No Separate Punishment for same Misconduct

>> Once, the petitioner has been awarded punishment by the department for the misconduct during his service, then after his retirement, on the basis of the same misconduct, which resulted into his conviction, another punishment cannot be awarded by the department.

>>> Whether a person can be a Judge in his own case, will be the first point for and, secondly, justice should not only be done but seems to have been done, will be the other point for consideration.

>>> The courts of law are Parens Patriae and have risen time and again to defend the citizens.

The courts have delivered judgments to defend the interest of community of employees.

>>> The court has held that two separate punishments cannot be awarded to an employee for the same misconduct.

The government had defended its action stating that the order of stoppage of pension years has been passed under the Punjab Civil Services Rules, which make future good conduct a condition for grant of the pension and give a right to the government to withhold or withdraw the pension or part of it if the pensioner is convicted of a serious crime or guilty of grave misconduct.

The court observed that the position would have been different if no punishment was awarded by the department on the basis of the same incident when the petitioner was in service and they had waited for the result of the criminal trial. Since he was awarded punishment in service, he can’t be punished again, the HC bench said asking the government to pay his stopped pension with an interest of 9%.

>>> The order came on the petition of a former assistant jail superintendent, Amritsar, who had allegedly misbehaved with then inspector general (jails) Bikramjeet Singh in 1994, during the latter’s visit to jail premises.

A parallel departmental inquiry was also conducted by then superintendent of police (jails) Dhanna Singh, in which, he was held guilty. Consequently, in August 1996 the accused petitioner was dismissed from service. After the high court intervention, his dismissal was converted into punishment of stoppage of two annual promotions. The accused was reinstated in service and the suspension period from November 1994 to June 1996 was treated as leave. He retired in 1999. Post retirement, he was convicted for various counts in 2006. In 2008, the government passed an order, stopping his pension for four and a half years.

>>> 2. Shri Tejwant Singh, Assistant Superintendent of Jail, has filed the present writ petition under Articles 226/227 of the Constitution of India for the issuance of a writ of certiorari, mandamus or any other writ or direction of this Court for the quashment of the order of dismissal dated 9.8.1996 passed by the Director General of Prisons, Punjab, confirmed in appeal on 5.6.1997 and the petitioner has further prayed that he may be treated in continuous, service with all rights, benefits and privileges which had already accrued to him.

3. The case set up by the petitioner is that when he was posted as Accountant in the District Jail, Sangrur, he filed a Civil Suit No.323 of 1987 dated 7.8.1987 seeking a declaration to the effect that action of the defendant of not giving a promotion orders to the plaintiff due to his seniority and gradation list, was illegal, mala fide and against the rules. The suit of the plaintiff was partly decreed.

The petitioner worked in the Security Jail, Sangrur, as Accountant with effect from May, 1986 to May, 1988. In the month of December, 1988 to August, 1989, the petitioner was posted at High Security Jail, Nabha, as Assistant Superintendent and received threats from the terrorists that he would be liquidated. Resultantly, the petitioner along with other officials who received the similar threats represented to the Superintendent of the concerned jail with a request to provide weapons of the safety. Keeping in view the threats to the officials serving in the jails, the Government issued instructions regarding the policy of the transfer of those Government employees who were under the threat of terrorism to safer places of their choice. These instructions were issued on 9.1.1990 vide Endorsement  No.807/868/GI/E.4/P.16-1. The petitioner, in pursuance of these instructions, requested the I.G. Prisons, Punjab, Chandigarh, through proper channel that he may be transferred to Sangrur Jail. The petitioner also represented to Chief Minister, Punjab regarding his transfer. At the relevant time, the petitioner was posted at Amritsar as Assistant Superintendent of Jail, but he was transferred to Central Jail, Ludhiana. He submitted his joining report at Ludhiana on 17.8.1994. On 5.9.1994, the transfer orders of the petitioner were cancelled. On 21.11.1994, Shri Bikram Jit Singh Sandhu was the I.G. Prisons, Punjab and he was present at Camp in Central Jail, Amritsar while on tour. The petitioner returned from his casual leave and met the I.G. Prisons, Punjab at Amritsar and requested to him for his transfer to any of the places like Malerkotla, Sangrur and Nabha as the petitioner was due to retire within five years. I.G. Prisons was annoyed with the petitioner because of the filing of the suit against the Department and, therefore, his request was not accepted and he was directed to go outside from the room. Thereafter, an order of suspension was passed against the petitioner.

The petitioner requested to Shri Devinder Singh Randhawa, Assistant Superintendent, Central Jail, Amritsar and Shri Sardul Singh, Assistant Superintendent to meet I.G. Prisons. He was allowed accordingly and the petitioner prayed for the withdrawal of the suspension order. However, I.G. Prisons got annoyed and remarked that petitioner was disobeying and disrespecting the officers of the Department and he was placed under suspension.

The petitioner was taken out from the room forcibly by the subordinate staff of I.G. Prisons and at the instance of I.G. Prisons, the petitioner was given severe beatings and he suffered injuries. The petitioner was kept in illegal custody up to 27.11.1994 as a result of which the petitioner had to file a criminal complaint against the officials on 13.12.1994. The petitioner was finally served with a charge sheet. The charge sheet was ignored and inquiry proceedings were initiated against the petitioner in pursuance of the order of I.G. Prisons and Shri Dhanna Singh was appointed as Inquiry Officer. The petitioner even made a representation against Shri Dhanna Singh for the change of the Inquiry Officer. The petitioner than made a representation to the Inquiry Officer not to hold an inquiry as the Inquiry Officer was biased against him. The petitioner made a representation also for the inspection of the certain record. The permission was granted to the petitioner for the inspection of the said record. When his request for the inspection of the record was still pending, the petitioner was served with a show cause notice. He submitted reply to the show cause notice and again made a request for the inspection of the record and this request was allowed. Before the inspection of the record the impugned order of the dismissal was passed on 9.8.1996. The petitioner filed an appeal before the Secretary to Government which was also dismissed on 5.6.1997 and rejection was conveyed to the petitioner on 18.11.1997. The petitioner submitted that the order of dismissal dated 9.8.1996 and the order dated 5.6.1996 are illegal, arbitrary and in violation of the principles of natural justice and are the outcome of mala fides. Though the petitioner has taken many grounds for the setting aside of these orders but the ground which was passed by the petitioner at the time of the arguments, was that the punishing authority was the Judge in its own cause and in these circumstances, the order of dismissal is violative of the principles of natural justice because it is inherent in the principles of natural justice that the justice should not only be done but seems to have been done. The petitioner even alleged that he was not supplied with the report of the Inquiry Officer before passing the impugned order.

4. The State took the stand vis-a-vis the suit of the plaintiff that though the appeal of the State was dismissed by the first appellate Court yet the second appeal is pending in the High Court. It was admitted by the respondents that petitioner appeared before the I.G. Prisons, Punjab during his visit to Central Jail, Amritsar for his transfer but the petitioner was told that he could not be transferred due to the ban imposed by the Government on mid-term transfers. The petitioner misbehaved with the then I.G. Prisons, Punjab and other officers present at that time. The petitioner raised slogans of Murdabad against the I.G. Prisons and other officers. The petitioner also scuffled with other officers and during the course of scuffle, Assistant Superintendent Shri Devinder Singh suffered one injury. For these reasons, the petitioner was put under suspension for misbehaving and creating in discipline and violating the provisions of Punjab Jail Manual and Government Employees Conduct Rules, 1966. Thereafter, an inquiry was initiated against the petitioner' and he was charge sheeted. The petitioner was never beaten or kept in illegal custody by the Jail Officers. A criminal case was also registered against the petitioner. The petitioner filed a reply to the charge sheet which was found unsatisfactory and he was dismissed from service on the basis of the report of inquiry

15. On the contrary, the learned counsel appearing on behalf of the respondents submitted that no prejudice has been caused to the petitioner even if the order of dismissal has been passed by Shri Bikramjit Singh Sandhu as a regular inquiry was conducted against the petitioner by Shri Dhanna Singh. The decision of the punishing authority has even been upheld by the appellate authority. The petitioner has committed a grave act of in-discipline and the witnesses have corroborated the allegations of the Department and the evidence was enough before the Inquiry Officer to give a finding of guilt against the petitioner and in these circumstances, the impugned orders cannot be interfered with by the High Court.

16. The proceedings in an inquiry though not fully judicial but definitely it is expected from the side of the Inquiry Officer. Punishing Authority as well as the appellate authority that these authorities must behave in a quasi-judicial manner at least.

The employee must be given an opportunity to rebut the case of the Department and the punishing authority must apply its mind unbiased to the proved allegations before awarding the punishment. After all. a human body is made of cells, blood and flesh. He is not a divine power. 

If, on judicial scrutiny the Court comes to this conclusion that something extraneous might have prevailed upon in the mind of the punishing authority before awarding the punishment, such an order cannot be accepted or endorsed on the parameter of judicial scrutiny. How Shri Bikramjit Singh Sandhu could remain aloof while passing the order of dismissal when he was aware of the alleged incident which took place on 21.11.1994. 

17. Resultantly, the present petition is allowed the impugned orders dated 9.8.1996 and 5.6.1997 are set aside with a clear observation that it will not detract the Department to pass an appropriate order according to law against the petitioner by a competent authority.

18. If Shri Bikramjit Singh is no longer in service, the fresh orders on the basis of the inquiry report may be passed by another competent authority who can do so uninfluenced by the earlier findings given by Shri Birkamjit Singh Sandhu.

Punjab-Haryana High Court
Tejwant Singh vs State Of Punjab And Anr. on 13 December, 1999

>>>  Petitioner was working as Assistant Superintendent Jail, Amritsar. On 21.11.1994, Bikramjeet Singh, I.G. Jail visited the Central Jail Amritsar, where the petitioner is alleged to have misbehaved with him. On the basis of said misbehaviour, the petitioner was suspended from service on 21.11.1994. An FIR No.174 under Sections 186, 323, 332, 353 and 506 IPC was also registered against him. At the same time, parallel departmental inquiry was also conducted by Shri Dhanna Singh, Superintendent of Police Jails, in which, he was held guilty. Consequently, vide order dated 9.8.1996, Additional Director General of Police dismissed the petitioner from service w.e.f. 10.8.1996. Appeal filed by the petitioner before the State Government was dismissed on 5.6.1997.

 Petitioner challenged his dismissal from service by way of CWP NO.2089 of 1998 before this Court, which was decided on 13.12.1999.

The impugned order of dismissal and the order of appellate authority were set aside and the case was remanded to the department to decide the matter afresh.

Consequently, the Inspector General Jails, Punjab, after considering the matter afresh, passed a fresh order on 4.5.2000, vide which, he was awarded punishment of stoppage of two annual promotions along with future effect. Petitioner was reinstated in service and the suspension period from 21.11.1994 to 9.6.1996 was treated as leave. Thereafter, on attaining the age of superannuation, the petitioner retired from service on 30.11.1999.

Bad time started for the petitioner when after his retirement, he was convicted by the Additional Chief Judicial Magistrate, Amritsar on 3.4.2006 under Sections 186, 332 and 506 IPC and sentenced to various imprisonments.

In appeal, the learned Additional Sessions Judge (Adhoc) Fast Track Court Amritsar vide judgment dated 4.7.2007 upheld the conviction of the petitioner but set aside the sentence and he was released on probation undertaking to maintain peace and be of good behaviour.

Thereafter, Director General of Police, (Jails), Punjab passed an order endorsed on 27.10.2008 (Annexure P7) under Rule 2.2(a) of Punjab Civil Services Rules Volume II, vide which, pension was stopped for 4 ½ years. Appeal filed by the petitioner against the said order was dismissed by the State Government vide order dated 11.10.2010 (Annexure P8).

State in the reply, has taken a stand that the order of stoppage of pension for 4 ½ years has been passed under Rule 2.2(a) of Punjab Civil Services Rules Volume II, which implies future good conduct as a condition for grant of the pension and which gives a right to the government to withhold or withdraw the pension or part thereof if the pensioner is convicted of a serious crime or guilty of grave misconduct. The other facts regarding previous dismissal of the petitioner from service and reinstatement were not disputed

Admitted facts are that the petitioner was previously dismissed from service on account of the incident of misbehavior with IG Jails.

The question arising for consideration before this Court is as to whether on the basis of the same misconduct, two separate punishments can be awarded by the department at different times, one during the service and another after the retirement? I find the reply in negative.

Once, the petitioner has been awarded punishment by the department for the misconduct during his service, then after his retirement, on the basis of the same misconduct, which resulted into his conviction, another punishment cannot be awarded by the department.

The position would have been different if no punishment was awarded by the department on the basis of the same incident when the petitioner was in service and they had waited for the result of the criminal trial.

Secondly, the petitioner was released on probation by the appellate Court and the department was required to first determine whether the evidence on which the petitioner was convicted but ultimately released on probation amounts to gross misconduct warranting exercise of powers under Rule 2.2(a) Punjab Civil Services Rules Volume II.

The impugned order does not show that such misconduct was determined. The order was passed merely on the basis of the conviction, assuming that from the conviction itself, a grave misconduct is conclusively proved.

In view of the matter, the impugned order endorsed on 27.10.2008 (Annexure P7) and the order dated 11.10.2010 (Annexure P8) passed in the appeal are not sustainable in the eyes of law and are hereby quashed.

Consequently, the petition is allowed. Arrears, if any, shall be released to the petitioner within two months from the date of receipt of certified copy of this order. The petitioner shall also be entitled to interest @ 9% per annum on the arrears, if any

Tejwant Singh ….. versus State of Punjab and others ……
CWP-991-2011 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP-991-2011 (O&M)
Date of decision: 10.01.2017 

 

Kumar Doab 
on 23 January 2017
Published in Labour & Service Law
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