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2011 DIGILAW 787 (JHR)

Vinay Kumar Singh v. State of Jharkhand

2011-08-16

JAYA ROY, PRAKASH TATIA

body2011
Order Heard learned counsel for the parties. 2. The petitioner-appellant is aggrieved against the order passed in writ petition being W.P.(S) No. 1966 of 2009. As per the facts of the case, the petitioner who was holding the post of constable was charge-sheeted and in departmental enquiry, he was punished with the punishment of compulsory retirement. The petitioner challenged the said departmental enquiry and the punishment by preferring an appeal, which too was dismissed and thereafter ultimately the petitioner approached this Court by filing the writ petition. The writ petition has been dismissed by the learned Single Judge; hence this L.P.A by writ petitioner. 3. According to the learned counsel for the appellant, a bare perusal of the charge will show that the charges were vague as well as per se contradictory – in one charge, it has been stated that the petitioner was found in drunken state in railway platform, whereas in another charge, it has been stated that the petitioner was not found on the railway platform and in third charge again, it has been stated that petitioner was found on platform no. 7. Learned counsel for appellant also submitted that the petitioner was not made aware that his past punishment will be taken into consideration while punishing the petitioner and in the departmental enquiry, it has been observed that the petitioner was punished eight times earlier for major misconduct and, therefore, the petitioner has been twice punished which is contrary to the principle of double jeopardy. It is also submitted that the doctor was not examined even when it was alleged that the petitioner was examined by the doctor. Learned counsel for the appellant relied upon the judgments of the Supreme Court delivered in the cases of Hardwari Lal Vs. State of U.P and others (1999) 8 SCC 582 and Lt. Governor, Delhi and others Vs. HC Narinder Singh (2004) 13 SCC 342 . 4. We considered the submissions of the learned counsel for the appellant and perused the orders given by the Authorities in Departmental Proceedings as well as the reasons given by the learned Single Judge in the impugned order. 5. So far as case of double jeopardy is concerned, that has been wrongly sought to be applied in the present case as the petitioner has not been sought to be punished for his any earlier misconduct for which he has been awarded punishment. 5. So far as case of double jeopardy is concerned, that has been wrongly sought to be applied in the present case as the petitioner has not been sought to be punished for his any earlier misconduct for which he has been awarded punishment. Awarding of punishment on the basis of one charge on earlier occasion and again awarding of punishment for the same charge is impermissible but while taking into account overall conduct of the person, the previous infliction of punishment is relevant and they themselves do not constitute a reason for the punishment on subsequent occasion, then it is not a double punishment for one act. It appears that at the time of imposing of the punishment the fact of the petitioner's earlier eight punishments for major guilt were taken into account and at the same time, it appears from the order itself that uninfluenced by that punishment only order of compulsory retirement has been passed in a matter where the petitioner was assigned the duty in Train No. 2817 UP and the petitioner after taking fire arms from Dhanbad Armory did not board the train to accompany the party and this fact is admitted in reply by the petitioner himself that he could not board the train after obtaining fire arms from the Dhanbad Armory with the pretext that because of the rush in the train he could not board, which is liable to be rejected and was rightly rejected in the departmental proceeding. In that way, it is clear that one of the charges is already admitted by the petitioner himself and second charge was that he misbehaved with the persons on the platform, for that also there is evidence which was considered in the departmental enquriy and this Court cannot sit as an appellate court over the proceedings of the departmental enquiry so as to asses the credibility of the witnesses. In the facts of the case when the incident occurred on the platform, it was not expected that department would produce independent witnesses who may be passenger. In the facts of the case when the incident occurred on the platform, it was not expected that department would produce independent witnesses who may be passenger. It is also clear from the charges referred to above that the petitioner was charged with the allegation that he did not board the train and admittedly the petitioner was on the platform and he was not found on the platform as he did not board the train and when found, he was found in drunken state at platform; therefore, charge is not vague. 6. In the case of Hardwari Lal (Supra), the Hon'ble Supreme Court decided the matter on the basis of facts of that case and it has been observed that two material witnesses whoso testimony may have impact on the departmental enquiry could not be visualized and, therefore, on the facts, the departmental proceeding was quashed and in this case, the other evidence was found sufficient for proving the guilt of the delinquent-petitioner-appellant. 7. In the Case of Lt. Governor, Delhi and others (Supra) the facts were entirely different. In that case a departmental enquiry was initiated and, thereafter again a show cause notice was issued and the departmental proceeding was initiated on the basis of same cause of action, which is not the case before us. Therefore, the judgment referred to above have no application over this case. 8. It will be worthwhile to mention here that it was the duty of the writ petitioner to disclose the complete facts in the writ petition and in this case the petitioner was duty bound to state that he was punished on eight occasions earlier or not. The writ jurisdiction is equitable discretionary jurisdiction and if relevant material facts with respect to conduct is suppressed for challenging the departmental proceeding, that itself may be sufficient reasons depending upon facts of each case, for not exercising the jurisdiction by the High Court under Article 226 of the Constitution of India. In view of the above reasons, we do not find any reason to interfere with the order. 9. Learned counsel for the appellant submitted that the petitioner even if punished, in view of the order, he is entitled to certain benefits i.e., retiral benefits and authorities may be directed to pay the same, for that the petitioner-appellant may submit his representation, which will be considered by the authorities in accordance with law. 9. Learned counsel for the appellant submitted that the petitioner even if punished, in view of the order, he is entitled to certain benefits i.e., retiral benefits and authorities may be directed to pay the same, for that the petitioner-appellant may submit his representation, which will be considered by the authorities in accordance with law. 10. With these observations, this L.P.A is dismissed.