GIRISH CHANDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Manoj Kumar Singh, learned Counsel for the petitioner and the Standing Counsel for the respondents No 1 to 4 2. The petitioner by means of this writ petition has challenged the order of his removal from service dated 24. 8. 2005 and the appellate order dated 5. 4. 2006 rejecting his appeal thereafter. 3. The petitioner is a Sub-Inspector (GRP) in the Police Department. On a complaint made by his wife Smt. Savitri Devi that the petitioner has remarried and is living with one Smt. Usha Singh as husband and wife, a fact finding enquiry was set up against him. On the basis of the fact finding enquiry a departmental enquiry was instituted against the petitioner and an enquiry officer was appointed. The enquiry officer issued a charge sheet on 19. 9. 2003 to the petitioner and after considering the explanation of the petitioner submitted his report dated 11. 6. 2004. The enquiry officer held the petitioner guilty on two counts namely (1) bigamy under Rule 29 of the U. P. Government Servants Conduct Rules, 1956 and (ii) misconduct under Rule 3 (2) of the aforesaid Rules. The enquiry officer thus recommended for the dismissal of the petitioner from service. The disciplinary authority on the basis of the aforesaid enquiry report issued a show cause notice to the petitioner and ultimately vide order dated 24. 7. 2004 exonerated the petitioner from the aforesaid charges. It appears thereafter another show cause notice was issued to the petitioner on 14th May 2005 as the petitioner has added the names of his two sons from his alleged second wife Smt. Usha Singh for the purposes of GPF in the nomination paper. In pursuance of this show cause notice the petitioner was awarded a censure entry vide order dated 22nd August, 2005 by the disciplinary authority. However, another show cause notice on the basis of same enquiry report dated 11. 6. 2004 was issued to the petitioner as to why he should not be removed from service as his conduct on account of his living with alleged second wife Smt. Usha Singh is unbecoming of a police officer under Rule 3 (2) of the Rules. The petitioner replied to the said show cause notice and contended amongst other that the matter is already over and therefore the show cause notice is hit by principle of double jeopardy. Ultimately, the pleas raised by the petitioner did not find favour with the disciplinary authority and an order of removal of the petitioner from service was passed on 24. 8. 2005. Against the removal order the petitioner preferred an appeal under Rule 20 of the U. P. Police Officers of Sub ordinate Rank (Punishment and Appeal) Rules, 1991. In appeal a specific ground was raised that the punishment imposed upon the petitioner is unlawful as for the same cause of action he had been exonerated. However, the appeal also came to be rejected vide order dated 5. 4. 2006. 4. Hence, the writ petition. 5. The first submission of the learned Counsel for the petitioner is that in respect to the alleged misconduct, the petitioner was awarded censure entry Therefore, he could not have been removed from service on the same very charge. A careful reading of the order awarding censure entry establishes that the said censure entry was given to the petitioner for a different misconduct. The petitioner was found guilty of some interpolation in the nomination papers of his GPF as he had added the names of his two sons from his alleged second wife Smt. Usha Singh for the purpose of nomination, this censure entry was not in relation to his misconduct for living with the alleged second wife. Therefore, this submission is misplaced and fails. 6. Secondly, it has been contended that the petitioner is not guilty of any misconduct so as to warrant his removal from service. In support learned Counsel for the petitioner has relied upon two decisions of this Court reported in (2001 )2 UPLBEC 1354, Pravina Solanki v. State of U. P. and others and 2002 (1) ESC 341 (All), Shahjahan Khan v. State of U. P and others. 7. In the first case the Division Bench of this Court had held that for imposing any punishment on the ground of misconduct it is necessary that the misconduct should take place in discharge of the official functions. In that case the charge was against a lady constable that her conduct was not good enough to retain her in service as she was found sleeping on the same bed in her house with some other man. She was dismissed from service on that ground. However, the dismissal was set aside by the Court as the misconduct alleged was not during the course of duty. . 8. In the second case cited above the Court held that mere living with another women is not sufficient to establish second marriage or bigamy. Therefore, dismissal from service on the ground of misconduct of bigamy was quashed. 9. The basic submission which requires consideration in this petition is as to whether the petitioner who has been exonerated by the disciplinary authority vide order dated 24. 7. 2004 on both the charges of bigamy and misconduct can be punished again for one of the charges from which he has been absolved earlier. Admittedly, as per the record only one disciplinary enquiry was held against the petitioner. The enquiry officer had recommended dismissal of the petitioner on both the grounds, i. e. , on the ground of bigamy under rule 29 of the Rules and misconduct under Rule 3 (2) of the Rules. The disciplinary authority considering the enquiry report disagreed with the recommendations and held that the petitioner had not entered into second marriage and therefore no punishment is liable to. be inflicted upon him. He accordingly absolved the petitioner from all the charges, meaning thereby that the petitioner was not held guilty either of bigamy or of any misconduct. Accordingly, the said enquiry report became dead and the matter stood closed. 10. It is settled legal position that no person should be vexed twice for the same cause of action. The said principle is contained in Article 20 (2) of the Constitution of India and is fundamental to criminal jurisprudence. Though Article 20 (2) of the Constitution of India does not apply to departmental proceedings but nonetheless the doctrine of double jeopardy or the principle that no one should be vexed twice for the same cause of action is equally applicable to cases of depart mental punishment. Thus, where the competent authority has already arrived at one decision on the basis of same charges on the conclusion of enquiry and a punishment though minor in nature or no punishment has been imposed, the authority or its successor cannot subsequently reopen the matter and inflict an other order of punishment especially without cancelling, revoking or rescinding the earlier order. In the instant case it is admitted that the petitioner was exonerated from both the charges of bigamy and misconduct. The said order is intact and has not been recalled, cancelled or revoked. In the case of Ganga Din v. UPSRTC and others, 1992 AWC 1484 this Court applying the principle contained in Article 20 (2) of the Constitution of India held that where an employee has been charge sheeted but on taking the lenient view he was reinstated, it was not open for the employer to punish him for the same incident. Recently a Division Bench of the Punjab and Haryana High Court in the case of Lila Singh v. Punjab State Electricity Board and others, 2006 Lab. l. C. 1491 held that where an employee had already been punished by forfeiting one year, it was not competent for the authorities to have passed an order of termination by reopening the whole proceedings and punishing him for the same cause of action as it amounted to punishing him twice for the same misconduct. 11. In my opinion the enquiry report dated 11. 6. 2004 has outlived its life. It stood exhausted once the disciplinary authority decided to disagree with its recommendations and absolved the petitioner. Subsequent thereto the issuance of the show cause notice on the basis of same enquiry report was unwarranted. In view of the above, the submission of the learned Counsel that once the petitioner has been exonerated by the disciplinary authority the respondents were not competent to award any punishment to the petitioner much less the punishment of removal from service which is highly excessive, deserves to be accepted. 12. Apart from the above, the appellate authority has also not dealt with the issue of 'double jeopardy' which was specifically raised by the appellant it. It has only referred to the same but has not considered it while dismissing the appeal. Therefore, the order of the appellate authority is bad for non consideration of the material and the specific ground taken by the petitioner. 13. Since the writ petition succeeds on the above ground, it is futile to go into the issue of the severity of the punishment in comparison to the offence. The writ petition is allowed. Both the appellate orders dated 5. 4. 2006 and the order of punishment dated 24. 8. 2005 are hereby quashed. Let a writ of certiorari be is sued accordingly. No order is passed as to costs. .