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2002 DIGILAW 1178 (RAJ)

Narain Lal v. State of Rajasthan

2002-07-05

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 7.10.1991 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 3.10.1991 (Annex.6) passed by the respondent No. 2- Chief Engineer, Public Health Engineering Department, Rajasthan, Jaipur by which the petitioner was removed from service be declared illegal and be quashed and set aside. (2). It arises in the following circumstances:- The petitioner was initially appointed as Lower Division Clerk/Store Munshi on work-charged basis in Public Health Engineering Department and, thereafter, he was appointed as Lower Division Clerk on regular basis with effect from 1.4.1971. He was, thereafter, promoted to the post of Upper Division Clerk vide order dated 7.3.1980, a copy of which is marked as Annex.1. A charge-sheet dated 20.12.1975 (Annex.2) was served on the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ``the CCA Rules) and the charge levelled against the petitioner in that charge-sheet (Annex.2) was that while he was working as Cashier, he collected certain amount totalling Rs. 2479.50, which he embezzled and deposited it subsequently. the departmental enquiry was held against the petitioner in the matter and thereafter, the respondent No. 2 Chief Engineer vide order dated 9.9.1977 imposed the penalty of stoppage of one grade increment without cumulative effect upon the petitioner. A copy of the order dated 9.9.1977 is marked as Annex.3. Subsequently, a criminal complaint was also lodged against the petitioner in the Police Station Napasar District Bikaner by the Chairman and General Secretary of Rashtriya Jal Mazdoor Union, Bikaner on 8.1.1978 in regard to the same amount of Rs. 2479.50 for which he was already punished in the departmental enquiry. A case for the offence under Sec. 409 IPC was registered against the petitioner and after investigation, a challan was filed in the Court of Magistrate. After conclusion of trial, the learned Chief Judicial Magistrate, Bikaner through his judgment and order dated 30.10.1987 (Annex.4) convicted the petitioner for the offence under section 409 IPC and sentenced to undergo one year RI and to pay a fine of Rs.1000/-, in default of payment of fine, to further undergo three months imprisonment. After conclusion of trial, the learned Chief Judicial Magistrate, Bikaner through his judgment and order dated 30.10.1987 (Annex.4) convicted the petitioner for the offence under section 409 IPC and sentenced to undergo one year RI and to pay a fine of Rs.1000/-, in default of payment of fine, to further undergo three months imprisonment. It may be stated here that against the said judgment and order dated 30.10.1987 (Annex.4) passed by the learned Chief Judicial Magistrate, Bikaner, the petitioner preferred an appeal before the learned Sessions Judge, Bikaner and the learned Sessions Judge, Bikaner vide order dated 19.11.1987 (Annex.5) suspended the operation of the order of sentence and, therefore, the appeal was transferred to the Court of Special Judge, SC/ST Cases and Addl. Sessions Judge, Bikaner. Note:- During the course of arguments, the learned counsel appearing for the respondents brought to the notice of this Court that the appeal filed by the petitioner against his conviction for the offence under Section 409 IPC was dismissed by the learned Special Judge, SC/ST Cases and Addl. Sessions Judge, Bikaner through judgment dated 12.4.1993 and the judgment and order dated 30.10.1987 (annex.4) passed by the learned Chief Judicial Magistrate, bikaner convicting and sentencing the petitioner for the offence under section 409 IPC were maintained. A copy of the judgment dated 12.4.1993 passed by the learned Special Judge, SC/ST Cases and Addl. Sessions Judge, Bikaner was placed on record. Thus, the appeal of the petitioner was decided after filing of the writ petition. After conviction of the petitioner for the offence under Sec. 409 IPC by the learned Chief Judicial Magistrate, Bikaner, the respondent No. 2 Chief Engineer while exercising powers conferred by proviso to Article 311 (2) of the Constitution of India read with Rule 19 of the CCA Rules, passed as order dated 3.10.1991 (Annex.6) imposing penalty of removal form service on the petitioner. In this writ petition, the order dated 3.10.1991 (Annex.6) by which the petitioner was removed from service has been challenged on various grounds and the main ground of the petitioner is that once a penalty has been imposed after holding departmental enquiry, no power remains with the authority to impose a penalty again the same matter on the ground that he was convicted in a criminal case. Hence, the impugned order dated 3.10.1991 (Annex.6) passed by the respondent No. 2 Chief Engineer is illegal and without jurisdiction as he had no power to review his earlier order dated 9.9.1977 (annex.3) by which the imposed penalty of stoppage of one grade increment without cumulative effect upon the petitioner. It was further submitted by the learned counsel for the petitioner that the impugned order Annex.6 dated 3.10.1991 is not only illegal, but it is also violative of Article 20 (2) read with Article 311 of the Constitution of India, as Article 20(2) f the Constitution of India prohibits the punishment of a person for the same offence more than once. Since the petitioner was already punished for the misconduct in the departmental enquiry, therefore, no other penalty could be imposed by the respondents on the petitioner again on his conviction. This, from this point of view also, the impugned order dated 3.10.1991 (Annex.6) cannot be sustained. A reply to the writ petition was filed by the respondents on 21.7.1991 and through reply, a circular dated 24.4.1990 (Annex.R/1) issued by the Government of Rajasthan, Department of Personnel (A-III), Jaipur has also been filed. (3). I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record. (4). So far as factual position is concerned, there is no dispute on the point that there was a charge against the petitioner for embezzling Rs. 2479.50 in capacity as Cashier and for that, first he was charge-sheeted under Rule 16 of the CCA Rules and in that departmental enquiry, he was punished and penalty of stoppage of one grade increment without cumulative effect was imposed upon him vide order dated 9.9.1977 (Annex.3). (5). There is also no dispute on the point that FIR was also lodged against the petitioner and on the basis of that FIR, a case for the offence under section 409 IPC was registered against the petitioner and after investigation, challan was filed against the petitioner in the Court of Magistrate, and after conclusion of trial, the learned Chief Judicial Magistrate, Bikaner vide judgment and order dated 30.10.1987 (Annex.4) convicted the petitioner for the offence under Section 409 IPC and sentenced to undergo one year RI and to pay a fine of Rs. 1000/-, in default of payment to fine, to further undergo three months imprisonment. (6). 1000/-, in default of payment to fine, to further undergo three months imprisonment. (6). There is also no dispute on the point that after conviction of the petitioner for the offence under Sec. 409 IPC by the Criminal Court, the impugned order dated 3.10.1991 (Annex.6) removing the petitioner from service was passed by the respondent No. 2 Chief Engineer. (7). It may be stated here that the appeal filed by the petitioner against the judgment and order dated 30.10.1987 (Annex.4) passed by the learned Chief judicial Magistrate, Bikaner was also dismissed by the learned Special Judge, SC/ST Cases and Addl. Sessions Judge, Bikaner through judgment dated 12.4.1993 and his conviction and sentence for the offence under Sec. 409 IPC were maintained. However, it is made clear that the appeal of the petitioner was decided after filing of the writ petition. (8). Looking to the above facts and circumstances of the case, the question for determination in this writ petition is that where a person who has been punished earlier in a departmental enquiry under Rule 16 of the CCA Rules and later on, on the same charge, if he is convicted by the Criminal Court and subsequent to his conviction in criminal case, if an order of removal from service has been passed against that person, whether such an order of removal is illegal or without jurisdiction or hit by the principle of double jeopardy as envisaged under Article 20(2) of the Constitution of India or not. (9). It may be stated here that Clauses (1), (2) and (3) of second proviso to Article 311(2) of the Constitution of India correspond to clauses (i),(ii) and (iii) of Rule 19 of the CCA Rules. Rule 19 of the CCA Rules reads as follows:- ``Rule -19-Special Procedure in certain cases.- Notwithstanding anything contained in Rules 16, 17 and 18.- (i) where a penalty is imposed on a conduct which has led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure. The Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. The Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary. (10). It may be stated here that in case which fall under Rule 19 of the CCA Rules which corresponds to Article 311(2), the opportunity of hearing has been abolished altogether in the above three situations. (11). In such matters when departmental enquiry is there and criminal case is also there, there situations generally come in picture, which are as follows:- (1) The first situation is that when on a criminal charge, a person is acquitted, in such a situation, there was no prohibition for continuation of departmental proceedings against that person. For that the latest decision of the Honble Supreme Court in Secretary, Ministry of Home Affairs and Anr. vs. Tahir Ali Khan Tyagi (1) may be referred to. (2) The second situation is that even if a criminal prosecution has commenced and is continuing against any person, a disciplinary proceeding in respect of the accusation which forms the subject matter of the charge in the Criminal Court is not forbidden and it can be commenced. Therefore, two parallel proceedings one of disciplinary proceedings and other of criminal proceedings both can run together. (3) The third situation that can be visualised is that the person, who has faced departmental proceedings and in departmental proceedings, he was punished and, thereafter, if he was convicted in the criminal case, whether on the basis of conviction passed in criminal case, subsequent punishment can be imposed upon that person or not. In this writ petition, this third eventuality is there and the question which was posed above has to be answered. (12). The learned counsel for the petitioner has sought the help from Clause (2) of Article 20 of the Constitution of India which speaks that no person shall be prosecuted and punished for the same offence more than once. (13). Clause (2) of Article 20 of the Constitution of India guarantees that no person be prosecuted and punished for the same offence more than once. `And is used here in the ordinary conjunctive sense. (13). Clause (2) of Article 20 of the Constitution of India guarantees that no person be prosecuted and punished for the same offence more than once. `And is used here in the ordinary conjunctive sense. Hence, Article 20(2) bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously but this clause does not bar subsequent trial if the ingredients of the offences in the previous and the subsequent trials are distinct. (14). The necessary conditions for applicability of clause (2) of Article 20 of the Constitution of India are as follows:- (a) There must have been previous proceedings before a Court of law or a judicial tribunal of competent jurisdiction. (b) The person must have been `prosecuted in the previous proceeding. (c) The conviction (or acquittal) in the previous proceedings must be in force at the time of second trial. (d) The `offence which is the subject-matter of the second proceeding must be the same as that of the first proceedings, for which he was `prosecuted and punished. (e) The `offence must be an offence as defined in Sec.3(38) of the General Clauses Act, that is to say, `an act or omission made punishable by any law for the time being in force. It follows that the prosecution must b3 valid and not null and void or abortive. (f) The subsequent proceeding must be a fresh proceeding where he is, for the second time, sought to be `prosecuted and punished for the same offence. Hence, the clause has no application where the subsequent proceeding is a mere continuation of the previous proceedings, e.g. in the case of an appeal against acquittal, or against conviction. Nor does it bar a retrial, on appeal, with a direction to reframe the charges, provided the retrial is confined to the same offence of offences for which he had been tried at the original trial. In other words, a second punishment for the same offence does not attract the operation of the clause unless the second punishment is awarded in a fresh proceeding. (15). The words `prosecuted and punished indicate that both the proceedings referred to by the clause must be proceedings before a Court of law or a judicial tribunal. (16). In other words, a second punishment for the same offence does not attract the operation of the clause unless the second punishment is awarded in a fresh proceeding. (15). The words `prosecuted and punished indicate that both the proceedings referred to by the clause must be proceedings before a Court of law or a judicial tribunal. (16). `Prosecution in this context, thus, means an initiation or starting of proceedings of a criminal natural before a Court of law or a judicial tribunal in accordance with the proceedings prescribed in the statute which creates the offence and regulates the punishment. (17). `Punishment in this clause means a judicial penalty, awarded by a Criminal Court, as distinguished from a statutory authority and would not include other penalties such as disciplinary action in the case of public servants. (18). During the course of a arguments, specific question was put to both the learned counsel whether there is any authoritative pronouncement of the Honble Supreme Court or any other High Court on the point in question, but both learned counsel replied the question in negative and, thereafter, law books were searched and I have come across to an old case reported in S.A. Venkataraman vs. Union of India and Anr. (2), and that ruling of the Honble Supreme Court answers the present complexed question framed above. In that case, the Honble Supreme Court held as follows:- ``The language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence. (19). Thus, from perusing the law laid down by the Honble Supreme Court in the case of Venkataraman (supra), uit is very much clear that clause (2) of Article 20 of the Constitution of India would not include departmental disciplinary proceedings and furthermore, the punishment awarded under the departmental proceedings, would not be a punishment as referred to in clause (2) of Article 20 of the Constitution of India. (20). (20). Thus, the question posed in this writ petition is answered in the manner that after imposing punishment on any person in departmental enquiry, if that person is later on convicted in a criminal case an d on the basis of that conviction, if punishment of removal for service has been awarded to that person, it would not amount to double punishment and thus, it would not be hit by clause (2) of Article 20 of the Constitution of India. Thus, the previous punishment which was awarded to the petitioner in the departmental enquiry under Rule 16 of the CCA Rules would have no effect on the impugned order of removal dated 3.10.1991 (Annex.6). (21). Hence, for the reasons mentioned above, the punishment of removal from service awarded to the petitioner after his conviction in a criminal case through impugned order dated 3.10.1991 (Annex.6) is not hit by Clause (2) of Article 20 of the Constitution of India. (22). When this being the position, the arguments raised at bar by the learned counsel for the petitioner do not survive and fail and this writ petition is liable to be dismissed. (23). Apart from this, on point whether the punishment of removal from service imposed upon the petitioner is proper or not, the Honble Supreme Court in Municipal Committee, Bahadurgarh vs. Krishnan Behari and Ors. (3), has observed that in the case of misappropriation, imposition of punishment of dismissal from service is proper. From this point of view also, the impugned order dated 3.10.1991 (annex.6) by which the petitioner was removed from service does not call for any interference. (24). So far as the rulings relied upon by the learned counsel for the petitioner in Dr. Smt. Kuntes Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) and Ors. (4), Peetamber lal Sharma vs. Jaipur Development Authority and Anr. (5) and Dwarkachand vs. State of Rajasthan (6), and concerned, the same would not be helpful to the learned counsel for the petitioner as the facts of the present case and that of these cases are totally different one. (25). (4), Peetamber lal Sharma vs. Jaipur Development Authority and Anr. (5) and Dwarkachand vs. State of Rajasthan (6), and concerned, the same would not be helpful to the learned counsel for the petitioner as the facts of the present case and that of these cases are totally different one. (25). Before parting with this file, it may be stated here that passing of order of dismissal, removal or reduction in rank is not barred on the ground that sentence was suspended by appellate court or accused was released on bail pending appeal and for that, the decision of the Honble Supreme Court in Deputy Director of Collegiate Education (Administration). Madras vs. S. Nagoor Meera (7), may be referred to. From this point of view also, though the sentence of the petitioner was suspended by the appellate Court vide order dated 19.11.1987 (Annex.5), but that would not affect the impugned order of removal dated 3.10.1991 (Annex.6). For the reasons stated above, this writ petition fails and the same is hereby dismissed. The stay order, if any, stands vacated. A copy of this order be sent to the chief Secretary, Government of Rajasthan, Jaipur for information and guidance.