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ASHOK KUMAR SHARMA versus CHAIRMAN, VINDHYAVASINI GRAMIN BANK, HEAD OFFICE, & ORS.

High Court of Judicature at Allahabad

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Ashok Kumar Sharma v. Chairman, Vindhyavasini Gramin Bank, Head Office, & Ors. - WRIT - A No. 32597 of 2003 [2003] RD-AH 241 (31 July 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No.32597 of 2003

Ashok Kumar Sharma ......... Petitioner

Versus

Chairman, Vindhyavashini Gram Bank,

Mirzapur & Anr. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. D.P. Gupta, J.

This writ petition has been filed for quashing the Circular dated 26.06.2002 issued by respondent no.2 and also for quashing the selection process for promotion on Scale-II Officers, for which the written test has been held on 27th July, 2003.

Facts and circumstances giving rise to this case are that the petitioner has been working as a Manager in the respondent no.1 Bank and he was put under suspension on certain charges. Enquiry was concluded and vide order dated 27.11.2001, Disciplinary Authority awarded the punishment of lowering down him to four stages/scales and also directed that he would not be entitled for any salary and allowance during the period of suspension. Being aggrieved and dissatisfied, he preferred an appeal, which was rejected by the Appellate Authority vide order dated 23.04.2002, which has been challenged by him by filing a Writ Petition No. 32315 of 2002, which is still pending. There is no interim order in that writ petition. The promotions for the higher scale are under process and for the same, a written test was held on 27.07.2003 and petitioner has not been permitted to appear in the written test, rather his representation dated 22.07.2003 to allow him to appear in the written test, stood rejected vide order dated 24.07.2003. Hence this petition.

Learned counsel for the petitioner has submitted that the impugned circular provides for non consideration of the candidature of an employee for certain period according to the punishment awarded to him. In case, it is a minor punishment he would not be eligible for consideration for promotion for a period  of one year or till the effect of punishment subsists. In case of major punishment, he becomes disqualified to be considered for promotion for a period of three years or till the rigour of the punishment ends. The circular is being challenged on the ground that it is unreasonable, arbitrary without any  competence and amounts to double jeopardy as the employee has already faced the enquiry and punishment has been imposed. Thus, the circular is liable to be quashed.

Shri A.K. Srivastava, learned counsel for the respondents has submitted that under the provisions of Section 30 of the Regional Rural Banks Act, 1976, the Board has been given a power to frame Regulations and to take a policy decision. As there are no Rules providing for procedure for promotion, the policy adopted by the Bank can not be held to be without competence nor it can be said to be unreasonable or arbitrary. The Board can not lay down a criteria contrary to one prescribed by the Central Government but in absence of any such criteria by the Central Government, it can frame  a reasonable criteria. Even otherwise, if the petitioner is permitted to be considered for promotion as the major punishment of lowering down him by four stages has been imposed only 2 and half years ago and rigour of the punishment still subsists, he can not be promoted. Entertaining this writ petition would be  a futile exercise. Non considering him for promotion during this period is a consequence of the punishment imposed in a disciplinary enquiry, which does not amount to double jeopardy. Thus, the petition is liable to be rejected.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

We are in full agreement with the learned counsel for the respondents that even if petitioner is permitted to be considered for promotion, he has no case for promotion so long rigours of punishment continues as the punishment has been imposed only  lowering down the petitioner to four stages vide order dated 27.11.2001, i.e. only two and half years ago. Till this rigours continues,  the petitioner  can not claim to be suitable for promotion even if he is eligible.

We also find no force in the submission made by learned counsel for the petitioner that not permitting the petitioner to compete for promotion amounts to double jeopardy for the reason that it is merely the consequence of the punishment.

A constitution Bench of the Hon'ble Supreme Court in S.A.Venkataraman Vs. Union of India & Anr., AIR 1954 SC 375 explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20 (2) of the Constitution there must have been both prosecution and punishment in respect of the same offence. The words ''prosecuted' and ''punished' are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. While deciding the said case, the Apex Court placed reliance upon its earlier judgment of the Constitution Bench in Maqbool Hussain Vs. State of Bombay, AIR 1953 SC 325, wherein, it had been observed that the provision is based on a well established rule, embodied in the maxim "nemo debet bis vexari"- a man must not be put twice in peril for the same offence.

In Union of India Vs.  K.V.S. Jankiraman, AIR 1991 SC 2010, the Hon'ble Supreme Court dealt with the   submission  that   in spite  of   being punished,   an  employee  has  a  right   to   be considered  for  promotion.  The Hon'ble  Supreme Court rejected the submission holding as under:-

"......   The officer cannot be  rewarded by  promotion as matter of course even if the  penalty  is other than that  of  the reduction  in  rank.  An employee has  no right  to promotion.  He has only a right to  be considered for promotion......  To qualify  for promotion, the least that is expected  of  an employee is to  have  an unblemished  record.  That is the minimum expected  to ensure a clean and efficient administration  and to protect the public interests.  An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated   differently.......When  an employee is held guilty and penalised and is, therefore, not promoted at least till the  date  of which he is penalized, he cannot be said to have been subjected to a  further penalty on that  account. A denial of promotion in such circumstances is   not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion, his whole record has to be taken into consideration and denies him the promotion; such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date the authority considers the promotion." promotion on that ground."

Placing reliance on the aforesaid judgment in State of Tamil Nadu Vs.  Thiru  K.S.  Murugesan & ors., JT 1995 (4) SC 307, the Hon'ble Supreme Court held as under:-

"When promotion is under consideration, the previous record forms basis and when the promotion is on merit and ability, the currency of   punishment based on previous record stands an impediment.  Unless the period of punishment gets expired by efflux of time, the claim for consideration during the   said period cannot be taken up... Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article   14   read with   16   of   the Constitution."

In State of Punjab & Anr.  Vs.   Dalveer Singh & ors., JT  2000 (10) SC 456, the Hon'ble Supreme Court considered the scope of double jeopardy and provisions of Article 20 of the Constitution   in    case    where   disciplinary proceedings initiated by the department were challenged by the employee on the ground that he had already been imposed the fine for committing the offence under the Motor Vehicles Act.   The Hon'ble Supreme Court rejected the submission that initiation of departmental proceedings would tantamount to violation of provisions contained in Article 20 (2) of the Constitution as it does not amount to double jeopardy.

In Union of India Vs. Sunil Kumar Sarkar, 2001  (3) SCC 414, the Hon'ble Supreme Court considered the argument that if the punishment had already been imposed for Court Martial Proceedings, the proceedings under the Central Rules dealing with disciplinary aspect and misconduct cannot be held as it would amount to double jeopardy violating the provisions of Article 20  (2) of the Constitution. The Supreme Court explained that the Court Martial Proceedings deal with penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not over-lap at all and, therefore, there was no question of attracting the doctrine of double jeopardy. While deciding the said case, the Hon'ble Supreme Court placed reliance upon its earlier judgment in R. Viswan Vs.   Union of India & ors., AIR 1983 SC 658.

In Union of India & Anr. Vs. P.D. Yadav, (2002) 1 SCC 405, the Hon'ble Supreme Court dealt with the issue of double jeopardy observing as under: -

"A contention, though feeble, was advanced on behalf of some of the respondents that forfeiture of pension in addition to the punishment imposed under Section 71 of the Army Act amounted to double jeopardy. In our view, this contention has no force.  There is no question of prosecuting and punishing a person twice for the same offence. Punishment is imposed under Section 71 of the Army Act after   trial by Court Martial. Passing an order under Regulation 16 (a) in the matter of grant or forfeiture of pension comes thereafter and it is related to satisfactory service. There is no merit in the contention that the said Regulation is bad on the ground that it authorized imposition of a double penalty; may be in a given case, penalty of cashiering or dismissal    from service and the consequential forfeiture of pension may be harsh and may cause great hardship but that is an aspect which is for the President to consider while exercising his discretion under the said Regulation. May be in his discretion, the President may hold that the punishment of cashiering or dismissal or removal from service was sufficient having regard to circumstances of the case and that a person need not be deprived of his right to pension.  A crime is a legal wrong for which an offender is   liable to   be prosecuted and punished but only once for such a crime. In other words, an offender cannot be punished twice for the same offence. This is demand of justice and public policy supports it. This principle is embodied in the well-known maxim memo debet bis vexari (si constat curiae quod sit) pro una et eadem causa meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. Article 20  (2) expressly provides   that: 'No one shall   be prosecuted and punished for the same offence more than once.' Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law.  In the proceedings before General? Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16   (a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proven misconduct by the General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16  (a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases."

Similar view has been reiterated by the Hon'ble Apex Court in State of Haryana Vs. Balwant Singh, 2003 (3) SCC 362 observing that there may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on a criminal side and also for action in civil court/other forum for recovery of money by way of damages etc. Therefore, it is always not necessary that in every such case the provision of Article 20(2) of the Constitution may be attracted.

In Hira Lal Hori Lal Bhagwati Vs. C.B.I. New Delhi, 2003 AIR SCW 2735, the Apex Court while considering the case for quashing the criminal prosecution for evading the custom duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy.

Thus, the aforesaid settled legal proposition emerges that it as a consequence of punishment, a person is not found eligible, it is the effect of the said punishment and does not amount imposing punishment again for the same misconduct.

If the fate of the petitioner is examined in the aforesaid settled legal proposition, because of the punishment, petitioner becomes unsuitable for promotion and suffers from disqualification till the rigour of the punishment subsists. It is a consequence thereof and not imposing punishment for the same misconduct for which he has already been imposed punishment.

Thus, in view of the above, we find no force in the writ petition. The writ petition is dismissed.

31.07.2003

AHA


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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