THANKAPPAN UNNITHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS challenge a common order, Ext. P6 in o. P. 3932/88, imposing punishments on them in disciplinary proceedings.

(2.) PETITIONER in O. P. 3932/88 was an Excise Inspector, while petitioners in O. P. 3138 and 3176 of 1988 were Preventive Officers in the same department. On the allegation that they misappropriated part of the compounding fee, realised in some cases, disciplinary proceedings were initiated against them. An enquiry was held. Ext. P1 (a) is the enquiry report. Accepting the report of enquiry, the disciplinary authority, Assistant Commissioner of Excise ordered barring of increments without cumulative effect, in the case of all petitioners. PETITIONER in O. P. 3176/88 did not appeal against the punishment, while petitioners in O. P. 3138 & 3932 of 1988 filed appeals before the Deputy Commissioner of Excise. The appeals were dismissed by Ext. P2 order (O. P. 3932/88 ). PETITIONERs left matters at that, and suffered the punishment. Endorsements were made in their service books, to that effect.

(3.) COUNSEL for petitioners submitted that this is an instance of double jeopardy. The roots of this principle are found in a well established rule of English Law. It finds expression in the maxim, "nemo debet bis vexari" - a man must not be put twice in peril for the same offence. He can plead as a complete defence, his former acquittal or conviction. This rule is embodied in Art. 20 (2 ). The Article guarantees immunity against 'prosecution and punishment for the same offence', for a second time. In the case on hand, there was no prosecution or punishment. However, postulates of fair action, require that a person ought not to suffer the same consequence twice. In K. R. Deb v. Collector of Central Excise (AIR 1971 s. C. 1447), the Supreme Court held that the Government had no power to set aside an enquiry, and order another enquiry in its place. Government may differ from the findings made by the disciplinary authority and reach a different conclusion on the same facts. It cannot hold another enquiry and reach another conclusion. In the case on hand, the Government took a different view, on different material, wiping out the earlier proceedings leading to Ext. P10 (O. P. 3176/88 ). It was held by this court also, that a de novo enquiry cannot be ordered, erasing the earlier enquiry and the findings reached therein (All v. State - (1976 KLT 29 & Kesavan Namboodiri v. State (1982 KLT 512 ). COUNSEL for petitioners relied on the decision in Rangachari v. Secretary of state (AIR 1937 P. C. 27) also. Rangachari's case turned on different facts. The official had been granted invalid pension. Subsequently, the authority converted that order into one of removal. There could be no removal after an official ceased to be in service by the grant of invalid pension. The judicial committee observed that, in a case, where the competent authorities had arrived honestly at one decision, their successors in office could not arrive at another conclusion, after the decision had been acted upon and was in effective operation. If on the basis of Ext. P1 (a) enquiry report government thought that a stringent punishment than that imposed by the disciplinary authority was called for it was entirely free to impose a punishment, that in its opinion was proper. But, that is not what it did. The Government reopened the matter, held another enquiry and came to an independent conclusion. Principles of fair-play interdict such a course.