against an order in a departmental proceeding are
limited and circumscribed. Being aggrieved, the appellant is
in appeal before us.
Questions for consideration:
9. The following two questions arise for consideration:
a) Whether the dismissal of the appellant from service
pursuant to the departmental enquiry was justified?
b) On the facts of the case, what is the effect of the
acquittal, ordered by the Appellate Judge in the
4
criminal trial, on the order of dismissal passed in the
departmental enquiry?
10. We have heard Mr. Adarsh Priyadarshi, learned counsel
for the appellant and Mr. Vishal Meghwal, learned counsel
for the State. Learned counsels have reiterated their
contentions before the Courts below.
Legal Position:
11. We have examined both the questions independently.
We are conscious of the fact that a writ court’s power to
review the order of the Disciplinary Authority is very limited.
The scope of enquiry is only to examine whether the
decision-making process is legitimate. [See State Bank of
India vs. A.G.D. Reddy, 2023:INSC:766 = 2023 (11) Scale
530]. As part of that exercise, the courts exercising power of
judicial review are entitled to consider whether the findings
of the Disciplinary Authority have ignored material evidence
and if it so finds, courts are not powerless to interfere. [See
5
United Bank of India vs. Biswanath Bhattacharjee,
2022:INSC:117 = (2022) 13 SCC 329]
12. We are also conscious of the fact that mere acquittal by
a criminal court will not confer on the employee a right to
claim any benefit, including reinstatement. (See Deputy
Inspector General of Police and Another v. S. Samuthiram,
(2013) 1 SCC 598).
13. However, if the charges in the departmental enquiry and
the criminal court are identical or similar, and if the evidence,
witnesses and circumstances are one and the same, then the
matter acquires a different dimension. If the court in judicial
review concludes that the acquittal in the criminal proceeding
was after full consideration of the prosecution evidence and
that the prosecution miserably failed to prove the charge, the
Court in judicial review can grant redress in certain
circumstances. The court will be entitled to exercise its
discretion and grant relief, if it concludes that allowing the
findings in the disciplinary proceedings to stand will be
6
unjust, unfair and oppressive. Each case will turn on its own
facts. [See G.M. Tank vs. State of Gujarat & Others, (2006)
5 SCC 446, State Bank of Hyderabad vs. P. Kata Rao,
(2008) 15 SCC 657 and S. Samuthiram (supra)]
Discussion:
Validity of the Disciplinary proceeding – Question No. 1:
14. A brief analysis of the facts of the case is essential. The
origin of this dispute, which does not inspire confidence at
all, is as follows. The appellant’s cousin Shravan Lal (PW-4
in the departmental enquiry and PW-6 in the criminal case),
deposed as under before the enquiry officer :-
"Stated on enquiry that about 13 months ago, I was
operating engine at Well. On that day at about 3.00 p.m.,
Ramlal after drinking liquor, came at well and switched
off the engine. Thereafter, Ramlal abused me and scuffled
with me and said that today I will operate the engine and
you cannot do anything to me. I have received job by
fooling the Government. When I enquired him that how
you did that, then, Ramlal told me that I have received job
by altering my date of birth as 21.04.1972 in my
marksheet, whereas, my date of birth was 21.04.1974.
7
Thereafter I went to school and enquired about this fact,
whereupon I came to know that his date of birth was
21.04.1974. Due to this reason, I produced an application
before the Superintendent of Police, Ajmer and made one
report to the Commandant, 9th Battalion, RAC, Tonk and
I also made one report to the Hon'ble Chief Minister and
one report to DIG, RAC, Rajasthan, Jaipur….."
An F.I.R. was registered on 02.09.2002. A charge-sheet in
the departmental proceeding was issued on 02.04.2003. It
will be relevant to extract the two charges in the disciplinary
proceedings:
"Charge No.1 :-
In the year 1991, an application for appointment on the
post of constable was made by you, alongwith which,
Marksheet of 8th pass issued by Government Secondary
School, Tiloniya (Ajmer), bearing Roll No. 323 and
Admission No. 2314, in which, your date of birth was
mentioned as 21.04.1974, but you by altering it to
21.04.1972, fraudulently got recruited on the post of
Constable.
Charge No.2:-
As a result of altering your date of birth from 21.04.1974
to 21.04.1972 in the Marksheet issued by the Government
Secondary School, Tiloniya (Ajmer), Crime No. 183/02
under Section 420, 467, 468, 471 IPC was registered
against you in P.S. Mandor, District -Jodhpur."
8
15. Five witnesses were examined in the departmental
enquiry, namely, PW-1 Jagdish Chand, Principal in
Government Secondary School, Village Tiloniya, PW-2
Bhawani Singh (constable who was tasked to bring the
school records), PW-3 Karan Sharma, who was Circle Officer
and had recorded the statement of Shravan Lal; PW-4
Shravan Lal and PW-5 Raj Singh who conducted the
investigation of the criminal case.
16. The evidence of PW-5/Raj Singh, as set out in the
enquiry report taken as it is, is significant since he clearly
disproved the charge. He stated the following in the crossexamination before the enquiry officer:
“Raj Singh you conducted investigation of Crime No. 102
and sent the copy to Commandant, 9th Battalion, RAC,
Tonk, what documents you sent alongwith the same - The
documents which were sent by me were copy of FIR,
copy of chargesheet which was submitted in the Court
and statements of witnesses recorded during the
investigation and documents; whose photocopies were
also given to the accused. Whether you had sent the
copies of statements recorded in the aforesaid case to the
Commandant - I did not send the copies to Commandant
Sahab. Which officer had submitted the chargesheet,
order of result in the Court – the then SHO of P.S.
9
Mandor, District - Jodhpur City namely Sh. Ram Pratap
submitted result of investigation, order and chargesheet
against the accused, in the Court.”
During the investigation, you had recorded statements of
Dharmendra Kumar Jatav and Jairam Gurjar, did you
record more statements and whether you would identify
the copies of those statements - Yes, I recorded the
statement of witnesses as it is. And I am producing
herewith the statements of both the aforesaid witnesses.
Whether those have been written by yourself - Yes, those
statements have been written by me, which are Exh. D-1
and Exh. D-2. In Exh. D-1, I recorded statement of
Teacher namely Rakishan Dev Murari on A to B part and
I filled the marksheet of Ramlal, wherein, date of birth of
Ramlal is mentioned as 21.04.1972 in C to D part, which
has been written as per the dictation of Checking Teacher
Ramkishan Dev Murari. Date of birth of 21.07.1972
mentioned on E to F part, was not mentioned in deliberate
manner, in fact, same has been written due to the human
error, whether you are agree with this statement - This
statement is correct, whereas, at the time of filling up
form for recruitment in Police RAC, Ramlal could
enclose T.C. of 9th Pass, and he was studying in 10th
class."
Thereafter, referring to the Exh. D-2 [Statement of Jairam
Gurjar], he deposed as under:-
"Similarly, in Exh. D-2, on A to· B part, you have shown
me the photocopy of 8th class marksheet of Ramlal S/o
Sh. Tejuram Chaudhary, R/o Tiloniya, on which,
signatures of it's issuer i.e. Teacher namely Sh.
Dharmendra Kumar, Ramkishan Dev Murari and
10
Headmaster Sh. Vishnu Miyani are mentioned. I am
acquainted with their signatures."
17. Most importantly dealing with the 8th class marksheet
of the appellant, which formed the basis for his application
seeking appointment as Constable, PW-5/Raj Singh stated as
under:-
"The 8th class marksheet of Ramlal enclosed in the
documents, which is Exh. P-3, (sic) in which, whether
any alteration has been found in the date of birth
anywhere, and whether date of birth has been mentioned
as 21.04.1972 therein - Yes, no alteration has been made
in the marksheet of 8th class and date of birth is
21.04.1972."
18. It is very clear from the above that no alteration was
found in the Appellant’s 8th class marksheet (which forms
part of the enclosed documents sent to the Commandant) and
the date of birth mentioned on it was 21.04.1972. Reference
to ‘P-3’ in the above extract appears to be a mistake. The
chargesheet and documents enclosed were Ex. P-12/1 to P12/12. The defence also exhibited the original 8th class
11
marksheet separately as Exh. D-3, as is clear from the chart
of Exhibits set out in the enquiry report.
19. The Enquiry Officer, after setting out the depositions of
the witnesses, set out the chart of the “P” series Exhibits and
the Exhibits of the delinquent, namely the “D” series, and
without any further discussion or marshaling of the evidence
recorded the following with regard to charge-1:
“On perusal of statement of witnesses namely PW-1 PW2, PW-3, PW-4, PW-5 and Exh. P-1 to P-12, it is clear
that correct date of birth of delinquent constable was
21.04.1974. When, delinquent constable submitted
application for recruitment on the post of Constable, at
that time, he did not complete the age of 18 years,
therefore, due to the apprehension of rejection of his
application due to the less age, delinquent constable has
altered his date of birth as 21.04.1972 from 21.04.1974,
therefore, Charge No.1 stands proved.
Delinquent Constable has also passed 10th class, whose
marksheet is Exh. P-4, in which, his date of birth is
mentioned as 21.04.1974.”
In so far as charge-2 was concerned, it was merely
noticed that challan had been filed in the criminal case as on
12
28.02.2004, the date of enquiry report, and that the trial had
not concluded.
20. In the operative part of the enquiry report under the
head, ‘conclusions’, there is no reference to the 8th class
marksheet, (which was part of the enclosed documents sent
by Constable Raj Singh with the chargesheet) or to Exh.D-3
[the original 8th class marksheet] exhibited by the defence.
There is also no reference to the statement of Raj Singh PW-5
in the enquiry, who had acknowledged that there was no
alteration in the marksheet of the 8th class. What is referred
to in the chart of exhibits are letter of Jagdish Chand (Ex.P1);
the duplicate marksheet of 8th class issued by Jagdish Chand
(Ex.P2); the statement of Shravan Lal (Ex-P3); 10th class
marksheet of Secondary Education Board Rajasthan, Ajmer,
(Ex.P4); preliminary enquiry dated 16.10.2002 by Circle
Officer, Kishangarh (Ex.P5); FIR No. 183/2000, (Ex.P6);
application submitted by Ram Lal for recruitment to the post
of constable (Ex.P-7); letter of appointment dated 08.11.1991
13
(ExP-8); verification letter filed by Ramlal (Ex.P9);
appointment order dated 16.12.1991, (Ex-P-10); letter of
Government School Tiloniya, Ex.P-11; and chargesheet dated
24.04.2003, Ex.P-12.
21. It is very clear that relevant and material evidence
being, the deposition of PW-5/Raj Singh; the marksheet of 8th
class of the appellant [enclosed to the chargesheet] and the
original marksheet independently marked as Ex. D3 by the
defence have been completely left out in the discussion and
consideration. Inference has been drawn about the proof of
the charges by ignoring crucial, relevant and material
evidence which had come on record. The evidence of PW-5
Raj Singh and the marksheet enclosed in the documents
annexed to the chargesheet and the original marksheet
marked as Ex. D-3, were materials having a direct bearing on
the charge. The Disciplinary Authority has merely reiterated
the reasoning in the enquiry report. Equally so are the
findings of the appellate authority. It is well settled that if the
14
findings of the disciplinary authorities are arrived at after
ignoring the relevant material the court in judicial review can
interfere. It is only to satisfy ourselves to this extent, that we
have scrutinized the material to see as to what was reflected
in the record. We are satisfied that the disciplinary
proceedings are vitiated and deserves to be quashed.
22. In this scenario, we are inclined to accept the
explanation given by the appellant that overwriting in the
application form was only due to correction of an inadvertent
error. As long as the original 8th standard marksheet reflected
his date of birth as 21.04.1972 and there is no correction or
manipulation in that document, the appellant cannot be
penalised.
Effect of Acquittal in the Criminal Proceeding – Question
No. 2:
23. With this above background, if we examine the criminal
proceedings the following factual position emerges. The very
same witnesses, who were examined in the departmental
15
enquiry were examined in the criminal trial. Jagdish
Chandra, Bhawani Singh, Shravan Lal, Raj Singh and Karan
Sharma were examined as PW2, PW3, PW6, PW9 and PW13
respectively at the criminal trial. Apart from them, eight other
witnesses were also examined. The gravamen of the charge in
the criminal case was that the appellant had submitted an
application for recruitment along with his marksheet and he,
by making alteration in his date of birth to reflect the same as
24.04.1972 in place of 21.04.1974, and obtained recruitment
to the post of Constable. Though the Trial Court convicted
the appellant under Section 420 of IPC, the Appellate Court
recorded the following crucial findings while acquitting the
appellant:
“….Mainly the present case was based on the documents
to this effect whether the date of birth of accused is
21.04.1972 or 21.04.1974. Exh. P-3 is original
Marksheet, in which, the date of birth of accused has been
shown as 21.04.1972 and same has also been proved by
the witnesses examined on behalf of the prosecution.
Whatever the documents have been produced before the
Court regarding the date of birth of 21.04.1974 are either
the letters of Principal or are Duplicate T.C. or
16
Marksheets. Neither the prosecution has produced any
such original documents in the Subordinate Court to this
effect that when the admission form of accused was
filled, what date of birth was mentioned by the accused in
it, what was the date of birth in Roll Register of School,
what date of birth was mentioned by accused in the
Examination Form of Secondary, and nor after bringing
the original records from the concerned witnesses, same
were got proved in the evidence. In these circumstances,
this fact becomes doubtful that date of birth of accused
was 21.04.1974, and accused is entitled to receive it’s
benefit. In the considered opinion of this Court, the
conviction made by the Ld. Subordinate Court merely on
the basis of oral evidences and letters or duplicate
documents, is not just and proper. It is justifiable to acquit
the accused.
Resultantly, on the basis of aforesaid consideration, the
present appeal filed by the Appellant/Accused is liable to
be allowed.”
[Emphasis supplied]
24. What is important to notice is that the Appellate Judge
has clearly recorded that in the document Exh. P-3 – original
marksheet of the 8th standard, the date of birth was clearly
shown as 21.04.1972 and the other documents produced by
the prosecution were either letters or a duplicate marksheet.
No doubt, the Appellate Judge says that it becomes doubtful
17
whether the date of birth was 21.04.1974 and that the accused
was entitled to receive its benefit. However, what we are
supposed to see is the substance of the judgment. A reading
of the entire judgment clearly indicates that the appellant was
acquitted after full consideration of the prosecution evidence
and after noticing that the prosecution has miserably failed to
prove the charge [ See S. Samuthiram (Supra).]
25. Expressions like “benefit of doubt” and “honorably
acquitted”, used in judgments are not to be understood as
magic incantations. A court of law will not be carried away
by the mere use of such terminology. In the present case, the
Appellate Judge has recorded that Exh. P-3, the original
marksheet carries the date of birth as 21.04.1972 and the
same has also been proved by the witnesses examined on
behalf of the prosecution. The conclusion that the acquittal
in the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably
failed to prove the charge can only be arrived at after a
18
reading of the judgment in its entirety. The court in judicial
review is obliged to examine the substance of the judgment
and not go by the form of expression used.
26. We are satisfied that the findings of the appellate judge
in the criminal case clearly indicate that the charge against
the appellant was not just, “not proved” - in fact the charge
even stood “disproved” by the very prosecution evidence. As
held by this Court, a fact is said to be “disproved” when, after
considering the matters before it, the court either believes
that it does not exist or considers its non-existence so
probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it does
not exist. A fact is said to be “not proved” when it is neither
“proved” nor “disproved” [See Vijayee Singh and Others v.
State of U.P. (1990) 3 SCC 190].
27. We are additionally satisfied that in the teeth of the
finding of the appellate Judge, the disciplinary proceedings
and the orders passed thereon cannot be allowed to stand.
19
The charges were not just similar but identical and the
evidence, witnesses and circumstances were all the same.
This is a case where in exercise of our discretion, we quash
the orders of the disciplinary authority and the appellate
authority as allowing them to stand will be unjust, unfair and
oppressive. This case is very similar to the situation that
arose in G.M. Tank (supra).
28. Apart from the above, one other aspect is to be noted.
The Enquiry Officer’s report makes a reference to the
appellant passing 10th standard, and to a 10th standard
marksheet exhibited as Exh. P-4 referring to the date of birth
as 24.07.1974. Jagdish Chandra-PW1 (in the departmental
enquiry) clearly deposed that since the appellant was
regularly absent from Class 10, his name was struck off and
he did not even pass 10th standard. The appellant has also
come out with this version before the disciplinary authority,
stating that the 10th class certificate of Ram Lal produced
before the Enquiry Officer, is of some other Ram Lal.
20
29. This issue need not detain us any further because it is
not the case of department that the appellant sought
employment based on 10th standard marksheet. It is their
positive case that the appellant sought employment on the
basis of his 8th standard marksheet. Shravan Lal-PW-4 in the
departmental enquiry had also furnished the 10th standard
marksheet procured from the Secondary Education Board,
Ajmer. In cross-examination, on being asked, he admitted
that the appellant was recruited on the basis of 8th standard
marksheet, and he admitted that there was no alteration in the
8th standard marksheet.
30. In view of the above, we declare that the order of
termination dated 31.03.2004; the order of the Appellate
Authority dated 08.10.2004; the orders dated 29.03.2008 and
25.06.2008 refusing to reconsider and review the penalty
respectively, are all illegal and untenable.
31. Accordingly, we set aside the judgment of the D.B.
Special Appeal (Writ) No.484/2011 dated 05.09.2018. We
21
direct that the appellant shall be reinstated with all
consequential benefits including seniority, notional
promotions, fitment of salary and all other benefits. As far as
backwages are concerned, we are inclined to award the
appellant 50% of the backwages. The directions be complied
with within a period of four weeks from today.
32. The appeal is allowed in the above terms. No order as
to costs.
…..…………………J.
(J.K. Maheshwari)
…..…………………J.
(K.V. Viswanathan)
New Delhi;
December 04, 2023.
22
