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Judgment
This petition filed under Article 226 of the Constitution challenges the orders dated 28.09.2004, 24.03.2005, 20.12.2005 & 07.09.2007, whereby the
petitioner was punished and his certain appeals and mercy appeals were rejected. However, on the last mercy appeal, the appellate order dated
07.09.2007 (AnnexureP/17) was passed whereby the punishment of removal was modified by imposing punishment of compulsory retirement.
In short, the admitted facts between the parties are that petitioner was served with a charge-sheet for remaining unauthorizedly absent between
09.11.2002 to 05.02.2004. The stand of petitioner is that during the said period of absence, the petitioner was declared as absconder (Bhagoda) and a
notice to this effect was issued to him on 27.06.2003 (Annexure-P/2). By order dated 10.07.2003 (Annexure-P/3), the petitioner’s name was
struck off from the strength of unit. The petitioner made request for restoring his name and the department by passing orders dated 24.01.2004
(Annexure-P/4) and 03.02.2004 opined that such striking off the name from the roles without conducting departmental inquiry is not justifiable and
accordingly the order whereby petitioner’s name was directed to be deleted from the roles was recalled/cancelled. The petitioner was permitted to
join back the service.
On the strength of this order, Mr. Vijay Nayak, learned counsel for the petitioner submits that since petitioner was terminated by striking off his
name from the rolls of the department thereafter no further punishment for the same misconduct could be imposed. The subsequent punishment dated
28.09.2004 (AnnexureP/14) amounts to double jeopardy which hits Article 20(2) of the Constitution of India.
The second contention of learned counsel for the petitioner is that in the impugned order dated 28.09.2004 (Annexure-P/14) there is no finding that
petitioner remained absent willfully. By placing reliance on judgment of Supreme Court reported in 2012 (3) SCC 178, [Krushnakant B. Parmar vs.
Union of India & another] it is contended that without deciding the question whether absence is willful and based on compelling circumstances the
imposition of punishment is totally unwarranted. Thirdly, it is argued that in the punishment order, the respondents have considered the past record of
the petitioner, whereas in the charge-sheet there was no allegation regarding past record of the petitioner. Thus, punishment order stands vitiated on
this score alone. Reliance is placed on order of this Court passed in W.P. No.5340/2006 [Manoj Kumar Shukla vs. State of M.P. & others]. Lastly,
Mr. Nayak, learned counsel for the petitioner contended that appellate orders are not passed in consonance with the statutory requirements. The
appellate authority was required to pass reasoned and speaking order. He placed reliance on 2009 (4) SCC 240 [Chairman, Disciplinary Authority,
Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney & others].Â
Per-contra, Mr. G.P. Singh, learned G.A. for the State contended that the first order whereby petitioner was declared absconder and his name was
struck off from the strength of unit was cancelled on technical grounds. The said order was passed without following principles of natural justice and
without conducting domestic inquiry, therefore the said order was cancelled. Thus, aforesaid order, whereby petitioner’s name was removed from
the roles does not survive in the eyes of law and, therefore, the question of invoking doctrine of double jeopardy does not arise.
Mr. Singh, learned G.A. submits that for a long period between 09.11.2002 to 05.02.2004 the petitioner remained unauthorizedly absent. Petitioner
did not provide any material whatsoever to show the nature of ailment. Thus, the question of examining the aspect of willful absence is not relevant in
the present case. He supported the impugned punishment order and contended that past record is referred to by the disciplinary authority as a
reference and it will not effect the ultimate punishment. By placing reliance on 2011 (4) SCC 682, [Om Prakash vs. State of Punjab & others], Mr.
Singh submits that punishment of dismissal is held to be appropriate punishment where the delinquent employee is found guilty of habitual absence. In
the present case, the petitioner was dealt with leniently and his punishment was modified from removal to compulsory retirement. Hence, no
interference is warranted by this Court. On the strength of 1995 (6) SCC 749 [B.C. Chaturvedi vs. Union of India], it is argued that scope of judicial
review in case of departmental inquiry and punishment is limited. This Court is required to examine the decision making process and not the decision
itself. The strict principles of Evidence Act are not applicable in the case of departmental inquiry. If there is some evidence against the delinquent
employee, it is sufficient to inflict the punishment. The adequacy and sufficiency of evidence is beyond the scope of judicial review. The punishment
can be interfered with if it is shockingly disproportionate. No such ingredients are available in the present case. Hence, petition may be dismissed.
No other point is pressed by the parties.
I have heard the parties and carefully perused the record.
The allegations against the petitioner was that the leave was sanctioned to him between 25-10-2002 to 08-11-2002. The petitioner was required to
join duties on 09-11-2002. The petitioner neither joined duties nor gave any information about his ailment and absence. The petitioner was
unauthorizedly absent from 09-112002Â to 05-02-2004.
In the Charge-sheet, it is further mentioned that despite receiving various notices for joining duties, the petitioner did not join nor furnished any
information about his ailment. The petitioner filed reply and denied the allegations. The Disciplinary Authority was not satisfied with the reply and,
therefore, appointed an Enquiry Officer. The Enquiry Officer recorded the evidence and gave his report Annexure P/12 and found that the charge
against the petitioner is fully established. The Disciplinary Authority put the petitioner to notice and thereafter inflicted the punishment of removal from
service.
Indisputably, the scope of judicial review of departmental enquiry is very limited. The decision making process is the subject matter of judicial
review and not the decision taken thereupon.[See (1999) 1 SCC 759 (Apparel Expert Promotion Council vs. A.K. Chopra), (2007) 7 SCC 236 (Bank
of India vs. T. Jogram) and (2009) 8 SCC 310 (State of U.P. & Anr. vs. Manmohan Nath Sinha & Anr.)]
The first ground of attack is based on the doctrine of double jeopardy. Since the petitioner's name struck of from the strength/roll, it is argued that
subsequent punishment based on the same ground amounts to double jeopardy. In the present case, the petitioner was declared as an absconder and
his name was struck of from the strength. However, the authorities realized that the said decision was not taken in consonance with the principles of
natural justice and, therefore, cancelled the said order of striking of the name from the rolls. Thus, the first decision which was required to be taken
after a duly constituted departmental enquiry is taken in utter disregard to the principles of natural justice, the said order was recalled.
As per Constitution of USA, the protection from double jeopardy is held to be not only from punishment but also from a second trial, which
commences when a man is charged before a competent Tribunal. In Kasas vs. Hendricks, 521 US 346 (1997), it has been held that a soldier is not put
in double jeopardy by being tried by a second court material, after a first material had to be dissolved, owing to technical reasons before it could reach
a decision. The doctrine of double jeopardy was held to be a doctrine of “collateral estoppleâ€. In England [R vs. Barron (1914) 2 KB570] Court
held that a man may not be put twice in peril for the same offences. The fundamental principle behind the doctrine of double jeopardy can be found in
the judgment of house of Lords in Connelly vs. Director of Public Prosecution (1964) 2 AEr 401. However, in this jurisdiction also it was held that a
previous conviction can be effectively pleaded in bar (autrefois convict) where previous trial was before a Court of competent jurisdiction. In India,
the constitutional guarantee embodies the principle only of ‘autrefois convict’ and does not include the principle of ‘autrefois acquit.’ [See
AIR 1954 SC 375 (S.A. Venkataraman vs. Union of India]. In AIR 1966 SC 69 (Mohd. Shafi vs. State of West Bengal), it was held that the previous
prosecution must be followed and not null and void or abortive. In the case of Venkataraman (supra), it was pointed out by our Supreme Court that the
provisions Article 20(2) is narrower than the American doctrine of double jeopardy, according to which there may be jeopardy even though the person
was not actually punished in previous proceedings. The constitutional guarantee is available only if the accused is convicted and punished. The
Pakistan Supreme Court followed this principle in Mohd. Ashraf vs. State 1995 SCMR 626. The necessary ingredients for invoking Article 20 (2) are
that the person must be prosecuted and punished and as such proceeding must be before a Court of law or a judicial Tribunal. [See AIR 1953 SC 325
(Maqbool Hussain vs. State of Bombay)]
In the light of aforesaid, it is clear that the earlier order passed by the department dated 24-01-2004 cannot be a reason to hold that the
petitioner was subjected to double jeopardy because said order was canceled by order dated 03-02-2004 (Annexure P/5). A plain reading of this order
shows that the earlier decision of removing petitioner's name from roll was held to be illegal because it was passed without conducting departmental
enquiry. Thus, the first contention raised by Shri Nayak must fail.
The second contention is based on the judgment of Supreme Court in the case of K.B. Parmar (supra). The judgment of Parmar is based on the
interpretation of C.C.S. (Conduct) Rules, 1964. In Para 18 of this judgment, it is held that the Disciplinary Authority is required to prove that the
absence is willful and in absence of such finding, the absence will not amount to misconduct. In Regulation 192, the consequence of overstay of leave
is provided. In the departmental enquiry, the petitioner was unable to show that he informed the department about his ailment by submitting application
and medical documents. PW/3 Jafarullah Khan categorically deposed that after enjoying the sanctioned leave, petitioner remained absent for a
considerable longtime. Six notices were issued to him to submit his joining but the petitioner did not join the duties. He did not prefer any application
for extension of leave nor sent any information about his ailment. The petitioner did not cross examine the said witness despite getting opportunity. On
the strength of this, Inquiring Authority opined that the charges are found proved. Thus, in the peculiar facts of this case, the Enquiry Officer opined it
that absence of petitioner was willful. The Disciplinary Authority concurred with this finding. Thus, the aforesaid judgment of Parmar (supra) is not
applicable in the present case. Apart from this, in a recent judgment in WP. No.1074/12, this Court opined as under:-
“6. The first charge is relating to unauthorized absence of the petitioner without any intimation and permission. As per petitioner’s reply, it is
clear that the petitioner has not given any intimation about his absence and ailment. In the considered opinion of this Court, the petitioner was a
member of a disciplined police force. He remained absent from 22-02-2008 till the date of issuance of Charge-sheet. During this period of about seven
months admittedly, the petitioner has not given any intimation about his ailment nor apprised the department about the reason of his absence. He did
not pray for grant of leave during this period. The Enquiry Officer has given a specific finding that the petitioner should have informed the authorities
about his ailment while getting treatment. Thus, the Enquiry Officer opined that the Charge No.1 is proved. In my considered opinion, the leave cannot
be claimed as a matter of right. The M.P. Civil Services (Leave) Rules,1977 make it clear that if the petitioner was under treatment, in that case also
he should have informed the department. In absence of information and permission to remain absent, the absence of petitioner was rightly treated as
an unauthorized absence. Rule 6 of Leave Rules in clear words provides that “Leave cannot be claimed as of right†whereas sub-rule 2 of rule 6
envisages that in exigency of public service, leave of any kind may be refused or revoked by the authority competent to grant it. Rule 17 of the said
rules provides methodology for grant of leave of medical certificate to a government servant. Sub-rule 1 provides that an application for leave shall be
submitted, as far as possible, prior to or simultaneously with commencement of the period for which leave is applied. In exceptional circumstances
where it is not reasonable/practicable for the employee to submit an application within time limit, it may be submitted not later than seven days from
the date of commencement of the period of leave applied for. Sub-rule 5 of rule 17 in no uncertain terms makes it clear that grant of medical
certificate does not in itself confer upon the government servant any right to leave. The medical certificate shall be forwarded to the authority
competent to grant leave. The nature of ailment of petitioner was not that grave which may be treated as exceptional circumstance for not submitting
application under sub-rule 1 of rule 17. In other words, in my view, it cannot be said that it was not reasonable/practicable for the petitioner to
submit an application as per sub-rule 1 of rule 17. In the case of Mohammad Ajam Khan Vs. State of Chhatisgarh-2015 SCC Online Chh.-847, the
High Court of Chhatisgarh considered the effect of rule 17 of the Leave Rules and opined that if an application is not submitted within this period, the
absence would be treated as unauthorized. Since in the present case, petitioner did not submit any application for leave on medical certificate in the
manner and within the time required under Rule 17, the disciplinary authority has rightly held him guilty of remaining unauthorizedly absent for the
period 14.6.1997 to 06.08.1997.â€
(Emphasis supplied)
No doubt, in the Charge-sheet there was no allegation against the petitioner relating to his past conduct. The Disciplinary Authority considered the
aspect of past conduct in the punishment order for the first time. This Court in Manoj Kumar Shukla (supra) has considered this aspect on the basis of
judgments of Supreme Court and remitted the matter back because the appellate order was also cryptic in nature. In the said case, the Appellate
Authority did not interfere with the punishment and passed a non speaking order which became reason for interference by this Court. In the present
case, although initial appeals of petitioner were dismissed, subsequently in mercy appeal the punishment was modified from removal to compulsory
retirement.
The impugned punishment order needs to be examined from yet another angle. The punishment order is not solely based on the aspect of past
conduct. It is founded upon other allegations which were duly found proved in the departmental enquiry. Thus, the question is whether because of a
partial illegality whereby Disciplinary Authority has taken into account the past conduct of petitioner, entire punishment order can be set aside. This
aspect is no more res integra. In AIR 1963 SC 779 (State of Orissa & Ors. vs. Bidyabhushan) a five judges Bench held as under:-
“The reasonable opportunity contemplated by Article 311 (2) has manifestly to be in accordance with the rules framed under Art. 309 of the
Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence
imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the
punishing authority, if there has been an enquiry consistent with the prescribed rules are not justiciable: nor is the penalty open to review by the Court.
If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not
for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no
jurisdiction if the findings of the enquiry officer or the Tribunal Prima facie make out a case of misdemeanour, to direct the authority to reconsider that
order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. â€
(Emphasis supplied)
This doctrine of severability of charges was again considered by Supreme Court in AIR 1967 SC 1353 (The State Of Maharashtra & Anr vs B.
K. Takkamore & Ors ), it was held that an administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it
be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the
basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be nonexistent or
irrelevant, can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing
grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.
It was further held the fact that “the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We
are reasonably certain that the State Government would have passed the order on the basis of the second ground alone. The order is, therefore, valid
and cannot be set aside.â€
The ratio decidendi of aforesaid cases was followed in (1998) 4 SC 310 (Union Bank of India vs. Vishwa Mohan) and it was held that “we are
again unable to accept the reasoning of the High Court that in the facts and circumstances of the case “it is difficult to apply the principle of
severability as the charges are so inextricably mixed up. If one reads the four charge-sheets, they all relate to the serious misconduct which includes
taking bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner
unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the
High Court has erred in holding that the principle of severability cannot be applied in the present case.†The he same principle was followed in (2010)
13 SC 494 (Punjab National Bak vs. K.K. Verma).
If the punishment order is tested on the anvil of doctrine ofseverability, it will be clear that even if this Court comes to the conclusion that the
impugned order of punishment is bad in law to the extent past record was taken into consideration, the remaining portion of the order does not require
interference. The remaining portion is founded upon grave charges of unauthorized absence of a member of disciplined force. The allegations are
serious and a member of disciplined cannot be permitted to remain absent without information and permission. Hence, this Court is unable to hold that
the punishment order based on the allegations of unauthorized absence is harsh or disproportionate in nature. It is not a case of killing a fly by using a
sledge hammer. Thus, no interference is warranted on this count also.
This Court will be failing in its duty if written synopsis filed by Shri Nayak are not taken into account. In this synopsis, it is submitted that the
petitioner was not given any chance to cross examine the prosecution witnesses. I wonder how this argument can be advanced for the first time by
way of written submissions. During oral arguments, no such point was raised. Pertinently, there is no ground in the petition in this regard. The
petitioner cannot be permitted to argue a point for which there is no foundation in the body of the petition.
In view of aforesaid analysis, I find no reason to interfere on the impugned orders. The petition is devoid of merits and is hereby dismissed. No
cost.