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Allahabad High Court · body

2003 DIGILAW 1622 (ALL)

R K VERMA v. STATE OF U P

2003-07-22

B.S.CHAUHAN, D.P.GUPTA

body2003
B. S. CHAUHAN, J. This writ petition has been filed for quashing the impugned suspension order dated 5-7-2003, passed by respondent No. 1. 2. Facts and circumstances giving rise to this case are that petitioner has been working as Chief Engineer, Nagar Nigam, Bareilly. He proceeded on leave, duly sanctioned, from 11 to 17 June, 2003 but came back on 25 June, 2003. For remaining absent from duty for a week, the impugned suspension order has been passed. Hence this petition. 3. Shri T. P. Singh, learned Senior Advocate has submitted that even the charge of absence from duty for a week would not make him liable for a major punishment, therefore, the impugned suspension order is liable to be quashed. 4. On the contrary, Shri R. N. Tripathi, learned Counsel appearing for the respondent No. 2 and the learned Standing Counsel appearing for the respondent No. 1 have submitted that petitioner has also been served a charge-sheet for forging signature of another officer and for receiving the illegal gratification from a contractor for removing the remarks made by another officer. Through all those allegations/charges relate to the period when petitioner was posted in Allahabad and enquiry is pending against him on those charges. Subsequent to passing the impugned suspension order, the charge-sheet has been prepared which contains allegations that petitioner remained absent from duty from 18 to 24 June, 2003 without sanction of the leave, and earlier also he had proceeded on casual leave for 13 and 14 January, 2003, but, did not return on 15 January, 2003. He remained absent for one day, and thus petitioner does not deserve to be given any indulgence. 5. Shri T. P. Singh, in reply, has submitted that for remaining absent for one day earlier in January, 2003 he had already been warned. Thus considering the same again for the purpose of suspension and including that allegation in the charge-sheet, would amount to double jeopardy, which is not permissible. 6. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 7. The scope of interference by the Court in suspension matters has been examined by the Honble Supreme Court in a catena of cases, particularly in State of M. P. v. Sardul Singh, 1970 (1) SCC 108 ; EVS. 6. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 7. The scope of interference by the Court in suspension matters has been examined by the Honble Supreme Court in a catena of cases, particularly in State of M. P. v. Sardul Singh, 1970 (1) SCC 108 ; EVS. Srinivas Shastri v. Comptroller and Auditor General of India, 1993 (1) SCC 419 ; Inspector General of Police and Anr. v. Thavasiappan, 1992 (2) SCC 145; Director General, ESI and Anr. v. E. Abdul Razak,, 1997 (1) LBESR 287 (SC) ; JT 1996 (6) SC 502; Scientific Adviser to the Ministry of Defence v. Denial Etc. , 1995 (Suppl.) SCC 374; Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. and Ors. , AIR 1988 SC 2118 ; Delhi Cloth General Mills v. Kushan Bhan, AIR 1960 SC 806 ; U. P. Krishi Utpadan Mandi Parishad v. Sanjeev Rajan, 1993 (Supp.) 3 SCC 483; State of Rajasthan v. B. K. Meena and Ors. , 1996 (6) SCC 417 and Secretary to Govt. , Prohibition and Excise Department v. L. Srinivasan, 1996 (3) SCC 157 , and observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the Court to interfere in case of suspension as it is in the exclusive domain of the competent Authority who can always review its order of suspension being an inherent power conferred upon him by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the Authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. 8. In State of Orissa v. Vimal Kumar Mohanty, AIR 1994 SC 2296 , the Honble Supreme Court observed as under: ". . . . . . when an Appointing Authority or the Disciplinary Authority seeks to suspend the employee the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing Authority and on application of the mind by the Disciplinary Authority. . . . . . when an Appointing Authority or the Disciplinary Authority seeks to suspend the employee the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing Authority and on application of the mind by the Disciplinary Authority. Appointing Authority or Disciplinary Authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf. . . . . In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. But as Authority earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuation of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fide, arbitrarily or for ulterior purpose. The suspension must be a step in add to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquents continuation in office while facing departmental inquiry or a trial of a criminal charge. " 9. In Allahabad Bank and Anr. v. Deepak Kumar Bhola, 1997 (2) LBESR 688 (SC) ; 1997 SCC (L and S) 897, the Honble Supreme Court held that in case involving serious charges, suspension order should not generally be interfered. " 9. In Allahabad Bank and Anr. v. Deepak Kumar Bhola, 1997 (2) LBESR 688 (SC) ; 1997 SCC (L and S) 897, the Honble Supreme Court held that in case involving serious charges, suspension order should not generally be interfered. However, the decision of the competent Authority should be based on material collected during investigation/inquiry. 10. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground. Suspension should be made only in a case where there is a strong prima facie case against the employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of Superior Authority are there, where the contents of strong prima facie case against him, if proved, would ordinarily result in his dismissal or removal from service. The Authority should also consider taking into account all the available material as to whether in a given case, it is advisable to permit him to continue not to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. 11. If the Court, after considering the evidence on record, comes to the conclusion that it is not such a case, which may justify the Authority to keep the employee under suspension for a prolonged period, the Court may interfere. However, suspension may not be revoked in a case where there is an apprehension of tampering with the evidence in a domestic enquiry/criminal prosecution or retention of the employee in the office is considered to be injurious to public interest. 12. So far as the issue of double jeopardy is concerned, it has been considered by the Court time and against in context to the service matter. 13. A Constitution Bench of the Honble Supreme Court in S. A. Venkataraman v. Union of India and Anr. , AIR 1954 SC 375 , explained the scope of doctrine of doubt jeopardy, observing that in order to attract the provisions of Article 20 (2) of the Constitution there must have been both prosecution and punishment in respect of the same offence. The words prosecuted and punished are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. The words prosecuted and punished are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. While deciding the said case, the Apex Court placed reliance upon its earlier judgment of the Constitution Bench in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 , wherein, it had been observed that the provision is based on a well established rule, embodied in the maxim "nemo debet bis vexari" a man must not be put twice in peril for the same offence. 14. In Union of India v. K. V. S. Jankiraman, AIR 1991 SC 2010 , the Honble Supreme Court dealt with the submission that in spite of being punished, an employee has a right to be considered for promotion. The Honble Supreme Court rejected the submission holding as under: ". . . . . The officer cannot be rewarded by promotion as matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. . . . . To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. . . . . . . . When an employee is held guilty and penalised and is, therefore, not promoted at least till the date of which he is penalized, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion, his whole record has to be taken into consideration and denies him the promotion; such denial is not illegal and unjustified. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion, his whole record has to be taken into consideration and denies him the promotion; such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date the authority considers the promotion, "promotion on that ground". 15. Placing reliance on the aforesaid judgment in State of Tamil Nadu v. Thiru K. S. Murugesan and Ors. , JT 1995 (4) SC 307, the Honble Suprme Court held as under: "when promotion is under consideration, the previous record forms basis and when the promotion is on merit and ability the currency of punishment based on previous record stands an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. . . . . . Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with 16 of the Constitution. " 16. In State of Punjab and Anr. v. Dalveer Singh and Ors. , JT 2000 (10) SC 456, the Honble Supreme Court considered the scope of double jeopardy and provisions of Article 20 of the Constitution in case where disciplinary proceedings initiated by the department were challenged by the employee on the ground that he had already been imposed the fine for committing the offence under the Motor Vehicles Act. The Honble Supreme Court rejected the submission that initiation of departmental proceedings would tantamount to violation of provisions contained in Article 20 (2) of the Constitution as it does not amount to double jeopardy. 17. The Honble Supreme Court rejected the submission that initiation of departmental proceedings would tantamount to violation of provisions contained in Article 20 (2) of the Constitution as it does not amount to double jeopardy. 17. In Union of India v. Sunil Kumar Sarkar, 2001 (3) SCC 414 , the Honble Supreme Court considered the argument that if the punishment had already been imposed for Court Martial Proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20 (2) of the Constitution. The Supreme Court explained that the Court Martial Proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over-lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the Honble Supreme Court placed reliance upon its earlier judgment in R. Viswan v. Union of India and Ors. , AIR 1983 SC 658 . 18. In Union of India and Anr. v. P. D. Yadav, (2002) 1 SCC 405, the Honble Supreme Court dealt with the issue of double jeopardy observing as under: "a contention, though feeble, was advanced on behalf of some of the respondents that forfeiture of pension in addition to the punishment imposed under Section 71 of the Army Act amounted to double jeopardy. In our view, this contention has no force. There is no question of prosecuting and punishing a person twice for the same offence. Punishment is imposed under Section 71 of the Army Act after trial by Court Martial. Passing an order under Regulation 16 (a) in the matter of grant of forfeiture of pension comes thereafter and it is related to satisfactory service. There is no merit in the contention that the said Regulation is bad on the ground that it authorized imposition of a double penalty; may be in a given case, penalty of cashiering or dismissal from service and the consequential forfeiture of pension may be harsh and may cause great hardship but that is an aspect which is for the President to consider while exercising his discretion under the said Regulation. May be in his discretion, the President may hold that the punishment of cashiering or dismissal or removal from service was sufficient having regard to circumstances of the case and that a person need not be deprived of his right to pension. A crime is a legal wrong for which an offender is liable to be prosecuted and punished but only once for such a crime. In other words, an offender cannot be punished twice for the same offence. This is demand of justice and public policy supports it. This principle is embodied in the well-known maxim memo debet bis vesari (si constat curiae quod sit) pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the Court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. Article 20 (2) expressly provides that; `no one shall be prosecuted and punished for the same offence more than once. Offences such as criminal breach of trust, misappropriation, cheating, defamation etc. , may give rise to prosecution on criminal side and also for action in Civil Court/other forum for recovery of money by way of damages etc. , unless there is a bar created by law. In the proceedings before General? Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16 (a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16 (a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases. " 19. Similar view has been reiterated by the Honble Apex Court in State of Haryana v. Balwant Singh, 2003 (3) SCC 362 , observing that there may be cases of misappropriation, cheating, defamation etc. Hence, there is no question of applying principle of double jeopardy to the present cases. " 19. Similar view has been reiterated by the Honble Apex Court in State of Haryana v. Balwant Singh, 2003 (3) SCC 362 , observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on a criminal side and also for action in Civil Court / other forum for recovery of money by way of damages etc. Therefore, it is always not necessary that in every such case the provision of Article 20 (2) of the Constitution may be attracted. 20. In Hira Lal Hori Lal Bhagwati v. C. B. I. New Delhi, 2003 AIR SCW 2735, the Apex Court while considering the case for quashing the criminal prosecution for evading the custom duty, where the matter stood settled under the Kar Vivad Samadhan Scheme, 1988; observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy. 21. Thus in order to substantiate the submission that an employee has been subjected to double jeopardy, it requires to be established that for the same charges after holding disciplinary proceedings in accordance with law, punishment had been imposed. 22. The case of the petitioner requires to be considered in view of the aforesaid settled legal propositions of law. Petitioner is being dealt with under the provisions of U. P. Government Servant (Discipline and Appeal) Rules, 1999, Rule 3 thereof provides that an employee can be liable for minor or major penalties mentioned therein. Rule 4 provides for suspension of the Government servant in exceptional cases as it provides that suspension should not be resorted to unless the allegations against the employee are so serious that in the event of their being established against him, the same ordinarily warrants major punishment. Sub-rule (8) of Rule 4 provides that suspension order can be modified or revoked by the competent authority. 23. In the instant case, the petitioner has been warned for remaining absent for one day earlier in January, 2003. Warning is not a punishment provided under the said Rules. Sub-rule (8) of Rule 4 provides that suspension order can be modified or revoked by the competent authority. 23. In the instant case, the petitioner has been warned for remaining absent for one day earlier in January, 2003. Warning is not a punishment provided under the said Rules. Therefore, we find no force in the contentions raised by Shri T. P. Singh learned Senior Advocate for the petitioner that as he has already been punished for the said absence, taking into consideration it again would amount to double jeopardy. 24. We also do not find any force in the contention raised by Shri R. N. Tripathi, learned Counsel appearing for the respondent No. 2 that the charge-sheet served upon the petitioner containing serious allegations of acceptance of illegal gratification and forging the documents etc. would be taken into consideration while deciding this case, for the reason that the said charges relate to his earlier period of service at Allahabad, and while passing the suspension order the charges have not been taken into consideration by the competent authority. 25. Thus in view of the above, it is not clear as to whether on the charges major punishment can be awarded. We are not inclined to probe the issue further. More so, as the clause (8) of Rule 4 enables the disciplinary/competent authority to revoke/modify the suspension order, the petitioner ought to have approached the said authority before filing this writ petition. 26. Therefore, we are not inclined to probe the issue further and petition is disposed of finally with a direction that in case petitioner files a proper representation within a period of one week from today before the competent authority ventilating all his grievances and raising the issues as to whether the misconduct, as alleged, if stands proved would make him liable for major punishment and whether it is required to keep him under suspension, the same shall be decided within a period of two weeks from the date of filing a certified copy of this order along with the representation. The letter written by respondent No. 2 to respondent No. 1 filed in support of the petition may also be taken into consideration while deciding the representation. 27. There shall be no order as to costs. Petition disposed of. .