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Article 226 in The Constitution Of India 1949
Article 226(3) in The Constitution Of India 1949
State Of Assam & Anr vs J. N. Roy Biswas on 6 October, 1975
The Executive Engineer,Bihar ... vs Ramesh Kumar Singh & Ors on 22 November, 1995
Section 56 in The Trade Marks Act, 1999
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Hem Lal Sah vs The State Of Bihar on 11 February, 2014
State Of Bihar vs Hemlal Sah on 11 February, 2014
Shri Umed Higher Secondary ... vs State Of Rajasthan And Ors. on 29 April, 1999
Jasu Alias Jaswant Singh vs State Of Rajasthan on 19 September, 1994
Shrijee Trading Company And Ors. vs State Of Gujarat And Ors. on 1 August, 2003

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Allahabad High Court
Rajendra Prasad Gupta And Another vs State Of U. P. And Another on 20 August, 1999
Equivalent citations: 1999 (4) AWC 3446
Author: O P Garg
Bench: O P Garg

JUDGMENT O. P. Garg, J.

1. The fate of this writ petition would turn out on the determination of twin simple legal questions--firstly, whether a disciplinary authority can order de nova enquiry against a Government servant on the same allegations and charges which have already been dropped, and, secondly, whether a writ petition under Article 226 of the Constitution of India against a notice to show cause why the enquiry into the matter be not re-initiated, is maintainable. The controversy emanates in the background of the following facts :

The petitioner No. 1 is Sub-inspector, while petitioner No. 2 is Head Constable in the Civil Police posted respectively at Meerut and Pilibhit. The gravamen of the charge against the petitioners was that they had misbehaved and ill-treated Jasbir Singh, resident of village Harralya Kanja. Police Station Gajraula, district Pilibhit, who had come to the Police Station to lodge an F.I.R. on 25.11.1993 and that instead of recording the F.I.R.. faithfully and correctly, it was deflated to minimise the offence. Notices dated 7.3.1996, Annexures-6 and 7 to the writ petition were issued to the two petitioners to show cause as to why an adverse entry may not be made in their service record for the remissness aforesaid. The petitioners submitted their replies to the show cause notice on 26.3.1996 and 21.6.1996. copies of which are Annexures-8 and 9 to the writ petition. After taking into consideration the explanations/replies submitted by the petitioners and being satisfied by them, the Superintendent of Police. Pilibhit. by order dated 1.7.1996, Annexure-10 and by another order dated 30.7.1996, Annexure-11. exonerated the petitioners and discharged the notices. In this manner, the chapter was finally closed and no further departmental proceedings were to be taken against the petitioners. The idea to record adverse entry in the service records of the petitioners was dropped.

Subsequently, after about three years, in pursuance of the order dated 16.2.1999 passed by the State Government, fresh notices dated 1.7.1999, Annexures-12 and 13 to the writ petition, were served on the petitioners intimating them that a decision has been taken to initiate departmental enquiry afresh in the matter of alleged impropriety with regard to the F.I.R. lodged by Jasbir Singh on 25.11.1993. They were further required to show cause as to why the proposed adverse entry incorporated in the notices themselves be not made in their service record. It is in these circumstances that the petitioners have come before this Court under Article 226 of the Constitution of India with the prayer that the notices aforesaid, Annexures-12 and 13 to the writ petition be quashed.

2. Heard Sri Hemendra Kumar. learned counsel for the petitioners as well as the learned standing counsel. Since the legal questions involved in the present case are well-settled, and stand concluded by authoritative pronouncements of the Apex Court, as Well as this Court, instead of dragging this petition unnecessarily, I dispose it of finally with the consent of learned counsel for the parties.

3. Learned standing counsel frankly conceded that the notices dated 1.7.1999 have been issued with a view to initiate departmental enquiry afresh in respect of the same allegations and alleged impropriety of the petitioners, for which they were proceeded against earlier and the proceedings were finally dropped after consideration of their replies/explanations.

4. Now the question is whether in view of the above indubitable factual position that the departmental enquiry against the petitioners has already been dropped after taking into consideration the reply to the show cause notice and the material available with the Superintendent of Police, Pllibhit. the disciplinary-authority, on the direction of the' State Government can initiate a second de novo enquiry into the same matter. The legal position on the point is well established. On general principles, there can be only one enquiry in respect of a charge for a particular misconduct, i.e., also what the Rules usually provide. If for some technical or other good ground--procedural or otherwise--the first enquiry or punishment or exoneration is found bad in law. there is no principle that a second enquiry cannot be launched. This aspect of the matter came to be considered by the Apex Court in the case of K. R. Deb v. Collector of Central Excise. Sheilong, AIR 1971 SC 1447. It was ruled that if there is some defect in the enquiry conducted by the enquiry officer, the disciplinary authority can direct the enquiry officer to conduct further enquiries in respect of that matter but it cannot direct a fresh enquiry to be conducted by some other officer. In another decision, in the case of State of Assam and another v. J. N. Roy Biswas, AIR 1975 SC 2277, the power of the Government for reopening the proceedings in enquiry has been conceded provided the rules vest some such revisory power. In that case, the delinquent employee was exculpated after enquiry and was reinstated in service. The State Government took into consideration the material of the case and came to the conclusion that the delinquent merited punishment and the proceedings be reopened. This was done and as the de novo recording of evidence progressed, respondent moved the High Court under Article 226 for a writ of prohibition as in his submission, there was no power to re-open a case concluded by exoneration and reinstatement and the illegal vexation of a second enquiry should be arrested. The grievance of the employee was held good by the High Court which granted the relief sought. The appeal filed by the State of Assam was dismissed observing that though no rule of double Jeopardy bars the second enquiry but absence of power under A rule inhibits a second inquiry by the disciplinary authority after the delinquent had once been absolved. The matter was further clarified in paragraph 4 of the Report, which runs as follows :

"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, ........."

5. Sequel to the above, there is another consistent view of the Apex Court in Anand Narain Shukla v. State of M. P.. AIR 1979 SC 1923, in which second enquiry on merits was held to be permissible as the earlier enquiry was quashed on a technical ground. The law. therefore, is well established that in case the earlier order passed in enquiry is quashed on technical or procedural ground, the fresh enquiry on merits would not be barred. Similarly in Nahar Singh v. Union of India, 1992 (II) LLJ 573 (Del), drawing from the above decisions of the Supreme Court and also relying on Section 21 of the General Clauses Act. 1897, a Division Bench of the Delhi High Court held that in certain circumstances, the disciplinary authority might have the power to direct a de novo enquiry to be held. A Division Bench of the Calcutta High Court has taken a somewhat different view. In Calcutta Municipal Corporation and others v. Dr. S. Wajid All and another, 1993 (2) SLR 631, it was held that where an enquiry officer exonerates the delinquent official on the material disclosed on the departmental enquiry. the disciplinary authority has no jurisdiction to set aside the findings of the enquiry officer and direct a fresh enquiry after taking fresh evidence--de novo enquiry was not permissible under such circumstances. The legal position has further been explained by learned single Judge of Madras High Court in M. Kolandai Gounder v. Divisional Engineer. T.N.E.B. Thuralyur and others, 1997 (1) SLR 467 (Mad), before whom it was contended that after having conducted an enquiry and after receiving the report from the enquiry officer holding that the charges were not proved against the petitioner, it is not open to the respondents to issue the very same charge and conduct another enquiry with reference to the same very same charges. It was ruled that though it is open to the management to take a different view from the views recorded by the enquiry officer, yet the management cannot go on conducting the enquiry again and again till the guilt of the employee is proved. It amounts to harassment even though the principle of double Jeopardy may not be applicable. Ultimately it was held that the second set of disciplinary proceeding with the very same charges which have not been proved, tantamount to harassment and the practice of de novo enquiry was deprecated as being not in the interest of the public service.

6. In view of the above decisions, one thing is very clear that a disciplinary enquiry on the same charges and material is not barred, if the earlier enquiry is vitiated on account of certain technical and procedural flaws. In such circumstances, the employer is at liberty to get the matter re-examined on merits by initiating the second enquiry. Other conclusion, which flows from the above decisions is that if after considering the material on record, the disciplinary authority has found that an employee was not guilty of the charges and has been exculpated of the allegations made against him in that event, the de novo enquiry would be nothing but harassment of the concerned employee and, therefore, the de novo or second enquiry would not be legally permissible.

7. In the instant case, taking into consideration the nature of the allegations, a minor punishment in the form of censure entry was proposed to be inflicted on the petitioners. The petitioners were called upon to show cause why an adverse entry of censure be not made in their service records. Both the petitioners, as said above, submitted their detailed explanations which were considered by the disciplinary authority, i.e., the Superintendent of Police, Pilibhit, and he having satisfied himself of the falsity of the allegations made against the petitioners, discharged the show cause notices and exonerated the petitioners of the allegations made against them. This was done in 1996. After a lapse of about three years, again the matter was raked up and the petitioners were served with show cause notices based on the same material with regard to the same incident. Even the proposed punishment in the form of censure entry in the second notice is the true replica of the censure entry proposed in the earlier notices which were discharged. There is nothing on record to indicate that the earlier orders of discharging the notices issued to the petitioners were vitiated on account of any technical or procedural defect. There is nothing in the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal] Rules. 1991, which are applicable to the petitioners, to provide that the order of exoneration, or exculpation, of the petitioners on the allegations/charges for which minor punishment was proposed, is subject to revision or review. In the conspectus of this conclusion and the backdrop of the above legal position, the impugned show cause notices issued to the petitioners, proposing the punishment, though minor in nature, on the very same charges and material, which were the subject-matter of the earlier notices, which stand discharged, are wholly illegal, unjustified and without jurisdiction. The respondents are not entitled in the circumstances of the present case to initiate or commence de novo enquiry against the petitioners.

8. Now it is the time to consider whether the present writ petition is not maintainable against a show cause notice primarily on the ground that the petitioners have an alternative remedy to canvass their point of view before the disciplinary authority. Normally a writ petition under Article 226 of the Constitution of India is not maintainable against a show cause notice. This aspect of the matter was considered in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, AIR 1996 SC 691, wherein, the Apex Court was concerned with the entertainment of the writ petition against a show cause notice issued by the competent authority. In that case, there was no attack against the vires of the statutory provisions governing the matter and no question of infringement of any fundamental right guaranteed by the Constitution was alleged or proved. It could also not be said in that case that the notice was ex facie 'nullity' or totally "without jurisdiction' in the traditional sense of that expression--that is to say, that even the commencement or initiation of the proceedings on the face of it and without anything more, was totally unauthorized. In the backdrop of these facts, the Apex Court observed as follows :

".....In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternative remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India."

9. Sri Hemendra Kumar.,learned counsel for the petitioners further urged that in certain exceptional circumstances, like the present one. where de novo enquiry cannot be made by the disciplinary authority, the show cause notice may be quashed as being without jurisdiction and this Court in its plenary jurisdiction to do complete justice may step in to promote the cause of justice by invoking the provisions of Article 226. He also urged that the impugned notices are without jurisdiction and nullity as the same old and stale matter, which already stood concluded by an order of the competent authority, is sought to be raked up. According to him, if an enquiry is held again on the same matter, it would, be unfair and violative of the principles of natural justice. In support of his contention, learned counsel for the petitioners placed reliance on the decision of a Division Bench of Lucknow Bench of this Court in Ramesh Chandra Misra v. Chairman, Central Bank of India, 1990 (8) LCD 533. On the same point, the decision of Delhi High Court in R.

N. Atri v. Union of India and another, 1979 AISLJ 12, was cited in which the question of the maintainability of the writ petition under Article 226 of the Constitution against show cause notice on the ground of alternative remedy by submitting reply to the enquiry officer came to be considered. It was observed that remedy as available to a person which could bar him from approaching the Court under Article 226 must be a remedy under any other law and independent to making the pica to the very authority whose jurisdiction has been challenged. If enquiry officer cannot in law hold an enquiry because of the contentions raised by the learned counsel for the petitioner, it is no argument to say that the said points can be urged before the enquiry officer, and, therefore, an alternative remedy is available. An alternative remedy within the meaning of Article 226(3) must be before an authority other than one whose jurisdiction is challenged.

10. There is a recent celebrated decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks. Mumbai and others, (1998) SCO 1, wherein the question whether a writ petition under Article 226 against a show cause notice is maintainable was directly involved. The High Court had dismissed the petitioner under Article 226 on the ground of availability of alternative remedy. In that case, a show cause notice was issued to the Whirlpool Corporation by the Registrar of Trade Marks under Section 56(4) of the Trade and Merchandise Marks Act, 1958 as to why the certificate of registration be not cancelled. Against the said notice, the Corporation filed a writ petition in the Bombay High Court. On behalf of the Registrar of Trade Marks, it was contended before the Apex Court that the High Court was fully justified in dismissing the writ petition at the threshold, particularly, as the writ petition was directed only against a show cause notice. It was further urged that the Corporation should have submitted a reply to the notice and allowed the Registrar to dispose of the whole matter on merits, particularly as the Registrar had initiated the action principally on the ground that the appellant had obtained the renewal of the trade mark by misrepresentation and concealment of relevant facts. Learned counsel for the Corporation, in reply submitted that where the action initiated by the statutory authority is wholly without jurisdiction, as such, it can be challenged under Article 226 of the Constitution of India and the writ petition cannot be dismissed summarily. The submission made on behalf of the Corporation found favour with the Apex Court. It was observed that the power to issue prerogative writ under Article 226 is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for 'any other purpose'. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

11. In view of the above legal position, now it would be a myth to say that a writ petition under Article 226 against a show cause notice is not maintainable. Where the notice is illegal and without jurisdiction, this Court, which has all pervasive jurisdiction under the said Article, is empowered to entertain the writ petition even in a case in which show cause notice has been issued. It would be fruitless exercise to drive the petitioners to submit replies to the show cause notice. A Government servant cannot be harassed by making him to run from pillar to post. The present writ petition against show cause notices is held to be maintainable.

12. In the result, the writ petition succeeds and the impugned notices dated 7.7.1999 (Annexures-12 and 13 to the writ petition) are hereby quashed as the petitioners cannot be subjected to harassment by undergoing the rigours of the second enquiry which for the reasons stated above, is barred by law.