1. This is a petition by a servant of the railway administration, in fact the second petition in regard to the same set of events in circumstances to be set out presently. His prayer is that this Court should direct that the administration should not implement its order punishing him by loss of increments. The ground is that he has already been exonerated by an order of this Court in Misc. Petition No. 44 of 1960 of the very allegations which have since been made the subject-matter of a second charge-sheet. The questions for decision are, on the facts, whether the two charge-sheets, namely, the earlier one the departmental decision on which was before the High Court in Misc. Petition No. 14 of 1960 and the later one as the result of which he has again been now punished, relate to the same set of facts and the second does not include any act on the petitioner's part not included in the first. The second question one of law or general principle of fairplay is, whether in the event of the Fame set of allegations having been investigated on merits and the public servant having been exonerated by a competent authority or Court there can be a fresh charge-sheet on precisely the same allegations. Obviously this latter has to be answered on general principles of fairplav usually called natural justice, and not on any theory that Section 403, Criminal Procedure Code and Article 20 of the Constitution are applicable to departmental proceedings which certainly they are not.
2. The first charge-sheet was to the following effect:
'Cheating the railway administration in capacity of a railway servant and causing loss of railway revenue.
In that while you were working as TTE of Train No. 74 Dn on 8-5-1958 Ex. Mhow to Ratlam, you did not check two ladies and two gents travelling in the same train in spite of being pointed out by Havildar (V) branch and further refused to accept a memo from Havildar and acted against the instructions notified vide Gazette of Notification ......'
This was investigated on merits and at one stage some punishment was suggested. The appellate authority held that though the charge had not been proved satisfactorily still the petitioner's conduct was shady and accordingly awarded a punishment milder than what had been suggested. The petitioner came to this Court in Misc. Petition No. 44 of 1960 and it was held in the judgment dated 20th July 1961 that it was a case where the appellate authority itself had held that the charge had not been proved. Therefore there could be no punishment; accordingly it was directed that the administration should set aside the punishment and restore the petitioner to the position he held before. It is unnecessary to set out the reasoning once again as they have been clearly discussed in the judgment itself. But the point to note is that it was not a case where the allegations had not been investigated on merits, the Court was not setting it aside on jurisdictional or other grounds, It was one in which the allegations having been investigated the appellate authority had in effect found that they had not been proved.
3. After this fresh proceedings were started and the new charge-sheet runs;
'Serious dereliction of duty -- Rule 1716 and 1717 RI: (1) While working as TTE on train No. 74 Dn on 8-5-58 Ex Mhow to Ratlam you did not perform your checking duty properly on the train in-as-much as two ticketless passengers happened to remain undetected in the course of your duty who were ultimately charged by TC on the gate at Ratlam vide EFT No. 69308 dated 8-5-58 amounting to Rs. 10-50 nP.
(2) You did not check the IIIrd Class Ladies compartment of this train as admitted by you in your statement given to JVI Ratlam on 6-9-59.
(3) At Ratlam on arrival of train you had gone away without waiting for the Havildar (V) Ratlam Shri Ratanlal Jaiswal who had presented a memo, to turn up with the ticketless passengers to be charged.'
The crux of the argument is while the petitioner contends that this charge-sheet is nothing more than a rehash of the old charge already investigated, it is suggested by the administration that this contains one or two new particulars. The first relates to four ticketless passengers 'two ladies and two gents'; the second one mentions 'two ticketless passengers'. Again, in the first charge-sheet refusal to accept the vigilance Hayildar's memo is mentioned, while in the later one it is said that, 'the petitioner did not wait for the Havildar who had presented a memo to turn up with the ticketless passengers to be charged.'
4. We have before us all the reports concerned some of which have been discussed in the earlier judgment. The two ticketless passengers mentioned in the new charge-sheet are two out of the four mentioned in the earlier and not outside that batch, i.e., two more out of a total of six. In fact, by the time the train reached Ratlam, 'the two ticketless gents'' had vanished and only the two ticketless ladies were detained by the vigilance staff and charged in the manner set out in the second charge-sheet. In other words, we are not dealing with six ticketless travellers in regard to four of whom the first charge-sheet was presented, the second charge-sheet being in regard to two others. The two in the second charge-sheet are the very two out of the four in the first who could not escape by the time the train reached Ratlam, probably because they were women or were more closely watched.
5. As for the refusal to accept the memo and the refusal to wait, they are one and the same thing. The Hayildar's memo is to the effect that the TTE might at a convenient station take the ticketless passengers to the office 'to be charged by the ticket collector in the usual manner'. So, refusal to accept the memo and the refusal to wait and bring the ticketless passengers with the Havildar to the ticket collector are one and the same thing. All confusion in this regard is removed by the report and the examination of the vigilance Havildar referred to in the judgment and placed on this file as annexure C on page 27. Thus, it is clear that the subject-matter of both these charge-sheets is exactly the same.
6. This takes us to the more important question about the correctness of proceedings once over (may be, several times over) in regard to the same allegations. If it were a criminal case, there is statutory provision in Section 403, Criminal Procedure Code. Article 20(2) of the Constitution also applies to the same kind of case and has in terms no application to departmental proceedings. This is clear enough, especially after the Supreme Court's decision reported in S. A. Venkataraman v. Union of India, AIR 1954 SC 375. At the same time it is against all notions of fairplay and propriety that having been exonerated after the investigation of facts, the servant should be charged again with the same fact. At this rate there will be no end to harassment and it is quite conceivable that a public servant who has been exonerated either by a superior tribunal or by the High Court, might still be subjected to departmental proceedings on the same allegations (made with a slight change in the wording) and the process repeated however often he succeeds in getting the punishment quashed. A position not unlike this arose in two of the reported cases namely Kanak Chandra v. Supdt. of Police Sibsagar, AIR 1955 Assam 240 and Dwarkachand v. State of Rajasthan, AIR 1958 Raj 38. It will be convenient to refer to the latter;
'Once a departmental inquiry is over and a public servant is exonerated no second departmental inquiry on the same facts can be ordered unless there is a specific provision of reviving the order of exoneration in the service rules or the law..... The contention that this view might result in prejudice inasmuch as the person holding the first inquiry might have held it in a very slipshod manner or even dishonestly and the State would-be helpless is not acceptable. If a superior officer holds a departmental inquiry in that way, the State can certainly take action against him. Secondly, it is open to State to prosecute a person once exonerated in a Court of law because a Court of law is not bound by the results of the departmental inquiry one way or the other. On the other hand, if a second departmental inquiry could be ordered the danger of harassment to the public servant would be immense.'
7. The subject came up for consideration in the Supreme Court in the case reported in Devendra Pratap v. State of Uttar Pradesh, AIR 1962 SC 1334. They have referred to both the cases mentioned above and distinguished them on the facts. Broadly speaking, when a High Court sets aside the punishment awarded in a departmental inquiry it might be due to two different reasons. Firstly, where the procedure for imposing the penalty has been irregular and secondly where the finding in made on the facts which patently fail to prove the charge. In the first case there is no doubt that the State can commence another inquiry in respect of the same subject-matter consistently with the requirements of Articles 310 and 311 of the Constitution. The second type is one where the merits have been investigated and the High Court holds that the investigating authority's own findings do not make out an offence. The case before the Supreme Court itself was of the first type, and it has pointed out the particulars in which the Assam and Rajasthan cases are distinguishable. There is no conflict of principles and that Court itself has not held that in the second type of case there would be any justification for a second proceeding. In fact the trend of the entire judgment is to distinguish between the two types of cases and point out in so many words that a fresh proceeding would be proper in the first type, and by implication it would be improper in the second type oUR case is of the latter kind.
8. The administration is therefore directed under Article 226 of the Constitution that the second proceedings were improper and that the punishment awarded as a consequence should be cancelled. The punishment no doubt is very mild: But the question is one of principle and there is absolutely no reason why after the High Court had set aside the results of the first inquiry the administration should have started it all over again without any new facts of allegations. The petition is allowed and the railway administration should pay Rs. 50/- (fifty) as costs to the petitioner.