SANTOSH BARDEWA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The petitioner, S K Bardewa, was a permanent member of Sikkim State Civil Service and was working as Additional Secretary, Programme Implementation and Evaluation Department when disci phnary proceedings were initiated against him vide Memo No 538/GEN/DOP dated 5-6-1996 on the charge that while serving as Deputy Director, Information and Public Relation Department, Government of Sikkim he applied for and secured a loan of Rs 2 lakhs from the Sikkim Industrial Development and Investment Corporation Ltd , (SID1CO) Gangtok in his capacity as proprietor of M/s Himalchuh Hotel, Development Area and engaged himself directly in Trade and Business in violation of rule 16 of Sikkim Govt Servants (Conduct) Rules, 1981 Enquiry was conducted by Shri M.K.Pradhan who submitted his report on 24-1-1997 Annexure P-7 It appears from the report that no oral evidence was produced before the Enquiry Officer and he gave his findings on the basis of the documents placed before him He recorded the following findings (I) The petitioner had applied for loan for construciton of a hotel in the name of Himalchuh in Development Area after completing due formalities as per SIDICO requirements In the application he had stated himself to be the sole proprietor/partner/managing director of the concerned firm/company, (II) The petitioner stated vide item three of the affidavit that he was not an employee of the State Government or any institution controlled by the State Government and it was necessary that a senior government servant did not give wrong information to the effect that he was not a government servant even when he was holding a senior post in the Government, (III) Repayment of loan had been dismal resulting in the SIDICO approaching the court of Certificate Officer, Government of Sikkim to issue a certificate of public demand certifying that the petitioner S K Bardewa, proprietor Himalchuh Hotel, Development Area was liable to pay Rs 3,94,557 59 as due to SIDICO, the certificate holder, and (IV) No Objection Certificate issued by the Secretary, Information and Public Relations indicates only loan from SIDICO and does not specifically state that the loan was obtained for the purpose of construction of a hotel Futher the report stated

(2.) Shir S P Wangdi, learned Advocate General appearing on behalf of the respondents has taken a preliminary objection that the earlier petition brought by the petitioner having been dismissed as not pressed, the present petition is not maintainable under Order 23 Rule 1 of the Code of Civil Procedure On the other hand, Shir Manoj Chatterjee, Advocate appearing on behalf of the petitoner has sbumitted that the petitioner has been preju diced on account of the ill founded disciplinary proceedings, unsatisfactory enquiry report, the order of penalty which was imposed without furnishing a copy of the report and also unsat isfactory order passed in appeal He has further submitted that the fact that the petitioner was exonerated of the offence under section 168 of the Indian Penal Code gives a fresh cause of action to the petitioner He also submits that previous petition was not pursued in order to prevent prejudice in the Criminal Case and petitioner did not gain anything by with drawal of the previous petition

(3.) The question whether, after the with drawal of the first petition without obtaining the permission to bring a fresh petition on the same cause of action a second petition would he was authoritatively decided by the Supreme Court in Sarguja Transport Service v. S T A T where the court observed