Jammu & Kashmir High Court
Surinder Singh Pathania vs . State Of J&K And Anr. on 25 April, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
S. No. 12
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 1761/2008
Date of order: 25.04.2019
Surinder Singh Pathania vs. State of J&K and anr.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearance:
For the Petitioner/Appellant(s) : Mr. Ashok Parihar, Advocate
For the Respondent(s) : Mr. C. M. Koul, Sr. AAG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
(Oral)
1. The petitioner is aggrieved and assails the Show Cause Notice issued by the Under Secretary to Government, ARI & Trainings Department vide his No. 25-SP/2001 dated 04.12.2008, whereby the petitioner has been asked to explain his position as to why the punishment under the J&K Employee Conduct Rules be not awarded to him. Before dealing with the grounds of challenge urged by the learned counsel for the petitioner, it would be appropriate to note the factual antecedents leading to filing of this writ petition.
2. Admitted facts as can be culled out from the pleadings of the parties are that on 07.04.2006, a complaint of sexual harassment was received by the Director, Stationery and Office Supplies from one woman, an Orderly, Sub- Stationery Depot, Kathua against the petitioner. The Director, Stationery and Office Supplies directed the Assistant Director, Stationery and Office Supplies, Shri R. S. Jamwal to conduct preliminary inquiry into the matter. The said officer conducted the preliminary inquiry and found that the allegations of misbehavior SWP No. 1761/2008 Page 1 and sexual harassment made by the woman were prima facie correct. On the basis of the preliminary report submitted by Mr. R. S. Jamwal, Assistant Director, Stationery and Office Supplies, cognizance was taken by the Director, who vide his office order No. DSS/02 of 2006 dated 07.04.2006 placed the petitioner under suspension and ordered detailed enquiry into the matter after associating the lady officer, namely, Smt. Sunita Sethi, Assistant Director, Stationery and Office Supplies, Jammu with the victim. It further transpires from the record and the pleadings of the parties that the petitioner was charge sheeted on 11.05.2016 and was asked to submit his reply to the charge sheet. The petitioner submitted his reply to the charge sheet, which was not found satisfactory and accordingly, the Inquiry Officer recommended the case of the petitioner for awarding of appropriate punishment under the J&K Employees Conduct Rules.
3. While the matter was under consideration with the Administration Department, the complainant and the accused official reportedly entered into some amicable settlement. As a result, the complainant on oath affirmed that she had no objection, if the departmental inquiry against the petitioner was dropped. The competent authority of the Government appears to have taken lenient view and accordingly, imposed minor punishment of 'censure' on the petitioner and warned him to remain careful in future while dealing with his subordinate officials especially women. The suspension of the petitioner was also revoked and the period of suspension was treated as on leave and the petitioner was re-instated with immediate effect. This was done vide Government Order No. 09.ARI of 2007 dated 13.06.2007 issued by the respondent No. 1. The petitioner has accepted the aforesaid order and has not raised any grievance.
4. It appears that while the matter had been set at rest and the inquiry initiated against the petitioner had been finalized, the Under Secretary to Government ARI & Trainings Department issued fresh Show Cause Notice to the petitioner to explain his position as to why penalty under the J&K Employee Conduct Rules be not awarded to him. It is this Show Cause Notice issued by the SWP No. 1761/2008 Page 2 Under Secretary dated 04.12.2008, which is the subject matter of challenge before this Court.
5. The petitioner has assailed the impugned Show Cause Notice primarily on the ground that the petitioner cannot be vexed twice for the same cause. It is urged that the allegations against the petitioner leveled by the lady official have been thoroughly investigated and enquire into by the Inquiry Officer and on the basis of the recommendations of the Inquiry Officer and taking note of the subsequent development i.e. amicable settlement between the complainant and the petitioner, the punishment of 'censure' was awarded. Neither the petitioner nor the complainant has ever raised voice against the aforesaid order, which has since attained finality. It is, thus, urged that the Under Secretary to Government, ARI & Trainings Department has no authority to issue second Show Cause Notice calling upon the petitioner to explain his position as to why another punishment under the J&K Employee conduct Rules be not awarded to him. It is, thus, submitted that the impugned Show Cause Notice is hit by the doctrine of double jeopardy.
6. Per contra, Mr. C. M. Koul, Sr. AAG appearing for the respondents submits that the impugned notice is only in the nature of Show Cause Notice, which gives ample opportunity to the petitioner to explain his position and, therefore, he can take all these pleas, which he has taken in this writ petition before the competent authority. He further submits that Show Cause Notice does not violate any rights of the petitioner and possibly upon the explanation, as may be tendered by the petitioner, authority takes a view, which is favourable to the petitioner. He, therefore, submits that the writ petition deserves to be dismissed being premature.
7. Having heard learned counsel for the parties and perused the record, I am of the considered view that the second Show Cause Notice on the basis of self- same enquiry, cannot be sustained. The petitioner has already been awarded penalty of 'censure' and warned to remain careful in future. This order has been passed by the Government and not by any other authority subordinate to the SWP No. 1761/2008 Page 3 Government. When the Government has taken an informed decision as to the adequacy of the penalty to be imposed, it would not be in the province of the Under Secretary to the Government to take a contrary view and issue a fresh show cause notice on the basis of the findings of the same inquiry, which has since been finalized by the Government. Doing this would amount to reviewing of the order of the Government by the Under Secretary of the Government, which in any case, is not permissible under law. That apart, I am persuaded to agree with the argument raised on behalf of the petitioner that the impugned Show Cause Notice is hit by the doctrine of double jeopardy. He has already faced inquiry and on the basis of inquiry, the competent authority has imposed penalty as was thought fit in the facts and circumstances of the case. Neither the petitioner not the complainant ever raised any voice against the decision of the Government. The decision of the Government, thus, attained finality and the same has also been given effect to. In such circumstance, issuing second Show Cause Notice without indicating the reasons as to why the earlier punishment awarded was found to be insufficient would be sheer abuse of power by the authority concerned.
8. From the perusal of the Show Cause Notice, it would clearly transpires that the authority which has issued the Show Cause Notice was either not aware that enquiry has already been finalized and the petitioner has been penalized or he has deliberately withheld the same in the notice. I leave it to the competent authority to examine it but, in these circumstances, the impugned Show Cause Notice cannot be held to be legally valid and sustainable under law.
9. It is not the case of the respondents that the competent authority either on the application of the complainant or suo moto has decided to review its earlier order of imposing punishment of censure upon the petitioner and that being so, the impugned fresh Show Cause Notice to inflict another punishment for the same cause, would be sheer abuse and colourable exercise of power by the authority.
10. For the aforementioned reasons, I found merit in the writ petition. The same is, accordingly, allowed and the impugned Show Cause Notice is hereby SWP No. 1761/2008 Page 4 quashed. The respondents, however, are left free to proceed in the matter, if it is so desired, strictly in accordance with law. In view of the quashment of impugned Show Cause Notice, the respondents shall consider release of retiral benefits, if any, payable to the petitioner, within a period of two weeks from the date of receipt of copy of this order.
11. The writ petition is disposed of in the above terms.
(Sanjeev Kumar) Judge Jammu 25.04.2019 Karam Chand KARAM CHAND 2019.04.29 16:43 I attest to the accuracy and integrity of this document SWP No. 1761/2008 Page 5