VERDICTUM.

IN

2023 INSC 1047 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)

JUDGMENT

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 02.09.2022 against him under

Sections 420, 467, 468 and 471 of the IPC. Soon thereafter,

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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

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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 along-

with 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.
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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

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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

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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

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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.

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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."

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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 cross-

examination 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.

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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
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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 P-

12/12. The defence also exhibited the original 8th class

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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 PW-

2, 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

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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); 10 th 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

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(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 8 th

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

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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

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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

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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

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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

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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.

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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.

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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

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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.

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