Madhya Pradesh High Court
J.K. Ojha vs Union Of India And Ors. on 29 October, 2001
Equivalent citations: 2002(1)MPHT52
Author: A.K. Mishra
Bench: A.K. Mishra
ORDER A.K. Mishra, J.
1. Petitioner seeks in the instant writ petition quashment of the decision to initiate disciplinary action and to quash the order dated 11th December, 2000 to restrain respondents from proceeding in the matter and for other just reliefs.
2. Petitioner was posted as Commanding Officer of 342 Coy ASC (Supply) Type B. He was thereafter posted as Commanding Officer 890, Animal Transport Battalion. He handed over the charge to his successor on 25th November, 1997. The concession voucher book containing 100 pages was missing. Court of Enquiry was conducted against Rajdeep Thapa. Petitioner was called for deposing before the Court of Enquiry as a witness. In the Court of Enquiry, the competent authority found that the book was not handed over to Rajdeep Thapa while handing over the charge and an administrative enquiry was directed into the matter pertaining to the question of failure of the petitioner to report the loss of concession voucher book to the superior authority. Show cause notice was issued to the petitioner on 19th December, 1999. The petitioner filed a reply Annexure P-6. Thereafter on 17th June, 2000. an order of censure was passed for not informing the superior authority regarding loss of concession voucher book.
3. Subsequently, a decision was taken to institute departmental enquiry by the Addl. Director General, Discipline and Vigilance Adjutant General's Branch Army Headquarters, New Delhi in reference to Northern Command Headquarters letter dated 27th November, 2000. The attachment of the petitioner was ordered to 195 Field Regiment till the finalisation of disciplinary case against him. Petitioner challenges the order of attachment and institution of departmental enquiry which is in progress and most of the evidence has already been recorded as it was not stayed during pendency of the present writ petition which was filed on 7-2-2001.
4. Shri K.C. Ghildiyal, learned counsel for petitioner submits that it is the case of double jeopardy as the petitioner was proceeded on administrative side for missing of the concession voucher book. The charge could not be splitted up and disciplinary proceedings could not have been instituted on the same facts. He presses into service decision of the Apex Court rendered in the case of State v. Nalini, (1999) 5 SCC 253.
5. Smt. I. Nair, learned counsel appearing for the respondents submits that administrative enquiry was confined to a different fact of "failure to report" to the higher officer the factum of missing of the concession voucher book whereas the charges which are subject matter of the disciplinary proceedings are totally different. Thus, it cannot be said that on the same facts two enquiries are being conducted. She further submits that nature and scope of administrative enquiry and disciplinary enquiry are different. It is not a case of splitting up of the charges. In any case as the show-cause notice was confined to the fact of failure to report to the loss to the superior authority, it cannot be said that any enquiry into the charges levelled against the petitioner was done on administrative side. Thus, it is not a case of double jeopardy.
6. Maxim "nemo debet bis vexari pro eadem causa" means that no person should be twice vexed for the same offence. In the case of State v. Nalini (supra), the Apex Court laid down that when an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. A person cannot be vexed twice on the same set of facts and on the same charges. The second charge sheet which has been issued to the petitioner contains the first charge under Section 54(b) of Army Act. The second charge is under Section 57(d) of Army Act and third charge relates to the violation of Section 63 of the Army Act. The charges which are levelled against the petitioner in the undergoing disciplinary enquiry are quoted below:--
First Charge: Army Act, Section 54(b): Losing by neglect concession voucher book (IAFT-1720A). The property of Government, entrusted to him.
"In that he, at Chandigarh, between 10th May, 97 and 25th May, 97, while performing the duties of Officer Commanding, 342 Coy ASC (Sup) Type "B", which came to knowledge of authority competent to initiate action on 13 October, 1998, was found deficient of concession voucher book (IAFT-1720A) containing one hundred forms bearing machine number 91L-812100, the property of the Government entrusted to him.
Second Charge: Army Act, Section 57(d): Where it was his official duty to make a declaration respecting a matter knowingly making a false declaration.
In that he, at Chandigarh, on 25th November, 1997, while performing the duties of Officer Commanding 342 Coy ASC (Sup) Type "B", which came to knowledge of authority competent to initiate action on 13 October, 1998, at the time of handing over charge to IC-39503F Lieutenant Colonel Deepak Kumar Pun certified the correctness of Railway Warrants/Accountable forms held on the charge of his unit well knowing that the concession voucher book (IAFT-1720A) bearing machine number from 91L 812100 had been lost by him.
Third Charge : Army Act, Section 63 : An Act prejudicial to good order and military discipline.
In that he, at field, on 27 March, 2000, when examined as a witness at Summary of Evidence in respect of IC-46907M Captain Rajdeep Thapa improperly stated that the loss of concession voucher book first came to his knowledge in third week of February, 1998, which statement was, as he well knew, false."
7. The charge which was the subject matter of administrative enquiry is apparent from Paras 1 and 2 of show-cause notice (Annexure P-5) which is quoted below:--
SHOW CAUSE NOTICE "1. On perusal of the proceedings of the Court of Inquiry held to investigate into the circumstances under which concession voucher book No. 91L-812001 to 812100 containing 100 pages unused was lost from 342 Coy ASC (Sup) Type "B" Main Office in May, 97 the GOC 3 Inf Div has observed that you as OC, 342 Coy ASC (Sup) failed to report the loss of above referred CV book to your superior auth.
2. The Offg GOC 3 Inf Div has directed the undersigned to call upon you to show cause as to why adm action in terms of Army HQ Letter No. 32908/AG/DV-l dated 5 January, 89 should not be taken against you for the aforesaid lapse on your part."
8. On bare comparison of the subject matter of administrative enquiry and its scope, it is crystal clear that it was confined to failure to report the loss of concession voucher book to the superior authority. On this subject matter, departmental enquiry is not being conducted. It is totally on different charge of losing of the concession voucher book by neglect and knowingly making false declaration that at the time of handing over the charge and while being examined as a witness at summary of evidence against Capt. Raj Thapa deposing incorrectly that the loss of concession voucher book first came to his knowledge in third week of February, 98 which statement to the knowledge of the petitioner was false. These charges were not at all subject matter of enquiry, thus it cannot be said that administrative enquiry and disciplinary enquiry are having the same purpose. The bundle of facts which are required to be proved in the disciplinary enquiry are different than the one under administrative enquiry. Since the charges are different, different sets of facts are required to be gone into. It cannot be said that petitioner is being vexed twice for the same charge.
9. I find no merit in the writ petition. The same is dismissed. Cost on parties.
10. Writ Petition dismissed.