Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 1673 (MAD)

V. Palanisamy v. Chairman

2017-06-10

S.S.SUNDAR

body2017
ORDER : S.S. Sundar, J. The above Writ Petition is filed, to quash the impugned order passed by the second respondent dated 18.07.2016, removing the petitioner from service. 2. The petitioner was an employee in V.O. Chidambaranar Port Trust, Tuticorin, in Cargo Handling Division, as Mazdoor. While he was in service, a criminal case was registered against the petitioner for the offences under Sections 147, 148 and 302 of IPC and he was convicted for the offences and committed to life imprisonment and 10 years of rigorous imprisonment by the Fast Track Court II, Tuticorin, in SC.No.104 of 2008. The petitioner preferred an appeal before this Court in Crl.A.(MD) No.535 of 2008 and the same was disposed of on 09.12.2009, confirming the conviction but on a different Court is under Section 304. 3. It is on account of the conviction of the petitioner by the criminal Court for a grave offence of murder and for other offences, the second respondent who is the compedent authority passed the impugned order, holding that the conduct of the petitioner, which has led to his conviction by the Court of law is such as to render his further retention in the public services, is undesirable. This order was in exercise of the powers conferred by the second respondent by Regulations 15(i) of TPE (CCA) Regulation 1979 r/w Rule 19(i)) of the Central Civil Services (Classification Control and Appeal) Rule 1965 and his removal was with effect from 09.12.2009. No doubt, it was simply based on the order of this Court, in the Crl. A.(MD) No.535 of 2008, dated 09.12.2009. 4. Challenging the impugned order the learned Counsel for the petitioner raised few legal submissions. The first submission was that no person shall be prosecuted and punished for the same offence more than once, as per Article 20(2) of the Constitution of India and that the petitioner cannot be removed from service merely because he was convicted by a Criminal Court for a grave offence. Since the offence for which the petitioner was convicted is not in relation to his employment. It was further contented that the conviction in Criminal Case does not disqualify the petitioner. According to the learned counsel, removal of petitioner for remote and uncertain cause, which is not related to his work in unjust and unreasonable. Since the offence for which the petitioner was convicted is not in relation to his employment. It was further contented that the conviction in Criminal Case does not disqualify the petitioner. According to the learned counsel, removal of petitioner for remote and uncertain cause, which is not related to his work in unjust and unreasonable. The learned counsel for the petitioner further submitted that the petitioner is neither a recidivist or a habitual offender, but just a victim of circumstances in a criminal case. He submitted that unfortunate events cannot be the basis for condemning the petitioner by giving an ultimate punishment. It is also submitted that the petitioner was never involved in any other criminal case and that there was no criminal antecendence as against the petitioner in the past. 5. None of the contention raised by the petitioner, can be looked into by Court, when service rules governing the petitioner gives the power and authority to his appointing authority/Disciplinary authority, to remove the petitioner from service, if he is convicted for a grave offence and his conduct led to his conviction by a Court of law is such as to render his further retention in the public service undesirable. 5.1. 5.1. Article 311(2) of our Constitution of India can be usefully referred to and the same is extracted as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry”. 6. Hence, when a Government servant is convicted on a Criminal charge, for a grave offence it is not necessary to conduct an enquiry. The petitioner was convicted for the offence of murder. Having regard to the magnitude of proved misconduct, the petitioner deserves the punishment of removal from service. The conduct, of the petitioner, which led to his conviction makes his employer think that it is undesirable to retain him in service. In this case only after referring to the conduct, which led to the petitioner's conviction the punishment is imposed. Since the charge against the petitioner in criminal case itself in a grave misconduct, it was felt that it is not desirable to keep his in service in public interest the respondent has passed the impugned order. 7. It has been repeatedly held by the Honourable Supreme Court and this Court that departmental proceedings is not a prosecution within the meaning of Article 20(2) of the Constitution. 7. It has been repeatedly held by the Honourable Supreme Court and this Court that departmental proceedings is not a prosecution within the meaning of Article 20(2) of the Constitution. In this judgment rendered by the Honourable Supreme Court in the case of State of Hariyana v. Balwant Singh, reported in (2003) 3 Supreme Court Cases 362 it has held as follows: “4. From the facts that are not in dispute, it is abundantly clear that the order dated 12.3.1990 was passed against the respondent reducing the pay to the minimum of time scale of Driver for a period of four years on account of his causing loss and bringing bad name to the Department in the light of the order passed by the Motor Accidents Claims Tribunal, that too after holding enquiry under the Rules after giving him opportunity. The second order dated 17.9.1992 was passed on the basis of the conviction and sentence passed against him by the competent criminal court for the offence under Section 304-AIPC which was permissible under the Rules. These being the facts, there was no question of prosecuting and punishing the respondent for the same offence twice. The High Court was not right in equating departmental enquiries on different grounds to a prosecution in criminal case. The High Court also has failed to see that the two orders passed against the respondent were on different grounds and were on different cause of actions. 5. Under Rule 7(1) of the Rules, no order imposing a major penalty shall be passed against a person to whom the said Rules are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken. Under Rule 7(2) procedure to be followed and the requirements to be satisfied before imposing penalty in that regard are indicated. Sub-rule 2(b) of Rule 7 states that the provisions of the foregoing sub-rule shall not apply where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal case. In the present case, the first order was passed on 12.3.1990 reducing the pay to the minimum of time scale of Driver under Rule 7(1) of the Rules. The second order terminating his services was passed on 17.9.1992 under Rule 7(2)(b). In the present case, the first order was passed on 12.3.1990 reducing the pay to the minimum of time scale of Driver under Rule 7(1) of the Rules. The second order terminating his services was passed on 17.9.1992 under Rule 7(2)(b). When a major penalty is proposed to be imposed upon a person on the ground of conduct which led to his conviction on a criminal charge following the provisions contained in Rule 7(1) and (2) is not required. Rule 7 itself makes a distinction in regard to the punishment to be imposed depending on the grounds. 6. A three Judge Bench of this Court in Union of India and anr. v. P.D. Yadav [(2002) 1 SCC 405], while dealing with more or less a similar contention with regard to double jeopardy, has held thus:- “25. A contention, though feebly, 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 or 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. 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 nemo debet bis vexari, (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 case.” 7. Under these circumstances, there was no question of the respondent suffering a double jeopardy. The aid of Article 20(2) of the Constitution of India was wrongly taken. Article 20(2) of the Constitution of India does not get attracted to the facts of the present case. Before the trial court, no issue was raised as to the respondent suffering a double jeopardy although in the first appellate court, the discussion was made on this point. The aid of Article 20(2) of the Constitution of India was wrongly taken. Article 20(2) of the Constitution of India does not get attracted to the facts of the present case. Before the trial court, no issue was raised as to the respondent suffering a double jeopardy although in the first appellate court, the discussion was made on this point. In the view we have expressed above that the High Court committed a serious error in holding that the respondent was prosecuted and punished for the same offence twice, the impugned judgment cannot be sustained. Hence, the same is set aside. The judgment and decree passed by the trial court as affirmed by the first appellate court is restored. The appeal is allowed accordingly but with no order as to costs.” 8. In the case of S.A. Venkatraman v. Union of India and another reported in A.I.R. 1954 S.C.375, the Hon'ble Supreme Court has held as follows: “(15) It may be pointed out that the words “prosecution” and “punishment” have no fixed connotation and they are susceptible of both a wider & a narrower meaning; but in Article 20(2) both these words have been used with reference to on “offence” and the word “offence” has to be taken in the sense in which it is used in General Clauses Act as meaning “an Act or omission made punishable by any low for the time being in force”. It follows that the prosecution must be in reference to the law which creates the offence & the punishment must also be in accordance with what that law prescribes. The acts alleged to have been committed by the petitioner in the present case and on the basis of which the charges have been framed against him do come within the definition of “offences” described in sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. The Public Servants (Inquiries) Act does not itself create any offence nor does it provide any punishment for it. Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain penalties upon public servants for good and sufficient reasons. The rule does not mention any particular offence and obviously can create none. The Public Servants (Inquiries) Act does not itself create any offence nor does it provide any punishment for it. Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain penalties upon public servants for good and sufficient reasons. The rule does not mention any particular offence and obviously can create none. It is to enable the Government to come to the conclusion as to whether good and sufficient reasons exist, within the meaning of rule 49 of Civil Services Rules for imposing the penalties of removal, dismissal or reduction in rank upon a public servant that an enquiry may be directed under Act 37 of 1850.” 9. It is open to the respondent to remove an employee from service, on the basis of conviction, of the such employee, by a Criminal Court, if he is of the opinion that it is undesirable to retain such employee in service in public interest. The service Rules applicable to the petitioner, confers the power of the second respondent / Disciplinary authority to dismiss or remove the employee from service if he is convicted for an offence of murder. There is no question of applying the principles of double jeoparady in the case of this nature. 10. Hence, this Writ petition has no merits and the same is dismissed. No costs.