Allahabad High Court
Vinod Kumar Katheria vs State Of U.P. And Others on 19 February, 2016
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- WRIT - A No. - 38583 of 2011 Petitioner :- Vinod Kumar Katheria Respondent :- State Of U.P. And Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare,H.M. Srivastava,Neeraj Srivastava Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as learned Standing Counsel and perused the record.
Pleadings have been exchanged between the parties and with their consent, the present petition is being disposed of at this stage itself.
The petitioner, who was working as Lekhpal in District- Mahawatpur, has come up challenging the order of termination dated 7.2.2009 passed by the Deputy District Magistrate, Karhal, Mainpuri, appellate order of dismissal from service dated 15.1.2010 passed by the District Magistrate, Karhal, Mainpuri and the revisional order dated 20.6.2011 passed by the State Government affirming the order of punishment.
Submission of learned counsel for the petitioner is two folds; one, that the order of punishment amounts to double jeopardy as the petitioner had already been awarded punishment for his misconduct by which he was reverted back to basic pay-scale and was awarded censure entry and second, in any case, the punishment awarded is disproporationate to the charges levelled against the petitioner.
Vide order dated 31.3.2005, while the petitioner was working as Lekhpal Circle Mahawatpur, Tehsil Bhogaon was issued chargesheet and ultimately after conducting inquiry proceedings, he was reinstated in service reverting him back to basic pay-scale with censure entry. Subsequently, petitioner was given chargesheet dated 1.7.2008 whereby seven specific charges were levelled against him and he was granted time to submit reply. After fullfledged inquiry proceedings were conducted, the Inquiry Officer filed a detailed inquiry report dated 9.12.2008. Subsequently, the petitioner was issued a show cause notice dated 17th December, 2008 to which he submitted his reply. After considering the reply of the petitioner, the inquiry report and the evidence on record, the appointing authority, Deputy District Magistrate (SDM), Karhal, District Mainpuri dismissed him from service vide order dated 7.2.2009, which was affirmed by appellate and revisional authorities as already noted.
Learned counsel for the petitioner has submitted that once the petitioner had already been punished by reverting back to the petitioner to a minimum pay-scale and by awarding censure entry. It is a case of double jeopardy as he has already been awarded punishment.
Insofar as first submission of learned counsel for the petitioner about double jeopardy is concerned suffice to say in a recent judgment of Hon'ble Apex Court rendered in Union of India vs. Purshottamm, (2015) 3 SCC 779, it has been held that principle of double jeopardy is not attracted in the case of departmental proceedings. Paragraph 13 of the aforesaid judgment is quoted as under:-
""12 .The US Supreme Court has extensively excogitated over the conundrum as to what constitutes a successive "punishment" for the purposes of attracting Constitutional protection against Double Jeopardy, under the 5th Amendment. The Court, in John Hudson v United States, 522 U.S. 93 (1997), affirmed the distinction between civil punishment and proceedings and criminal punishment and prosecution, and held that the Fifth Amendment proscribes two (or more) successive punishments or prosecutions of a criminal nature only, and permits civil punishment or proceedings either preceding or succeeding a criminal prosecution or punishment. In the case before the U.S. Supreme Court, John Hudson was the Chairman of the First National Bank of Tipton and the First National Bank of Hammon, and used his position to regain bank stock he had used as collateral on defaulted loans through a series of bank loans to other parties. Upon investigation the Office of the Comptroller of Currency (OCC) found that the loans were made in violation of several banking statues and regulations. The OCC fined and debarred Hudson for the violations. Later, he faced criminal indictment in the Federal District Court for violations tied to those same events. Hudson objected, arguing that the indictment violated the Double Jeopardy clause of the 5th Amendment. Overruling United States v. Halper, 490 U.S. 436 (1989), wherein the Court had ruled as unconstitutional successive proceedings taking place in similar circumstances to Hudson's case, the Court in Hudson reaffirmed the distinction established between the "civil" and "criminal" nature of the particular successive punishment, in United States v. Ward, 448 U.S. 242 (1980). The U.S. Supreme Court thus held in Hudson's case that the Double Jeopardy clause did not preclude his subsequent criminal prosecution, because the OCC administrative proceedings were civil, not criminal. Inter alia, the civil nature of the punishment was ascertained with reference to the money penalties statutes' express designation of their sanctions as "civil". This reference indubitably eases the resolution of the Double Jeopardy question in the present Appeal. As has been detailed earlier, Article 20(2) does not within it imbibe the principle of autrefois acquit. The Fifth Amendment safeguards, inasmuch as it postulates both autrefois acquit and autrefois convict, could have been interpreted to prohibit civil punishment even in the wake of an acquittal in prosecution, but was not found by the U.S. Supreme Court to do so. A fortiori Article 20(2), which contemplates "prosecuted and punished" thus evincing the conscious exclusion of autrefois acquit, palpably postulates that the prescribed successive punishment must be of a criminal character. It irresistibly follows that departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2)."
(Emphasis supplied) A reference may also be made to judgment of Hon'ble Apex Court in the case of Maqbool Hussain vs. State of Bombay AIR 1953 SC 325. Paragraph Nos. 11 and 12 whereof are quoted as under:-
"(11) These were the materials which formed the background of the guarantee of fundamental right given in Art. 20 (2). It incorporated within its scope the plea of "autrefois convict"as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
(12) The words "before a Court of law or judicial tribunal" are not to be found in Article 20 (2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Art. 20 (2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorized by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art. 20 and the words used there:- "convicted", "commission of the act charged as an offence," "be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure."
As such, first contention of learned counsel for the petitioner regarding double jeopardy is liable to be rejected.
Even otherwise, nature of charges levelled against the petitioner assumes importance to find out as to whether the peitioner was again subjected to punishment for the same charges. Although the chargesheet dated 6th November, 2004 issued to the petitioner is not on record, however a perusal of order dated 31.3.2005 indicates that the Charge Nos. 1, 3 and 4 levelled against the petitioner were regarding disobedience of the orders of the higher authorities. Charge Nos. 2 and 5 were also to the same effect. Charge No. 6 is to the effect that the petitioner is not residing in his area and he is living at a different place. Holding charges against the petitioner fully proved, he was reverted back to the basic pay-scale and a censure entry was awarded to the petitioner.
Perusal of the chargesheet dated 1.7.2008 indicates the same is in regard to the illegalities committed by the petitioner during 30.8.1998 to December, 2006 and December, 2006 to 31.7.2007. Specific charges, which are serious in nature, have been levelled against the petitioner. Charge Nos. 1, 2, 4 and 5 are to the effect that he had issued false certificate and have made false entries in the revenue record in the name of various persons. Charge No. 3 is to the effect that the land recorded in the name of Gram Samaj was illegally mutated in the name of his wife Smt. Rekha Devi and his mother-in-law, Smt. Anita Devi as transferable tenure holder. Charge No. 6 is to the effect that he had issued a cheque of Rs. 90,000/- in favour of one Siya Ram Baghel towards purchase of building material for construction of school building in the name of his wife, Smt. Rekha (known as Dayal Memoria School), which was dishonoured and thus had played fraud with Siya Ram and had threatened Siya Ram and his son Laxmi Chand that he will lodge prosecution under SC/ST Act. Charge No. 7 is that in spite of transfer order dated 31.7.2007, he did not hand over charge of Circle Sansarpur and absconding with official records for which a First Information Report was also lodged. Undisputedly, a fullfledged enquiry was conducted in which opportunity of hearing was granted to the petitioner.
In view of the fact, charges levelled against the petitioner were different in the chargesheet dated 6th November, 2004, which ultimately led to order dated 31.3.2005 whereby petitioner was reverted back to pay-scale and a censure entry. Apart from this, charges levelled against the petitioner by chargesheet dated 1.7.2008 are of very serious in nature and even one charge, specifically Charge No. 3 itself is sufficient for his dismissal from service.
As such, first contention of learned counsel for the petitioner is liable to be rejected on merits also in view of the above noted discussion.
Insofar as, second submission that the order of punishment from dismissing the petitioner from service is disproportionate in nature, suffice to say that the charges levelled against the petitioner were of serious in nature. As already noticed, Charge No. 3 levelled against the petitioner was to the effect that he had mutated names of his wife and his mother-in-law as transferable tenure holderby deleting the name of Gram Samaj in revenue record, which was found to be proved, alone is sufficient to attract dismissal from service.
In such view of the matter, I do not find that punishment awarded to the petitioner is disproportionate in nature.
Reference may be made in this regard to a judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610. Paragraphs 19, 20 and 21 of the judgment in the case of P. Gunasekaran supra are quoted as under:
"19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.
21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra)."
As such, for the discussion noted hereinabove, petition lacks merits and is, accordingly, dismissed.
Order Date :- 19.2.2016 LN Tripathi