Union Of India ... vs Rayees-Ul-Haque And Another on 16 November, 2018

[Cites 10, Cited by 2]

Allahabad High Court

Union Of India ... vs Rayees-Ul-Haque And Another on 16 November, 2018

(Delivered by Hon'ble Manoj Misra, J.) The instant petition has been filed by Union of India through its Department of Railways along with officers of the Railway Department against the judgment and order 18.05.2012 passed by the Central Administrative Tribunal, Allahabad (for short the 'Tribunal') in O.A. No. 1093 of 2006 by which the original application filed by the first respondent (Rayees-Ul-Haque) was allowed; the major penalty charge-sheet dated 12.07.2004; removal order dated 31.01.2006; and the appellate order dated 16.06.2006 were quashed.

The relevant facts of the case are as follows: The first respondent was an Inquiry-cum-reservation clerk posted at Gorakhpur. A minor penalty charge-sheet was served upon him on 11.03.2004 alleging that from April 2003 to June 2003, he had issued 50 concession tickets on forged concession vouchers thereby causing loss to the Railways. The first respondent denied the allegations. After considering the reply, the Assistant Commercial Manager vide order dated 19.04.2004 imposed punishment of stoppage of next increment for a period of six months temporarily and directed for recovery of Rs.26,636/- from the first respondent in lieu of the loss suffered by the Railways. This order of punishment was not subjected to appeal by the first respondent. Thereafter, on 12.07.2004, the first respondent was served with a major penalty charge-sheet essentially on the same set of facts that is of issuing concessional tickets on forged concession vouchers, but by leveling other serious charges of misconduct.

Against issuance of major penalty charge-sheet, the first respondent filed a representation before the Senior Divisional Commercial Manager on 04.08.2004 by claiming that on the same set of facts two disciplinary proceeding cannot be drawn more so when the earlier proceeding has already been finalized.

In the meantime, on 13/16.08.2004, the Assistant Divisional Manager / Reviewing Authority exercising power under Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short Rules, 1968) gave notice to the first respondent to submit reply as to why the punishment imposed be not enhanced to one of reduction of pay to the minimum of basic pay for a period of two years without cumulative effect. The first respondent submitted his reply to the said notice. However, on 16.02.2005, the Reviewing Authority instead of proceeding further on the notice dated 13/16.08.2004, canceled the earlier charge-sheet of minor punishment dated 11.03.2004 as also the punishment order dated 19.04.2004 by reserving right to issue a fresh charge-sheet.

As already a fresh major penalty charge-sheet had been issued to the petitioner, the enquiry officer proceeded with the enquiry. Before the enquiry officer, the first respondent leveled allegation of bias and made a request for change of enquiry officer. The request of the first respondent to change enquiry officer was rejected on 12.08.2005. In the meantime, the enquiry officer directed the first respondent to submit his defense. The first respondent submitted his defense statement. The enquiry officer, thereafter, proceeded with the enquiry; recorded statement of witnesses; allowed cross-examination of the witnesses and submitted an enquiry report on 09.11.2005, which was supplied to the petitioner on 14.11.2005, against which representation was submitted on 28.11.2005. On 31.01.2006, by order of removal, the services of the first respondent were terminated. Against which the first respondent filed statutory appeal which was dismissed on 16.06.2006.

Aggrieved by removal from service as well as dismissal of his appeal, the first respondent filed O.A. No. 1093 of 2006.

On the basis of the pleadings and submissions made on behalf of the parties, the Tribunal framed four questions for determination: (i) Whether second charge-sheet on the same very charges which have already been looked into and punishment has been inflicted, the currency of the punishment has expired, can be issued? (ii) Whether the second charge-sheet can be issued without firstly recording the reasons as per own Circular dated 01.12.1993 which have force of law? (iii) Whether relied upon documents are to be provided to the delinquent officer or not? (iv) Whether once the delinquent has shown no faith in the enquiry officer, it was not incumbent on the higher authority to change the enquiry officer?

After framing the above issues, the Tribunal proceeded to examine the facts and compare the two charge-sheets, namely, one, dated 11.03.2004 (minor penalty charge-sheet) and, the second, dated 12.07.2004 (major penalty charge-sheet).

In the minor penalty charge-sheet dated 11.03.2004, it was stated that upon examination/inspection of the records it was discovered that, between April 2003 to June 2003, the first respondent had issued 50 concessional reservation tickets on forged concession vouchers amounting to Rs. 22,631/- which was indicative of his lack of devotion towards duty, which amounted to misconduct as per Rule 3.1 (i) and (ii) of Railway Servant Conduct Rules, 1966.

The second /major penalty charge-sheet alleged three acts of misconduct. The first was in respect of issuance of concessional reservation tickets on forged concession forms thereby causing loss of Rs.22631/-; the second was to the effect that by issuing 50 concessional reservation tickets on 50 forged concession forms the first respondent had disclosed his involvement with the gang of persons who traveled on concessional tickets using forged concession forms; and the third was that the first respondent issued concessional ticket for travel from Gorakhpur to Kota and back on a single forged concession form. On the basis of the aforesaid acts of misconduct, the petitioner was charged of exhibiting conduct unbecoming of a railway servant with doubtful integrity, which amounted to misconduct under Rule 3.1 (i), (ii) and (iii) of Railway Servants Conduct Rules, 1966.

The Tribunal concluded that in pith and substance the charges were same. Thereafter, it proceeded to notice a circular dated 01.12.1993, which is extracted below:

"2. That matter has been examined and it is clarified that once the proceeding initiated under rule 9 of Rule 11 of RS (D&A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue a fresh charge sheet subsequently the order canceling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge sheet fresh appropriate to the nature of the charges."

Upon finding that the two charge-sheets in pith and substance related to the same charge, the Tribunal took the view that as the second charge-sheet was issued during the life time of the first charge sheet and during the currency of punishment imposed on the first charge-sheet, it was not maintainable, particularly, when the currency of punishment was completed.

The Tribunal thereafter proceeded to notice the contentions made on behalf of the original applicant relating to fairness of the procedure adopted in the enquiry. In that regard, the tribunal noticed four submissions, namely, (a) that the request of the first respondent to summon Dr. Nadeem Arshad who had allegedly issued the concession vouchers, was turned down by the enquiry officer without any justification; (b) that the enquiry officer assumed the role of presenting officer and did not appoint a presenting officer which is mandatory as per Rules; (c) that statement of two persons, namely, Ashok Pathak and Suresh Gautam were used against the first respondent by recording them as witnesses of the first respondent; and (d) first respondent's request for change of enquiry officer was turned down by the enquiry officer himself. After noticing the aforesaid submissions, the Tribunal proceeded to observe that the above arguments have not been rebutted either in the counter-affidavit or in the arguments. Thereafter, the Tribunal proceeded to notice a number of law precedents. But, it did not specifically record any finding as to whether the enquiry stood vitiated on any of the aforesaid grounds.

In nutshell, the Tribunal proceeded to allow the original application of the first respondent by holding that the second charge-sheet was not maintainable as it was hit by principle of double jeopardy. In respect of the other points raised by the first respondent, the Tribunal did not record any finding. The concluding paragraphs no.13 and 14 of the order passed by the Tribunal are reproduced below:

"13. This can be viewed from another angle that the second charge sheet on the same set of allegation has been issued without firstly passing order withdrawing earlier, because second charge sheet was issued on 12.07.2014 and the order was issued on 16.02.2005 canceling the earlier charge sheet of minor punishment, therefore, it is clear that the action of the respondents is totally illegal as during the lifetime of the punishment inflicted pursuant to the first charge sheet, second charge sheet on the same allegations cannot be issued. This would also be hit by the principle of double jeopardy.

14. In the above narration of facts we hold that the impugned charge sheet dated 12.07.2014 (Annexure-A-3), order of punishment dated 31.01.2006 (Annexure-A-2) and order of Appellate Authority dated 16.06.2006 (Annexure-A-1) are not sustainable and are hereby quashed and set aside. No order as to costs"

Assailing the order of the Tribunal, the instant petition has been filed.

We have heard Sri Rajnish Kumar Rai for the petitioner and Sri Sanjay Kumar Om for the respondent no.1.

Sri Rajnish Kumar Rai, learned counsel for the petitioner, contended that the principle of double jeopardy would not be applicable on the facts of the case inasmuch as the two charge-sheets were fundamentally different from each other in the sense one related to imposition of minor punishment by treating the misconduct of the petitioner as lack of devotion towards duty and the other, which was based on additional material, reflected upon integrity of the first respondent thereby warranting major punishment. Otherwise also, there was no double punishment imposed upon the first respondent inasmuch as not only the minor punishment charge sheet but the minor punishment order dated 19.04.2004 was canceled by order dated 16.02.2005 by reserving the right to proceed afresh.

Sri Rai submitted that the circular dated 01.12.1993 relied upon by the Tribunal would be applicable in a case where the proceedings initiated under Rule 9 or Rule 11 of the Rules, 1968 are dropped. It is only when the proceedings are dropped, the disciplinary authority would be debarred from initiating fresh proceeding unless reasons for cancellation of the original memorandum or for dropping the proceeding are appropriately mentioned. It has been contended that in the instant case, the proceeding for imposing minor penalty was not dropped before issuance of major penalty charge-sheet. Rather, by that date, when major penalty charge-sheet was issued, proceedings for imposing minor penalty had concluded by imposition of punishment. Though, later, the reviewing authority, upon finding that already a major penalty charge-sheet had been served upon the first respondent, canceled the minor penalty charge sheet as well as the minor punishment order. Under the circumstances, the circular dated 01.12.1993 was not violated.

Sri Rai contented that for the principle of double jeopardy to apply, the incumbent should be charged, tried and punished for the same misconduct twice. In the instance case, the gravity of the misconduct reflected by the two charge-sheets was completely different from each other in the sense that in the first charge-sheet, there was no charge to suggest dishonest intention on the part of the first respondent which could cast a shadow on his integrity whereas in the second charge-sheet there was additional charge to doubt his integrity therefore the first charge-sheet was a minor punishment charge-sheet whereas the second was a major punishment charge-sheet for which the enquiry procedure was completely different. And, that apart, the proceeding under the first charge sheet was annulled completely and the order of punishment was canceled therefore the proceedings under the second charge sheet were not at all hit by the principle of double jeopardy. It has thus been contended that the view taken by the Tribunal that the second charge-sheet was hit by the principle of double jeopardy is manifestly erroneous and is liable to be set aside.

Sri Rai further contended that although Tribunal did notice the submissions made on behalf of the first respondent regarding alleged lapses in conducting the second enquiry but no concrete finding has been returned by the Tribunal in that regard as also nothing has been said as to whether by those lapses any serious prejudice was caused thereby vitiating the enquiry as well as the consequential action. He thus submitted that since the foundation of the order of the Tribunal that the second enquiry was hit by principle of double jeopardy is not legally sound, the order of the Tribunal deserves to be set aside and the matter remitted back to the Tribunal.

Sri Sanjay Kumar Om, learned counsel for the first respondent, has defended the order of the Tribunal by submitting that the thrust of the allegations in the two charge-sheets was issuance of concession tickets on forged T.B. Patients concession forms. The second and third charges added in the second charge-sheet were nothing but inferences drawn from the first charge, which was common in the two charge-sheets. Therefore, when the department had earlier taken a decision to adopt minor penalty procedure, and had imposed minor penalty by adopting such procedure, switching gears, after conclusion of earlier enquiry, and initiating major penalty enquiry followed by major penalty was not at all justified and the Tribunal was therefore justified in holding that the second charge-sheet and the consequential proceedings were hit by principle of double jeopardy.

Sri Om contended that although the Tribunal may not have returned a specific finding as regards lapses in the procedure adopted while holding the second enquiry but the contentions in respect of those lapses were noticed and it was also observed that there was no specific rebuttal of those contentions by the department either in their pleading or in their arguments. Under the circumstances, the order of the Tribunal does not call for any interference.

Sri Om further contended that even assuming that for procedural lapses, ordinarily, the matter is remitted back to the stage at which those lapses had occurred but such remission is not an inviolable rule inasmuch as the Court can notice the facts and circumstances of the case and mould the relief accordingly. In this regard, it was contended that the first respondent had suffered for more than a decade therefore remitting the matter back for a fresh enquiry, at this stage, would not be justified. He thus contended that as the first respondent had already served the minor punishment imposed under the first enquiry there would be no justification to reopen the enquiry by remitting the matter back to the stage of the enquiry or to the Tribunal.

In support of his submissions, Sri Om placed reliance on the following decisions:-

(i) Lt. Governor, Delhi and others v. HC Narinder Singh : (2004) 13 SCC 342. In this case, a Head Constable for the charge of dereliction of duty had been imposed penalty of reduction of pay by one stage without cumulative effect. Thereafter, the appointing authority issued a second show-cause notice proposing to remove his name from the promotion list. The apex court found that lack of devotion towards duty was the reason for the proposed action which was the subject matter of the earlier proceedings as well. It therefore held that the second proposed action was on the same cause of action and was not justified as it amounted to double jeopardy.

(ii) Canara Bank and others v. Swapan Kumar Pani and another : (2006) 3 SCC 251. In this case, a Bank Accountant was served with a charge-sheet. In the enquiry proceeding he was not found guilty of the charges and was accordingly exonerated. Thereafter, a second charge-sheet with almost identical charges was served upon him. The apex court found that the incumbent having been exonerated, no fresh charge-sheet could have been issued in absence of any statutory power in that regard.

(iii) Nand Kumar Verma vs State Of Jharkhand & Ors : (2012) 3 SCC 580. In this case, the apex court observed that where explanation of the incumbent rendered in response to the charges was accepted, there was no justification to initiate a departmental proceeding subsequently even though principle of double jeopardy may not apply. The apex court observed that there can be only one enquiry in respect of a charge for a particular misconduct unless for some technical or other reason, the first enquiry or punishment or exoneration is found bad in law, in which case a second enquiry could be initiated.

(iv) Decision dated 13.04.2018 passed by Division Bench of this Court in Writ A No. 4769 of 2013 (Union of India and others v. K.N. Upadhyay and others). In this case, the incumbent was punished for the charge by placing him in lower stage of pay and thereafter by initiating a second enquiry, he was inflicted with major punishment of removal from service. On that ground, the Division Bench held that no second enquiry was permissible on the same charges which had already been investigated and culminated in punishment inasmuch as second inquiry would be barred by the principle of double jeopardy.

We have considered the rival submissions and have perused the record carefully.

The main issue that arises for our consideration is whether in the facts of the case, the initiation of second enquiry would be justified in law or would be hit by principle of double jeopardy.

Before we dwell on the above issue it would be apposite for us to understand the principle of double jeopardy and its applicability in service jurisprudence. P. Ramanatha Aiyar's Advanced Law Lexicon states that the doctrine of double jeopardy is a protection against prosecution twice for the same offence. Article 20(2) of The Constitution of India adopts this principle though by limiting its applicability in a case where the accused has been both prosecuted and punished for the same offence previously. The American principle is that there may be jeopardy even though the person was not actually punished in the previous proceeding. Thus, the principle of double jeopardy has a twin role. One is to ensure that no one should be punished twice for the same offence. And the other is to ensure that no one should be prosecuted twice for the same offence.

How the doctrine of double jeopardy or the principles enshrined thereunder have been applied in service jurisprudence shall now be noticed by us with reference to decisions of the apex court noticed herein below:

a). In K.R. Deb v. CCE, (1971) 2 SCC 102, the issue that had come up before a constitutional bench of the apex court was whether there could be repeated directions for a fresh inquiry when after a proper inquiry the incumbent was exonerated from the charge. The apex court in that factual matrix, in paragraphs 10 to 13 of the judgment, as reported, observed as follows:

"10. A number of points have been raised before us but we need only mention one point viz that the Collector had no authority to appoint Shri K.P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order, dated February 13, 1962, was mala fide.

11. Rule 15(1) of the Classification and Control Rules reads as follows:

"(1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1950, no order imposing on a government servant any of the penalties specified in clauses (iv) to (vii) of Rule 13, shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided."

Clause (2) of Rule 15 provides for framing of charges and communication in writing to the government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under clause (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under clause (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice.

12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.

13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant."

(Emphasis Supplied)

b). In the case of Vijay Shankar Pandey v. Union of India and another: (2014) 10 SCC 589, the apex court noticed the law laid down by it in K.R. Deb's case (supra) and, in paragraphs 24, 25 and 26 of the judgment, as reported, observed as follows:

"24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the enquiry already undertaken and resort to appointment of a fresh enquiring authority (multi-member)? The issue is not really whether the enquiring authority should be a single member or a multi-member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. CCE, examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a Sub-Inspector, Central Excise (the appellant before this Court). The enquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another enquiry officer "to conduct a supplementary open inquiry". Such supplementary inquiry was conducted and a report that there was "no conclusive proof" to "establish the charge" was made. Not satisfied, the disciplinary authority thought it fit that "another enquiry officer should be appointed to inquire afresh into the charge".

25. The Court in K.R. Deb held that:

"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.

13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant."

(emphasis supplied) and allowed the appeal of K.R. Deb.

26. It can be seen from the above that the normal rule is that there can be only one enquiry. This Court has also recognised the possibility of a further enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the report submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry."

(Emphasis supplied)

(c). In State of Assam v. J.N. Roy Biswas, (1976) 1 SCC 234, the apex court in paragraph 3 and 4 of its judgment, as reported, while noticing the factual matrix of the case, observed/ held as follows:

"3. What is the conspectus of circumstances? A small veterinary official, a long enquiry for misconduct, a final direction cancelling suspension and reinstating him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the meanwhile ! No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official. Had he misappropriated government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by reopening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the disciplinary authority after the delinquent had once been absolved. The appeal must fail and is dismissed with costs.

4. We may, however, make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record."

(Emphasis Supplied)

d). In Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the apex court upon finding that the charge leveled in the second enquiry was not inquired into in the first inquiry, in paragraph 18 of the judgment, as reported, held as follows:

"18. We agree with the learned counsel for the respondent that if the charge which has been levelled under the memo dated 23-12-2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case, we are of the opinion that the charges levelled against the respondent under the charge memo dated 23-12-2003, had not been enquired into by any authority and he had not been exonerated on those charges. Hence we are of the opinion that it is not a case of double jeopardy".

e). In Kanailal Bera v. Union of India, (2007) 11 SCC 517, the apex court in paragraph 6 of the judgment, as reported, observed as follows:

"6. .................Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry."

The principles deducible upon a conspectus of the authorities noticed herein above as also cited by the learned counsel for the petitioner are: (a) that on the same charge, in absence of rule to the contrary, only one disciplinary inquiry is permissible unless for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law; and (b) that on the same charge an employee cannot be punished twice. However, in a given situation, it may be permissible to impose punishment as well as effect recovery of the losses caused to the establishment/ employer as a consequence of the misconduct on which punishment has been imposed. Such a recovery would not be hit by doctrine of double jeopardy as has been held by the Apex Court in Commr. Of Rural Development v. A.S. Jagannatham, (1999) 2 SCC 313.

Now, it would be appropriate for us to examine the relevant provisions of the Rules, 1968 that were admittedly applicable. Rules, 1968 prescribe the penalties that can be imposed on a railway servant and the procedure by which they could be imposed. Rule 6 of the Rules, 1968 provides for the penalties that can be imposed upon a railway servant. Minor penalties are enumerated in clause (i) to clause (iv) of Rule 6 whereas major penalties are enumerated in clause (v) to clause (ix) of Rule 6. Rule 9 of the Rules, 1968 provides for the procedure to impose major penalty whereas Rule 11 provides for the procedure to impose minor penalty. The two procedures are fundamentally different from each other in the sense that not only the form in which the charge sheet is to be drawn is different but the inquiry procedure is also fundamentally different. In a major penalty inquiry procedure, an oral enquiry is mandatory whereas in minor penalty inquiry procedure there is no such mandatory requirement of oral enquiry though the procedure as contemplated by Rule 9 can be adopted where the disciplinary authority is of the opinion that such inquiry is necessary. However appeal lies, under Rule 18 of the Rules, 1968, against both types of penalty.

Rule 25 of the Rules, 1968 confers power of review on certain authorities. It provides that reviewing authority may, at any time, either on his or its own motion or otherwise, call for the records of any inquiry and review any order made under these rules-

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit.

Proviso (b) of Rule 25 of Rules, 1968 provides that where the reviewing authority proposes to impose a major penalty specified in clauses (v) to (ix) of Rule 6 or to enhance the penalty imposed by the order under review, to any of the major penalties specified in those clauses, subject to the provisions of Rule 14, where no enquiry in the manner laid down in Rule 9, has already been held, no such order shall be passed except after consultation with the Commission where such consultation is necessary and unless such inquiry has been held, and a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (5) of Rule 10, has been given to the Railway Servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry. Proviso (c) to Rule 25 provides that subject to the provisions of Rule 14, the reviewing authority shall- (i) where the enhanced penalty which the reviewing authority proposes to impose, is the one specified in clause (iv) of Rule 6 and falls within the scope of the provisions contained in sub-rule (2) of Rule 11; and (ii) where an inquiry in the manner laid down in Rule 9 has not already been held, in that case, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit. Rule 14 of the Rules, 1968 enumerates those special cases, of the nature contemplated by the second proviso to Article 311 (2) of the Constitution of India, where holding of inquiry is not required.

A perusal of the relevant provisions of the Rules, 1968 would indicate that where a minor penalty charge-sheet has been served upon an incumbent, even the reviewing authority cannot impose major penalty unless and until the enquiry is held in the manner laid down in Rule 9 which is meant for a major penalty charge-sheet. But, to obviate the difficulty, proviso (c) of Rule 25 of the Rules, 1968 confers power on the reviewing authority to itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit. That apart, the reviewing authority, under Rule 25 of the Rules, 1968, on his own motion or otherwise, has power to confirm, modify, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed.

It has neither been shown to us nor we could find any specific provision in the Rules, 1968 which may lead us to the conclusion that the reviewing authority is barred from annulling the entire disciplinary proceeding taken on a minor penalty charge sheet while reserving right to initiate major penalty inquiry. We could also not find any restriction placed on the power of the disciplinary authority to issue a major penalty charge sheet with a separate / additional set of charges, on discovery of additional material, though they might have been drawn/ deduced from the same acts of misconduct that had formed basis of the previous charge sheet. Rather, from Proviso (c) to Rule 25 of the Rules, 1968 we find that Rules, 1968 enable holding of major penalty inquiry even where earlier minor penalty enquiry had been held, though upon directive of the reviewing authority.

In the instant case, from the record, we find that a minor penalty charge-sheet was issued to the first respondent and after obtaining response from the first respondent and following minor penalty procedure, minor penalty was imposed upon the first respondent on 19.04.2004. The first respondent did not file any appeal against the minor penalty imposed upon him. However, when additional material was collected, by leveling a more serious charge, a major penalty charge-sheet was issued to the first respondent on 12.7.2004. Even though the major penalty charge-sheet had been served upon the first respondent, the reviewing authority, on its own motion, on 13.08.2004 issued notice to the first respondent calling upon him to explain as to why his punishment be not enhanced. After receipt of reply from the first respondent, and upon discovering that already a major penalty charge-sheet had been issued, the reviewing authority annulled all proceedings relating to the minor punishment while reserving right to hold a fresh enquiry.

In that background, we have to consider whether in the facts of the case major penalty charge-sheet and all proceedings in pursuance thereof were hit by doctrine of double jeopardy.

In the instant case, the first charge-sheet only leveled the charge of lack of devotion towards duty whereas the second charge-sheet by elaborating on the acts of misconduct leveled the charge of exhibiting conduct unbecoming of a railway servant telling upon his integrity. Lack of devotion towards duty in a given situation may be reflective of negligence which, by itself, may not be, ordinarily, sufficient to impose major punishment. But, in a case, where the conduct reflects upon the integrity of the incumbent and is suggestive about his dishonest intention, major penalty could be imposed. As the charge in the second charge-sheet was more serious it was drawn as a major penalty charge sheet by detailing the evidence on which reliance was placed as also by elaborating the acts of misconduct from which it was deduced.

At this stage, it may be appropriate for us to observe that in the second charge-sheet, one of the alleged acts of misconduct was that on one concessional form, the first respondent issued concessional tickets for both to and fro journey from Gorakhpur to Kota. The order of the disciplinary authority reflects that such type of concessional ticket should not have been issued inasmuch as there was no justification for a person to move on concessional tickets back and forth at an interval of just few days. That apart, the order of the disciplinary authority suggests that the concessional forms on which the incumbent had issued concessional tickets carried common identification mark of the patient/ prospective passenger, which suggested that to complete the formality columns of the form were filled.

However, we may hasten to add that whether those findings/ observations of the disciplinary authority/ enquiry officer were justified or not is not being commented upon by us, inasmuch as, the Tribunal has not at all addressed the merits of the charge. But what is important to note is that the two charge sheets, though may be drawn from the same act(s) of misconduct that is of issuing concessional tickets on bogus forms, levelled qualitatively different charges. Hence, the basic ingredient for applicability of the doctrine of double jeopardy that there cannot be two inquiries on a same charge is lacking.

As we have already found that the charges in the two charge-sheets, although might have been drawn from the same acts of misconduct, were qualitatively different, the principle of double jeopardy would not be attracted. Likewise, it cannot be said that first respondent has been punished /prosecuted / proceeded twice for the same offence /charge. More so, because the earlier action taken against the first respondent, on minor penalty charge-sheet, was annulled by the reviewing authority while reserving right to proceed afresh. No doubt, there might have been recovery from the first respondent during the currency of the minor punishment but once the minor punishment was set aside that recovery could be reversed and substituted by subsequent order. Moreover, punishment coupled with recovery of the loss caused by the incumbent by his misconduct might not be hit by doctrine of double jeopardy (see Commr. of Rural Development (supra).

We may observe that the seriousness of a misconduct is dependent on the intention with which the same has been committed. An act when committed with different intentions would constitute different offenses. Issuance of concessional tickets on forged concession forms may be an act of negligence simpliciter or may be by design. When it is a consequence of mere negligence, it may not be visited with major penalty. But where the act is a consequence of dishonest intention then it partakes the character of a serious misconduct warranting major penalty. As, in the second charge-sheet, the charge leveled upon the petitioner is not of mere lack of devotion towards duty but is of exhibiting conduct unbecoming of a railway servant thereby telling upon his integrity, the charge leveled in the second charge-sheet, on the face of it, is qualitatively different from the one in the first. Hence, we are of the considered view, the doctrine of double jeopardy would not get attracted more so when the reviewing authority had annulled all actions on the first minor penalty charge-sheet.

The circular dated 01.12.1993 on which reliance has been placed by the Tribunal would not be applicable on the facts of the present case inasmuch as by the time the second charge-sheet was issued, there was no dropping of the proceeding on the first charge-sheet. Rather the first charge-sheet had already resulted in imposition of a minor penalty. Further, nothing has been shown to us that a major penalty charge-sheet cannot be separately issued if earlier a minor penalty charge-sheet had been issued. Moreover, we find that Rule 25 of the Rules, 1968 confers power on the reviewing authority to enhance the punishment and in case the punishment proposed is a major penalty for which the prescribed procedure has not been followed then either itself hold such inquiry or direct that such inquiry be held as per such procedure. Hence, in our view the circular dated 01.12.1993 would not render the second charge-sheet and the consequential proceeding in pursuance thereof null and void or hit by principle of double jeopardy, particularly, when the charges levelled in the second charge sheet were qualitatively different. The view taken to the contrary by the Tribunal is not legally justified.

The decisions on which reliance has been placed by the learned counsel for the petitioner would be no help to the petitioner for the reasons narrated below:-

(i) The decision of the apex court in HC Narinder Singh's case (supra) is not applicable to the facts of the present case inasmuch as in that case the incumbent had been imposed penalty of reduction of pay by one stage without cumulative effect and that penalty was not annulled and, thereafter, another notice was issued proposing to remove his name from promotion list. In that context, the apex court observed that second penalty based on same cause of action would amount to double jeopardy. Whereas, in the instant case, the first punishment has already been annulled therefore there is no double punishment as in HC Narinder Singh's case (supra).

(ii) In Canara Bank's case (supra), the incumbent was proceeded on the same charge earlier and was exonerated. Thereafter, on the same material, in absence of any statutory power in the Indian Railways Regulations, the second charge-sheet was issued interlinked with some new material. In that context, the apex court had taken the view that second charge-sheet was not justified in the facts and circumstances of the case. In the instant case, on the allegations made in the first minor penalty charge-sheet, the first respondent was found guilty but since upon discovery of further material, it was found that gravity of misconduct was higher and it reflected upon the integrity of the first respondent, a decision was taken to issue a second charge-sheet with a qualitatively different charge and, therefore, all actions taken under the first charge-sheet were annulled by reserving right to proceed afresh. In such a factual scenario, the apex court's decision in Canara Bank's case (supra) would not be applicable.

(iii) In Nand Kumar Verma's case (supra), the incumbent's explanation was accepted; the standing committee had dropped the entire proceedings after accepting the explanation; and thereafter a second inquiry was initiated. In that background, the apex court found that there was no justification for conducting a second enquiry on similar charges. While holding as above, the apex court had observed that even though the principle of double jeopardy is not applicable, the law permits only disciplinary proceeding and not harassment. In the instant case, the first respondent was never exonerated of any charge but was found guilty in the first minor penalty proceeding. Further, he did not undergo the rigors of a major penalty inquiry proceeding which is fundamentally different from a minor penalty inquiry, as we have already found while going through the Rules, 1968. Hence, it cannot be said that the second inquiry amounted to harassment. Under the circumstances, on the facts of the present case, the law laid down in Nand Kumar Verma's case (supra) would not be applicable.

(iv) The other decision, namely, of a Division Bench of this Court in Writ A No. 4769 of 2013, dated 13.04.2018 (Union of India and others v. K.N. Upadhyay and others), which has been relied upon by the learned counsel for the first respondent, is not applicable on the facts of the present case inasmuch as there, after following due enquiry procedure, punishment was imposed and during currency of the punishment, by a second enquiry, a more serious punishment was inflicted upon which the court observed that the second enquiry would be barred by principle of double jeopardy. From the order of that case, it is not clear whether the first enquiry was a major penalty enquiry or a minor penalty enquiry although from the nature of the punishment imposed in the first enquiry, which is of reduction to a lower stage of pay for a period of three years with the effect of postponing future increments, it appears to be a case where major penalty was imposed earlier also. In that context, the court was justified in holding that the second enquiry was barred by principle of double jeopardy. However, in the instant case, first punishment was not by following major penalty procedure but by following minor penalty procedure and the first punishment order as well as all consequential proceedings pursuant to the first charge sheet have been annulled while reserving right to proceed afresh. The aforesaid judgment therefore renders no help to the first respondent.

For all the reasons recorded above, we are of the firm view that the Tribunal was not legally justified in holding that the second charge-sheet and the consequential actions were hit by doctrine of double jeopardy.

However, what we notice is that the first respondent had challenged the disciplinary action taken against him not only on the ground that it was hit by principle of double jeopardy but also by raising various other issues concerning fairness of the inquiry. Those issues were in fact noticed for adjudication but, unfortunately, were not specifically adjudicated by the Tribunal inasmuch as it proceeded to allow the original application by applying the doctrine of double jeopardy, which we have found not applicable on the facts of the case. Accordingly, we consider it appropriate to remit the matter back to the Tribunal to consider all those other issues that may have arisen from the pleadings of the parties so as to ascertain whether the subsequent enquiry stood vitiated on account of infraction of the principles of natural justice or the procedure prescribed by the Rules.

At this stage, we may observe that Sri Sanjay Kumar Om, learned counsel for the first respondent, had also placed before us certain facts to challenge the quantum of punishment that was imposed on the first respondent in the second inquiry. Certain documents were also placed before us to suggest that on similar charges others have been imposed relatively lesser punishment than what was imposed upon the first respondent. However, as the Tribunal has not examined those facts and no finding has been returned by the Tribunal on that aspect, we do not propose to examine that aspect. We, however, leave it open for the first respondent to raise it before the Tribunal as per advise.

For all the reasons recorded above, we deem it appropriate to allow this petition. The petition is allowed to the extent indicated below. The order of the Tribunal dated 18th May, 2012 passed in Original Application No 1093 of 2006 is set aside. The Original Application no. 1093 of 2006 shall be restored to its original number. The Tribunal shall proceed to decide the above application, afresh, in accordance with law and in the light of the observations made herein above, after giving opportunity of hearing to the parties concerned, expeditiously, preferably, within a period of four months from the date a certified copy of this order is presented before it. There shall be no order as to costs.

Order Date :- 16.11.2018 Sunil Kr Tiwari

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