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2012 DIGILAW 86 (PAT)

Lakshman Yadav v. State Of Bihar

2012-01-16

NAVIN SINHA

body2012
Order Heard learned Counsel for the petitioner and the State. 2. The petitioner, a constable in the Bihar Police, is aggrieved by the orders dated 19.3.2008 of dismissal, as modified on 27.11.2008 to one of compulsory retirement in appeal, and the order of rejection on the Memorial by the Director General of Police, Bihar, on 31.3.2011. 3. Learned Counsel for the petitioner submits that on the same allegations the petitioner was proceeded with departmentally in 1995 and a punishment for one black mark awarded. The petitioner cannot be exposed to double jeopardy by punishment on the same allegations all over again. 4. Counsel for the State submits that the petitioner has been subjected to a regular departmental proceeding. There are no procedural infirmities alleged in the conduct of the proceeding. The jurisdiction of the Writ Court shall be limited and it cannot examine questions of fact. The reasonableness and fairness on part of the respondents is apparent from the fact that punishment for dismissal has been reduced to compulsory retirement which shall not prejudice the petitioner to the extent of dismissal. the continued misbehaviour of the petitioner with the complainant even after the first punishment is a fresh cause of action justifying a fresh proceeding and fresh punishment. The petitioner is an accused in a criminal case under Section 498A of the Penal Code in which the complainant has also been examined and chargesheet has been submitted against him. The trial is acknowledged to be pending. 5. No counter affidavit is required as the documents of the respondents are speaking in nature leaving no controversy on facts. 6. The petitioner was placed under suspension on 28.4.2007 and a memo of charge framed. It alleged that while posted at Chatra he had an extra marital affair with a married woman, one Rajkumari Devi, who also had children and established physical relations with her on promise of marriage but subsequently declined. It was unbecoming of his conduct as a government servant. The petitioner has replied to the charges taking a specific objection in para 7 that he had been subjected to a departmental proceeding on the same charges and punished by award of a black mark. The fresh proceeding was barred amounting to double jeopardy. A second show cause notice was then issued to the petitioner on 12.2.2008. The petitioner has replied to the charges taking a specific objection in para 7 that he had been subjected to a departmental proceeding on the same charges and punished by award of a black mark. The fresh proceeding was barred amounting to double jeopardy. A second show cause notice was then issued to the petitioner on 12.2.2008. In reply, the petitioner again took the specific objection of the earlier punishment which has been noticed in the impugned order of dismissal dated 19.3.2008 but does not form part of the consideration. 7. The offence alleged against the petitioner is his conduct unbecoming of a government servant, establishing an extra marital relationship with a married woman who had children from her own marriage and establishing physical relations on promise of marriage. It led to a departmental proceeding culminating into a punishment of one black mark. The misconduct attributed was a one time event. There is no allegation that he entered into any extra marital affair with a third woman thereafter when a fresh proceeding may or may not have been justified. If despite punishment of one black mark he did not mend his ways it does not amount to a fresh misconduct. The aggrieved has sufficient remedies available under the Civil and Criminal Laws of the land and which she appears to have invoked under Section 498A of the Penal Code. The Court therefore holds that the petitioner could not have been exposed to a fresh departmental proceeding in 2007 on the same charges on which he has been punished in 1995 which is an admitted fact which the documents of the respondents do not dispute. 8. Considering double jeopardy in a departmental proceeding in (2004) 13 SCC 342 (Lt. Governor Delhi v. H. C. Narinder Singh) the Supreme Court held: “4. ………….Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would amount to double jeopardy. The Tribunal was, therefore, right in law in annulling such an action…….” 9. If double jeopardy completely prohibits any departmental proceeding against the petitioner whether it be the order of dismissal or compulsory retirement both stand vitiated. 10. Second penalty based on the same cause of action would amount to double jeopardy. The Tribunal was, therefore, right in law in annulling such an action…….” 9. If double jeopardy completely prohibits any departmental proceeding against the petitioner whether it be the order of dismissal or compulsory retirement both stand vitiated. 10. Nothing in this order shall be construed as any opinion and/or observations of the Court on the merits of the prosecution under Section 498A of the Penal Code against the petitioner which shall proceed on its own merit. 11. The impugned orders 19.3.2008 of dismissal as modified on 27.11.2008 to one of compulsory retirement in appeal and the order of rejection by the Director General of Police, Bihar, in Memorial on 31.3.2011 are hereby quashed. 12. The writ application stands allowed.