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Mohinder Partap Singh Vs. Director Health Services, Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberWrit Appln. (Civil) No. 82 of 1955
Judge
Reported inAIR1956P& H81
ActsPunjab Civil Services (Punishment and Appeal) Rules, 1952 - Rule 14; Constitution of India - Article 20(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 403
AppellantMohinder Partap Singh
RespondentDirector Health Services, Punjab and anr.
Appellant Advocate Bhagirath Das and; M.S. Gujral, Advs.
Respondent Advocate Har Parshad, A.A.G.
DispositionPetition dismissed
Cases ReferredVenkataraman v. Union of India
Excerpt:
.....under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - but it is not for this court to indicate howsoon the government should take actions underrule 14. perhaps, it would be better for the administration if rule 14 was suitably amended by addingthe words which are contained in the revisionalsections of the punjab land revenue act andthe punjab tenancy act......further investigation, if any, may confirm, remit, reduce or, subject to the provisions of sub-rule (1) of rule 11, increase the penalty or subject to the provisions of rules 7, 8 and 9 inflict any of the penalties specified in rule 4.'reliance is placed by the petitioner on the words 'or has inflicted any of the penalties specified in rule 4 for which no order of penalty inflicted has been passed.' as the words stand the rule is unintelligible because when a punishment is inflicted some order has to be passed as is clear from rule 8 which provides that no order under clauses (i), (ii) or (iv) of rule 4 shall be passed imposing a penalty on a government servant unless he has been given an adequate opportunity of making any representation that he may desire to make, and such.....
Judgment:
ORDER

Kapur, J.

1. This is a rule obtained by the petitioner Mohinder Partap Singh for the issue of a writ of mandamus against the State directing them to withdraw directions for fresh enquiry and to respondent 1 to forbear from proceeding with any enquiry.

2. The petitioner was a Government Food Inspector and was confirmed in that post in March 1951. Sometime in May 1951 an enquiry was started in regard to certain acts done by the petitioner while he was posted at Ludhiana, On 2-11-1951 a charge-sheet was given to the petitioner by thethen Director of Health Services. By an order dated the 6th or 9th October, 1953, the petitioner was informed that the punishment imposed was the stoppage of two annual increments without prejudice to his future increments.

3. A letter dated 19-5-1954 shows that the Government was informed of the punishment given and of the explanation submitted by the petitioner sometime on 9-9-1953. On 8-4-1954, the matter was considered by the Anti-Corruption Committee who were of the opinion that the punishment imposed was inadequate.

The Government therefore decided that if the petitioner was a temporary Government servant, then his services may be dispensed with in accordance with the contract of service, but as they were later on informed that the petitioner (sic) permanent Government servant, the Gove(sic) directed that he be placed under suspensi(sic) a proper enquiry instituted against him.

4. Paragraph 6 of the affidavit of the (sic)tioner shows that he was informed on the (sic) 1954, that the Government were ordering an (sic)quiry because the punishment imposed was inade quate, that he (the petitioner) was required to submit his explanation afresh and that he submitted an explanation of protest on 24-11-1954.

On 19-1-1955 the Government sent a letter, Annexure E, that after considering the explanation given by the petitioner they were of the opinion that the petitioner should be suspended and that he (the petitioner) will be informed when the Enquiry Officer required the petitioner to present himself at Ludhiana for the purposes of enquiry.

5. The petitioner then made an application to this Court on 14-3-1955, and on the 16th of March proceedings in regard to the enquiry were stayed.

6. Counsel for the petitioner supports his application on four grounds (1) that he having been punished once no second enquiry can be ordered because that would be exposing him to 'double jeopardy' which is contrary to natural justice,(2) that the Government cannot take action after the lapse of such a long period inasmuch as a period of one year and 4 1/2 months has elapsed between the two punishments dated 6-10-1953 and the order of fresh enquiry made in February 1955,(3) that the Director of Health Services cannot reopen an enquiry which had ended with, his order of punishment on 6-10-1953 and (4) that Rule 14of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, has no application to the facts of the present case.

7. In support of his plea as to double jeopardy Mr. Bhagirath Das relied on--'Maqbool Hussain v. State of Bombay', AIR 1953 SC 325 at pp. 330-331 (A). In that case some persons then in a jail made a general assault on jail officials and some of them who were removed into cells resorted to hunger strike. They were punished by the Jail Superintendent by being separately con-fined and their letters and interviews were stopped. Some months after the hunger strike the Jail Superintendent filed complaints before a Magistrate under Rule 41(2) of the Punjab CommunistDetenus Rules for committing jail offences and under several sections of the Indian Penal Code.

It was held that the Jail Superintendent having taken action under Rule 41(1) and having award ed punishment to the detenus could not make a complaint against them again for the same offence. Their Lordships of the Supreme Court examined the scheme of Rule 41 and observed:

'It is only when the Jail Superintendent considers that the offence is not adequately punishable by him that he can send the case to the Magistrate. If he actually himself punishes, he cannot under this rule, refer the case again to the Magistrate. A reference by him after punishment will be wholly unauthorised and without Jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law.'

This case, therefore, is not an authority of the proposition which was contended for by Mr. Bhagirath Das. That case was decided simply on the basis of the power of the Superintendent. Their Lordships have in a later case specifically decided the question of departmental punishment in -

'Venkataraman v. Union of India', AIR 1954 SC 375 (B). There the principle that a man must not be put twice in peril for the same offence, the doctrine of 'autrefois acquit' and 'autrefois convict' as also the fifth amendment of the American Constitution which provides 'inter alia' -

'Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb.'

were examined, it was held that the words 'prosecuted and punished' are to be taken not distributively so as to mean prosecuted or punished, but both the factors must co-exist in order that the operation of Clause 2 of Article 20 may be attracted.

8. In 'AIR 1953 SC 325 (A)' it was held that the words of this Article (Article 20(2) ) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of criminal proceedings before a Court of law or Judicial Tribunal and not before a Tribunal which entertains a departmental or administrative enquiry even though set up by statute but which is not required by law to try a matter judicially and on legal evidence.

9. In 'AIR 1954 SC 375 (B)', an officer of Government had been dismissed after a departmental enquiry and then criminal proceedings were started against him and he pleaded that he could not be tried for the same offence as he had already been punished with dismissal, but this contention was repelled.

10. Mr. Bhagirath Das, however, submits that even it Article 20(2) of the Constitution of India may in terms be inapplicable the principle underlying it should be held to apply to departmental enquiries, and because his client has once been punished with stoppage of two yearly increments, no second enquiry can be started against him.

Assuming though not deriding that the doc-trine of double Jeopardy applies to administrative matters also, although one may search the lawreports in vain for a precedent in support thereof, in the present case it cannot avail the petitioner as the rules to which my attention has been drawn show that after a punishment has been given if the Government are of the opinion that the punishment is inadequate, they can order a fresh enquiry to be held. Rule 14 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, before the amendment stood as follows:

14. The Government or the Head of Department may call for and examine the records of any case in which a subordinate authority passed any order under Rule 10 or has inflicted any of the penalties specified in Rule 4 for which no order of penalty inflicted has been passed and after making further investigation, if any, may confirm, remit, reduce or, subject to the provisions of Sub-rule (1) of Rule 11, increase the penalty or subject to the provisions of Rules 7, 8 and 9 inflict any of the penalties specified in Rule 4.'

Reliance is placed by the petitioner on the words 'or has inflicted any of the penalties specified in Rule 4 for which no order of penalty inflicted has been passed.' As the words stand the rule is unintelligible because when a punishment is inflicted some order has to be passed as is clear from Rule 8 which provides that no order under Clauses (i), (ii) or (iv) of Rule 4 shall be passed imposing a penalty on a Government servant unless he has been given an adequate opportunity of making any representation that he may desire to make, and such representation has been taken into consideration.

It is not shown that any oral order can be made imposing the penalty mentioned in Rule 4. and therefore it must mean what is now made clear by the amended rule which came into force on 17-8-1954, the relevant portion of which reads:

' x x x in Rule 4 or in which no orderhas been passed or penalty inflicted, and x x.'

In my opinion, therefore, the Government had the power to call for the record and could, in they came to that conclusion, take action under Rule 14.

11. It was submitted that amended Rule 14 could not apply to the petitioner whose case was decided in October 1953, but in my Judgment the rule as it stood before meant what has been cleared up by the present Rule 14 which has been substituted in place of the old rule.

12. The next submission raised was that the matter is a state one and reliance was placed on an unreported judgment of Weston C. J. where it was held that in civil revisions although the period of limitation is not 90 days, the Court would refuse to interfere If the petition is brought more than ninety days after the passing of the order sought to be revised. It is true that ordinarily Courts will not interfere where claims have become stale, but even in the matter of civil revisions Article 181. Limitation Act is applicable and It cannot be said that there is no period of limitation.

As a matter of practice Courts refuse to interfere in regard to stale claims, but that, in myopinion, has no application to the facto of the present case. I have already given the dates onwhich various steps were taken. The order of punishment was passed on 6-10-1953. The papers were then submitted to Government who in April, 1954, placed the matter before a Committee who were of the opinion that the punishment was inadequate and the Government then made an order in May 1954 to take action under Rule 14 of the Rules.

On 22-11-1954, the petitioner was asked as to why he should not be suspended and the order indicated that a proper enquiry into charges of corruption would be started against him. No doubt the Government have not acted with any great promtitude and have taken more time than perhaps it might have taken, but I am not aware of any precedent, nor have the counsel placed any before me showing that the rule of stalenessapplies to public enquiries. Perhaps, it may be very inconvenient and many a guilty Government servants may escape if this rule were made applicable.

13. The basis on which this rule is sought to be pressed into service by the counsel for the petitioner is the analogy of revisions in civil and Criminal cases, but that cannot be held to apply to departmental enquiries. The period of limitation for appeals under the departmental rules is six months, and that is another argument which Mr. Bhagirath Das tried to use in support of his plea of limitation in regard to this enquiry, but I find no support for this principle being applied in regard to actions taken by the Government, although I am of the opinion that it would be more desirable if the Government were to take more prompt actions and avoid delay.

But it is not for this Court to indicate howsoon the Government should take actions underRule 14. Perhaps, it would be better for the administration if Rule 14 was suitably amended by addingthe words which are contained in the revisionalsections of the Punjab Land Revenue Act andthe Punjab Tenancy Act.

14. It is then submitted that if Rule 14 was applicable the Director could not reopen an enquiry which had terminated with his order dated 6-10-1953, but as I have discussed above, the order is not of the Director but of the Government who have passed the order for fresh enquiry under Rule 14 which is also clear from para 6 of the affidavit of the petitioner and from the letter referred to in that paragraph a copy of which has been placed on the record by Mr. Har Parshad because I was anxious to see what order the Government had made.

In my opinion, it is not the Director who has ordered a fresh enquiry, but it is the Government who have ordered it, and perhaps the charge-sheet which was given to the petitioner on 9-2-1955, in essence is the same as that which was the subject-matter of enquiry ending with the order of 6-10-1953 but then it is these contingencies which are contemplated by Rule 14. In this case and in the nature of things the charge-sheet cannot be different because it is the same set of facts which must necessarily form the basis of the complaint.

15. I am therefore of the opinion (1) that the case is not covered by the principle of double jeopardy, nor is it contrary to natural justice, (2) that although the Government may have taken more time than it might have, the action of the Government is not barred on the principle of staleness and (3) that it is not the Director of Health Services who has reopened the inquiry but it is the Government who could do so under Rule 14 of the Rules.

16. I would therefore dismiss this petition and discharge the rule. No orders as to costs.


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