In the High Court of Judicature at Madras Dated:- 17-02-2009 Coram: The Honourable Mr.Justice P.K.MISRA and The Honourable Mr.Justice M.SATHYANARAYANAN Writ Petition No.28847 of 2004 D.Narayanan .. Petitioner Versus 1.District Revenue Officer, Virudhunagar, Virudhunagar District. 2.The Revenue Divisional Officer, Aruppukottai, Virudhunagar District. 3.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600 104. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus to call for the records pertaining to the order passed in O.A.No.1077 of 2002 dated 28.01.2004 on the file of the Tamil Nadu Administrative Tribunal and the order passed by the second respondent in his proceedings Na.Ka.A1.6032/94 dated 30.04.1999, quash the same and consequently direct the second respondent to reinstate the petitioner into service with all consequential service and monetary benefits. For Petitioner .. Ms. S.Nirmala Daisy For Respondents.. Mr.K.Ilango, Special Govt. Pleader. ******* O R D E R
M.SATHYANARAYANAN, J
The writ petition is filed for the issuance of writ of certiorarified mandamus to set aside the order dated 28.1.2004 made in O.A.No.1077 of 2002 passed by the Tamil Nadu Administrative Tribunal (in short ‘the Tribunal’) and the order in proceedings No.Na.Ka.A1.6032/94, dated 30.04.1999 passed by the second respondent and consequently to direct him to reinstate the petitioner in service with all consequential and monetary benefits.
2. The petitioner joined as a Village Administrative Officer in the year 1984 and while he was working in that capacity at Manavarayanenthal Village, Thiruchuli Circle, the second respondent herein had initiated disciplinary proceedings by issuing a charge memo dated 7.10.1994 under Rule 17(b) of the Tamil Nadu Civil Servants (CCA) Rules. The charges framed against the petitioner are that:
(a) for having misappropriated a sum of Rs.2,500/- collected as Revenue Income;
(b) for having absented duty.
3. The petitioner has submitted his explanation dated 20.10.1994, to the charge memo stating that even prior to the issuance of the charge memo, he remitted the amount to the Government accounts. In so far as the second charge relating to absence from duty, the petitioner submitted that it was due to his ill-health and the absence from duty was not wilful.
4. The disciplinary authority not satisfied with the explanation submitted by the petitioner to the charge memo, ordered enquiry and it was conducted. The enquiry officer filed his report dated 19.11.1994 has held that both the charges have been proved. In response to the said enquiry report, the petitioner had submitted his further representation. The disciplinary authority has taken into consideration the enquiry report and further explanation submitted by the petitioner had passed final orders stating that “the petitioner is liable for capital punishment, but taking into account, the long unblemished service of the petitioner and the duration of his suspension period, the punishment of stoppage of increment for two years with cumulative effect would be appropriate”.
5. As regards the same allegation, criminal prosecution was also launched against the petitioner on the ground that the amount of Rs.2,500/- representing the tax collection collected during the month of March and April has been remitted on 7.10.1994. A case was registered against the petitioner in Crime No.166/1994 under Section 409 of IPC on 2.12.1994, i.e. two months after the payment was made by the petitioner to the Government accounts.
6. Even though the departmental proceedings started earlier, it was not stayed or deferred and disciplinary proceedings as well as criminal prosecution simultaneously went on and the departmental proceedings ended earlier, which culminated into the above said punishment.
7. In so far as the criminal prosecution is concerned, the petitioner herein filed a memo admitting the guilt in respect of the offence under Section 409 of the IPC. The Court of Judicial Magistrate, Aruppukottai, based on the said memo, has found the petitioner guilty of the offence under Section 409 of the IPC and imposed a sentence of imprisonment till the rising of the Court and a fine of Rs.300/- with a default sentence of one month Rigorous Imprisonment vide order dated 3.11.19195. The petitioner has paid the fine amount in compliance of the said order.
8. The second respondent vide show cause notice dated 5.12.1998 under Rule 17(c)(i)(1) of Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, calling upon the petitioner to show cause as to why action should not be taken against him in terms of the said Rule. The petitioner, in response to the said show cause notice, has submitted his explanation dated 3.2.1999. The second respondent vide proceedings dated 30.4.1999 has taken into consideration the explanation submitted by the petitioner and found that his explanation is not satisfactory and therefore, imposed a capital punishment of dismissal from service. Thereafter, the petitioner preferred an appeal to the first respondent and since no order was passed on the said appeal petition, he filed an Original Application in O.A.No.1077 of 2002 before the Tribunal to quash the order of dismissal from service. The Tribunal vide order dated 28.1.2004 has dismissed the Original Application holding that the conviction has created a stigma on the petitioner, therefore he cannot be allowed to work as a public servant. As the conviction act as disqualification, the petitioner was removed from service and it cannot be termed as a second punishment. Challenging the vires of the said order passed by the Tribunal, in confirming the order of dismissal passed by the second respondent, the present writ petition is filed.
9.We have heard Ms.Nirmala Daisy, learned counsel for the petitioner and Mr.K.Ilango, learned Special Government Pleader for respondents 1 and 2.
10.Learned counsel for the petitioner submitted that the petitioner was subjected to a punishment of stoppage of increment in the disciplinary proceeding on the allegation that there was temporary misappropriation of Government funds. Subsequently, in the criminal case, he was also convicted in respect of the very same allegation of temporary misappropriation by the judgment of the Judicial Magistrate, Aruppukkottai, dated 03.11.1995. A show cause notice under Rule 17(c)(i)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued on 05.12.1998 and an order of dismissal was passed. According to the petitioner, the imposition of such punishment on the basis of the very same misconduct of temporary misappropriation amounted to “double jeopardy” and the petitioner should not have been punished by the departmental authorities for the second time on the basis of the very same allegation.
11.Article 311 of the Constitution of India, to the extent relevant, is to the following effect::-
“311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.–
(1) . . . (omitted as not necessary)
(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 …..”
12. A perusal of Article 311 of the Constitution makes it clear that a person holding a civil post under the State shall not be dismissed or removed or reduced in rank without holding a departmental enquiry. The second proviso to Article 311(2), however, makes it clear that such clause relating to holding of enquiry as contained in Article 311(2), shall not apply 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.
13.It is quite well known that on the basis of the provisions contained in Article 311 of the Constitution and consistent therewith, Rules have been framed in purported exercise of power under Article 309 of the Constitution of India or in exercise of rule making power envisaged under any particular statute relating to exercise of disciplinary control over the subordinate staff working in different Governmental Organizations. Tamil Nadu Civil Services (Discipline and Appeal) Rules thus contain various provisions pertaining to disciplinary action to be taken. Part-III of the Tamil Nadu Civil Services (Discipline and Appeal) Rules contain various provisions relating to the punishments which can be imposed and the procedure to be followed. Rule 17(a) relates to the procedure in respect of imposition of penalty which can be compendiously described as minor penalty and Rule 17(b) contemplates the procedure in respect of imposition of penalties which can be described as major penalties.
As per Rule 17(a), before imposition of any penalty contemplated under Items (i), (ii), (iii), (v) and (ix) in Rule 8 or Rule 9, the delinquent is required to be given a reasonable opportunity of making any representation. However, as per the proviso, the requirement shall not apply where it is proposed to impose penalty on the basis of facts which have led to his conviction. Similarly, Rule 17(b) contemplates the method of holding the departmental enquiry before imposition of any major penalty. Rule 17(c)(i)(1) is however an exception and is to the following effect.
“(c)(i)(1)The requirements of sub-rule (b)shall not apply where it is proposed to impose on a member of a service any such penalty as is referred to in clause (i) of that sub-rule on the basis of facts which have led to his conviction in a criminal court (whether or not he has been sentenced at once by such court to any punishment); but he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed.”
14.On a plain reading of the aforesaid rule, it is apparent that Rule 17(c)(i)(1) of TNCS (D&A) Rules is only an exception to the procedure contemplated under Rule 17(b). It is apparent that Rule 17(c) gets its inspiration from Article 311(2) of the Constitution, more particularly Clause(a) of the second proviso to the effect that such clause shall not apply 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. In other words, under normal circumstances, a person can be dismissed or removed or reduced in rank only after holding an enquiry. However, a person can be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction in a criminal case without there being any enquiry. The obvious juristic principle is that the conduct is already found blameworthy or found punishable in a criminal trial.
As already indicated, but for the proviso to Article 311(2) of the Constitution of India, an enquiry is required to be held before imposition of major penalty. Similarly, but for the provision in Rule 17(c)(i)(1), an enquiry, as contemplated in Rule 17(b), is required to be held. It is no where contemplated that on the basis of the self-same misconduct, a person is required to be punished twice, once because he has been found guilty in a departmental enquiry and subsequently because he has been convicted in a criminal case on the basis of the self-same conduct.
15.Law is well settled that there is no embargo for the department to initiate departmental proceeding, even though on the self-same allegation a criminal case is already initiated or is contemplated. Similarly, it is left to the discretion of the departmental authorities either to proceed with the departmental enquiry even when a criminal case is pending or await the result of the criminal case. There are several decisions to the effect that even after acquittal in the criminal case, there is no legal embargo for the departmental authorities to revive the departmental proceeding, which has been kept in abeyance or to initiate a departmental proceeding afresh on the very same allegation.
16.In the present case, it was open to the departmental authorities to initiate department proceeding, which they did. It was also open to them to conclude the departmental proceedings even before the conclusion of the criminal trial. In the departmental proceeding, after the delinquent was found guilty, certain punishment was imposed. The charge in the criminal case was on the basis of very same allegation of temporary misappropriation. Even though the petitioner had already been subjected to a punishment on the very same allegation of temporary misappropriation, after the conclusion of the criminal case, the department has thought it fit to impose a second punishment of dismissal from service by taking resort to the procedure contemplated under Rule 17(c)()(1) of TNCS(D&A) Rules.
17.Rule 8 of TNCS(D&A) Rules contemplates the penalties which may be imposed upon a person who is a member of the civil service. Items (i) to (iii), (v) and (ix), that is to say censure, fine, withholding of increment or promotion and suspension, are considered as minor penalties; whereas Item Nos.(iv), (vi), (vii) and (viii), that is to say reduction to a lower rank in the seniority list or to a lower post or to a lower time-scale or compulsory retirement, removal from service or dismissal from service are considered to be major penalties. Rule 17(a) contemplates the procedure relating to imposing of minor penalties, as envisaged under Rule 8(i) to (iii), (v) and (ix); whereas Rule 17(b) contemplates the procedure relating to the imposition of major penalties. Rule 17(c) is only by way of exception to rule 17(b), as apparent from the opening words of Rule 17(c)(i)(1) to the effect that the requirements of sub-rule(b) shall not apply. In other words, a careful and combined reading of all the provisions would make it clear that it is open to the departmental authorities either to follow the procedure contemplated under Rule 17(b) or the procedure contemplated under Rule 17(c). However, when Rule 17(b) has already been followed and a punishment is imposed, it would not be permissible for the departmental authorities to again subject the very same delinquent to a fresh punishment on the self-same allegation on the ground that such conduct has led to his conviction in a criminal case, which, in our considered opinion, would amount to double jeopardy.
18.The aforesaid view expressed by us gets sustenance from some of the decisions rendered by different High Courts under similar circumstances. In the decision of the Andhra Pradesh High Court reported in 1971 SLR 24 – K.Srinivasa v. Director Agriculture A.P. (Hyderabad), the person concerned had been subjected to departmental enquiry and a punishment was imposed on the basis of certain allegations relating to misappropriation of Government Funds. Subsequently, the very same person was convicted in a criminal court on the basis of the very same allegation relating to misappropriation and the Government initiated a second proceeding on the basis of conviction. At that stage, the concerned civil servant approached the High Court. While repelling the contention of the counsel for the State that there was no prohibition for imposition of a subsequent penalty, it was observed as under:
“The contention of the learned Government Pleader is based upon the aforesaid rules. On a careful reading of the rules referred to above, I am not satisfied that a second enquiry by the respondent on the same set of facts against the petitioner who was already punished as a result of the Departmental enquiry resulting in an order made by the respondent on 02.09.1969 is permissible. No rule which specifically authorises the respondent to make a second enquiry with regard to the same set of facts in respect of which the earlier departmental enquiry had taken place, has been brought to my notice.
The other submission of the learned Government Pleader that because there is no prohibition in the Service Rules barring a second enquiry, the respondent can proceed with the second enquiry is equally devoid of any merit. The onus is on the respondent-authority to show that he is empowered under the rules or any statute to make a second enquiry in respect of the petitioner; but mere absence of any specific rule barring a second enquiry can by no stretch of reasoning, be construed or deemed to make the respondent competent to make a second enquiry. The action of the respondent must be justified by any positive power specified in any statute or rule governing the service conditions of the employee in question, to make a second enquiry. Hence, I do not find any merit in the aforesaid two contentions of the learned Government Pleader.
19.In the said case, reliance had been placed on Rule 19(3)(a) of the Andhra Pradesh Civil Services (Classifiction, Control and Appeal) Rules, which was to the following effect.
“The provisions of Sub-rules(1) and (2) shall not apply where it is proposed to impose on a member of a service any of the penalties mentioned in rule 8 or rule 9 on the ground of conduct which had led to his conviction on a criminal charge or where the authority competent to impose the penalty is satisfied that for some reasons to be recorded by that authority in writing, it is not reasonably particable to hold such enquiry or give such opportunity.”
Interpreting the aforesaid rule, it was further observed as under:
“A close reading of the rule 19(3)(a) reveals that it does not lend any support to the plea of the learned Government Pleader. By Rule 19(3)(a) of the opportunity provided under sub-rules (1) and (2) of rule 19 to the employee to make representations before the imposition of any penalty specified in rule 8 and 9 has been dispensed with in a case where the employee is sought to be punished on the ground of his conduct which has led to his conviction on a criminal charge, or where the competent authority is satisfied for the reasons to be recorded that it is not reasonably practicable to hold such enquiry or to give such opportunity. The procedure contemplated under sub-rules(1) and (2) of rule 19 providing for reasonable opportunity to the employee before imposing penalty, has been dispensed with as unnecessary in view of the fact that the convicted employee had ample opportunity in the criminal court to defend himself and establish his innocence. Thus, we have to fall back upon the provisions of Article 311 of the constitution to punish any civil servant after affording reasonable opportunity as provided under Clause (2) of the Article. The Civil Servants of the Union or of a State Government can be dismissed or removed by the appointing authority as per the provisions of Article 311 of the Constitution. No such person can be removed or dismissed or reduced in rank except after due enquiry giving him reasonable opportunity to making representations as provided under Clause (2) of Article 311. The opportunity provided under Article 311(2) can be dispensed with in a case where the employee has been dismissed or removed on the ground of conduct which has led to his conviction in a criminal court for any offence under the Penal Code. The earlier part of rule 19(3)(a) in my opinion, is nothing but a representation of the proviso(a) to Article 311(2) of the Constitution which read thus;
“Provided that this clause shall not apply(a) where a person is dismissed or removed or reduced in the rank on the ground of conduct which had led to his conviction on a criminal charge.”
Rule 19(3)(a) of the Rules as well as proviso (a) to Article 311(2) of the Constitution would only refer to the conduct of the employee resulting in conviction which would justify the dispensing with the procedure in the second enquiry. The heart of the matter is that it is the conduct of the employee in the course of the discharge of his duties that gives rise to a cause of action either to make the departmental enquiry or to proceed against him in a competent criminal court for an offence under the Penal Code, but not the conviction per se that can be made the basis or cause of action for initiation of the enquiry against the employee by the department. In other words, the conviction of an employee in a criminal Court would not give rise to a fresh cause of action for making a departmental enquiry. ……
20.Subsequently, a learned Single Judge of the Rajasthan High Court in the judgment reported in 1988 2 SLR page 200 – Kamruddin Pathan vs. R.S.R.T.C., while considering the question as to whether a delinquent can be punished twice for the self-same allegation, followed the aforesaid decision of the Andhra Pradesh High Court and quashed the punishment which had been imposed on account of conviction in the criminal case.
21.The learned counsel appearing for the State Government has, however, placed strong reliance upon a decision of the Supreme Court reported in AIR 2003 SC 1253 – State of Haryana v. Balwant Singh, in support of his contention that there is no embargo for punishing such a delinquent, who was already punished in a departmental proceeding to a second punishment on the basis of the conviction in a criminal case. In the aforesaid decision of the Supreme Court, the delinquent was a bus driver. An accident was caused on account of the negligent driving of such person, which resulted in the death of one person and injuries to another person. The Motor Accident Claims Tribunal passed an award compensating the victims. A departmental proceeding was initiated as the action of the delinquent had resulted in the loss of Rs.1,12,950/- to the transport department. In the said departmental proceeding, after enquiry, the delinquent was subjected to punishment of reduction to the minimum time scale. A criminal case had also been initiated alleging commission of offences under Sections 279, 337, 338 and 304-A IPC and the concerned driver was convicted. Thereafter, a subsequent order was passed terminating the services of the concerned driver, which was the subject matter of a civil suit. The delinquent, who was unsuccessful before the trial court and the first appellate court, succeeded in the High Court in the second appeal, wherein it was observed that an employee could not be punished twice for the same offence in view of Article 20(2) of the Constitution of India as no person shall be prosecuted and punished for the same offence more than once. This was the subject matter of appeal before the Supreme Court. The Supreme Court observed in paragraph 4 as under.
“4.From the facts that are not in dispute, it is abundantly clear that the order dated 12.03.1990 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 17.09.1992 was passed on the basis of the conviction and sentence passed against him by the competent criminal Court for the offence under Section 304-A IPC 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 Cout also has failed to see that the two orders passed against the respondent were on different grounds and were on different cause of actions.”
22.In our considered opinion, a careful reading of the aforesaid decision makes it ample clear that the factual scenario in the said case were different. The first punishment was imposed on account of loss caused by the driver, whereas the 2nd punishment was on account of the conduct of the driver which ended in conviction in a criminal case.
23.It was also contended by the learned counsel representing the State by relying upon the observation made in a Full Bench decision of this Court in Manikandan v. Chairman, T.N.Uniformed Services Recruitment Board – 2008(2) CTC 97 that doctrine of double jeopardy is allergic to service jurisprudence. We do not think that the observation made by the Full Bench in the context of the said case on the question as to whether at the entry point the State Government can debar a person to enter into service, even though he has been acquitted in a criminal case, by applying the doctrine of benefit of doubt, can be made applicable to the present case. As a matter of fact, in the very same Full Bench decision, it has been clearly recognized that there is always distinction between at the entry point into service and after entry into service.
24.As a matter of Fact in a Supreme Court decision reported in (2004) 13 SCC 342 – Lt.Governor, Delhi and others vs. HC Narinder Singh, the doctrine of ‘double jeopardy’ even in service matters has been recognised, as is apparent from the following observation in paragraph No.4.
“4.Reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. 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. We are not expressing any opinion on the ambit or scope of any rule.”
25.As a matter of fact, even in the decision relied upon by the counsel for the State reported AIR 2003 SC 1253 cited supra, the Apex Court, while recognizing the possibility of application of doctrine of double jeopardy in service jurisprudence, has held, in the peculiar factual situation in that case, that the causes of action for two different punishments were distinct and separate.
26.A question may crop up that even after a person is subjected to some insignificant punishment in a departmental enquiry, he may be imprisoned after being convicted in a criminal case based on similar set of allegations and, in such circumstances, whether it would be in the interest of administration to allow such person to continue in service. We do not think that the State or the department is remediless in such a situation. If a person, on account of his conviction is imprisoned and remains absent from service, he can always be penalised for remaining absent from duty. Even otherwise, a departmental authority or the State Government for that matter can always review the punishment by following the procedure contemplated under relevant service rules by altering the initial punishment to some higher punishment.
27.In the present case, the disciplinary authority himself has imposed the second punishment on the basis of the very same allegation of temporary misappropriation. Such order of the disciplinary authority cannot be considered as an exercise of power of review of punishment, inasmuch as such punishment has been imposed beyond the period of limitation contemplated under the relevant service rules.
28.For the aforesaid reasons, we are unable to sustain the subsequent order of dismissal passed by the very same disciplinary authority. The question as to whether the initial punishment deserves to be reviewed by any competent authority is a matter left open, as such a question has not arisen either directly or indirectly in the present case. No costs.
gr/gb/dpk
To
1.District Revenue Officer,
2.Virudhunagar, Virudhunagar District.
3.The Revenue Divisional Officer,
Aruppukottai,
Virudhunagar District