Union of India and Ors. Vs. Sunil Kumar Sarkar
EmailAppeal: Civil Appeal No. 7769 of 1995
(From the Judgment and Order dated 30.3.94 of the Calcutta High Court in A. No. 377/80 arising out of Matter No. 722 of 1979)
(From the Judgment and Order dated 30.3.94 of the Calcutta High Court in A. No. 377/80 arising out of Matter No. 722 of 1979)
Petitioner: Union of India and Ors.
Respondent: Sunil Kumar Sarkar
Apeal: Civil Appeal No. 7769 of 1995
(From the Judgment and Order dated 30.3.94 of the Calcutta High Court in A. No. 377/80 arising out of Matter No. 722 of 1979)
(From the Judgment and Order dated 30.3.94 of the Calcutta High Court in A. No. 377/80 arising out of Matter No. 722 of 1979)
Judges: S.P. BHARUCHA, N. SANTOSH HEGDE & Y.K. SABHARWAL, JJ.
Date of Judgment: Feb 28, 2001
Appearances:
Mr. Mukul Rohtagi, Additional Solicitor General, Mr. P.P. Malho-tra, Senior Advocate, Mr. R.N. Verma, Mr. C. Radhakrishna, (Mr. B.V.B. Das) Advocate for Mr. Arvind Kumar Sharma, Advocate/Advo-cates with them for the Appellants.
Mr. Bijan Kumar Ghosh, Advocate for the Respondent.
Head Note:
SERVICE LAWS
Central Civil Services (Classification, Control and Appeal) Rules, 1965
Rules 10 and 19 – Army Act, 1950 – Section 167 – Military services – Punishment under Army Act as well as Civil Service Rules – Maintainability- General court martial against respondent for defrauding the Border Road Organisation of which he was an employee culminating in six months’ imprisonment – Finding and punishment confirmed by the competent authority on 26.3.1977 – By that time respondent having already served six months’ imprisonment directed to be released – On 26.3.1977 re-spondent issued notice under Central Civil Services Rules as to why he should not be proceeded with thereunder – Subsequent departmental inquiry resulting in the dismissal of the respondent from service – Dismissal challenged by writ petition – Division Bench holding the dismissal to be unsustainable since it was based on the findings of the GCM which itself was defective and perverse having been arrived at without consideration of evidence – On further appeal, held, Division Bench erred in holding so since the court had not shown as to how the GCM and its findings were perverse. Held, Further that there was no double jeopardy and violation of Article 20, since court martial proceedings dealt with the penal aspect of the misconduct while the proceed-ings under the Central Civil Service Rules dealt with the disci-plinary aspect of the misconduct.
Held:
A perusal of the judgment impugned clearly shows that its finding that the decision of the GCM was arrived at without consideration of evidence is not factually supported by any material and is only an ipse dixit of the court. The Division Bench has not pointed out what is the evidence that has not been considered by the GCM and how its findings are perverse. In the absence of these basic facts, we are unable to agree with the Division Bench that the findings of the GCM on facts is either not based on material on record or is perverse. (Para 10)
The respondent in this case has been punished for the same mis-conduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tantamount to ‘double jeopardy’ and is in violation of Article 20 of the Constitution of India. Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two differ-ent fields though the crime of the misconduct might arise out of the same act. The court martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329 dated 23.9.1960 issued under the Central Rules and under Sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan & Ors. v. Union of India & Ors. (AIR 1983 SC 658). (Para 11)
Cases Reffered:
1. R. Viswan & Ors. v. Union of India & Ors. (AIR 1983 SC 658) (Para 11)
JUDGEMENT:
SANTOSH HEGDE, J.
1. A general court martial (GCM) under the provisions of the Army Act, 1950 was initiated against the respondent herein for certain allegations of defrauding the Border Road Organisation (‘the Oganisation’) in which the respondent was working as a Superintendent, Buildings & Roads, Grade-II. On the conclusion of the said GCM proceedings, he was found guilty of some of the charges framed against him and was sentenced to undergo R.I. for one year which sentence under the Army Act was subject to confir-mation by the higher authorities under Chapter XII of the Army Act. Pursuant to the said sentence, the respondent was taken into custody on the very day i.e. 28th July, 1976. When the conviction and sentence was taken up by the confirming authority, same was remanded back to the GCM for reconsideration. On remand, the GCM again heard the respondent’s Counsel and modified its earlier order whereby while finding the respondent again guilty reduced the earlier sentence of RI. for one year to that of six months. This order was also subject to confirmation. However, in view of the fact that the respondent who by virtue of the first order was undergoing the sentence, had completed the period of six months by that time, the GCM directed the release of the respondent from custody on 28th January, 1977. The second order of conviction was confirmed by the authority concerned on 26.3.1977.
2. In the meantime, the authorities acting under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short ‘the Central Rules’) with a view to ini-tiate disciplinary proceedings issued a show cause notice dated 26.3.1977 calling upon him to show cause why suitable order be not passed against him. The respondent submitted his reply to the said show cause notice. The authority on the conclusion of the said departmental inquiry under the said Rule dismissed the respondent from service. The appeals and the review petitions filed by the respondent to the appropriate authorities against his conviction by the GCM as well as his dismissal under the Central Rules came to be dismissed.
3. The respondent challenged these orders of his conviction under the Army Act as well as his dismissal under the Rules by way of a writ petition before a learned Single Judge of the Calcutta High Court who, after hearing the parties, noticed certain defects in the orders impugned before him, hence, allowed the writ petition and issued the following directions:
“The Chief Engineer, Project Sevak is directed to give a personal hearing to the petition and after such hearing he shall pass a fresh order either confirming the earlier order dated the 23rd October, 1978, or passing such an order as he may deem fit and proper. The fresh order must contain the reasons. Similarly I direct the Director-General of Border Roads to give a personal hearing to the petitioner in connection with his post-confirmation petition and pass a fresh order either confirming the earlier order dated the 23rd March, 1979, or passing a fresh order as he may think fit and proper. The fresh orders must contain the reasons.”
4. Against the said judgment of the learned Single Judge none of the respondents before the learned Single Judge, who are now appellants before us, preferred any appeal. Hence, the said order has become final so far as they are concerned. The respondent, however, not being satisfied, preferred an appeal before the Division Bench of the said High Court and the High Court as per its impugned order allowed the said appeal holding that the court martial proceedings as well as the disciplinary proceedings initiated by the appellants were vitiated by the fact that the authorities had chosen to keep the respondent under suspension without there being any reason therefor, and that the respondent was taken into custody immediately after the pronouncement of the sentence by the GCM without the said order being confirmed as required by the Army Act. The Division Bench also found against the disciplinary authority for having passed the impugned order of dismissal solely based on the findings of the court martial proceedings which according to the Division Bench, showed that the disciplinary authority had a pre-determined mind. It is also observed that the findings of the court martial proceedings were not based on the material on record and amounted to a perverse order.
5. It is against this order of the Division Bench dated 30.3.1994 that the appellants are before us in this appeal.
6. We have heard learned Counsel for the parties, and perused the records. As noticed above, one of the grounds relied upon by the Division Bench to pass the impugned order was that the respondent was kept under suspension by the disciplinary authority after the GCM proceedings were over and while he was still in custody. According to the Division Bench, this was contrary to Rule 10 of the Central Rules inasmuch as certain condition precedent re-quired under the Rule was not existing when the order of suspen-sion was made. It seems that the Division Bench was of the opin-ion that once a person is in custody the question of keeping him under suspension does not arise. We do not agree with this opin-ion of the Division Bench because the Division Bench failed to notice that the respondent was due to be released on 27.1.1977 after serving the six months’ R.I. imposed on him. After his release in the normal course, he was entitled to claim reinstate-ment in service unless departmental proceedings were initiated against him for the misconduct for which he was convicted. There-fore, the authority thought it necessary to keep the respondent under suspension, hence, the orders under Rule 10 of the Central Rules were issued keeping the respondent under suspension. Rule 10(1)(a) of the Central Rules empowers the appointing authority to place a Government servant under suspension if an inquiry is either being conducted against him or is contemplated against him. In the present case, a disciplinary authority had decided to initiate the disciplinary proceeding against the respondent and pursuant to the said decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central Rules, the respondent was kept under suspension. Therefore, the concerned authority was well within its statutory power to keep the respondent under suspension and, in our opinion, the High Court fell in error in finding fault with the said decision on the ground that there was no need to keep the respondent under suspension when he is under-going a sentence of imprisonment.
7. The next finding of the Division Bench that the GCM erred in taking the respondent into custody immediately after it imposed the sentence without the said order of sentence being confirmed by the higher authority is also contrary to the provisions of the Army Act. Section 167 of the said Act mandates that when a person is sentenced by a court martial his sentence shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer whether such sentence is revised or not. In the instant case, the court martial pronounced the sentence on 28.7.1976 and the respondent was taken into custody on the same day which was in accordance with Section 167 of the Army Act. The Division Bench, in our opinion, did not notice this provision of the Army Act when it found fault with the GCM for taking the respondent into custody before the sentence imposed by it was confirmed by the confirming authority.
8. The Division Bench also found fault with the order of dismis-sal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respond-ent in the court martial proceeding. The court in this regard held that the disciplinary authority had a pre-determined mind when he passed the order of dismissal. Here again, in our opinion, the Division Bench did not take into consideration Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a Government servant on his conviction in a criminal charge, the disciplinary authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19)on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitu-tion itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a Government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a pre-determined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show cause notice and reply to such show cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the Government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said disciplinary authori-ty had any pre-determined mind when it passed the order of dis-missal.
9. The Division Bench next came to the conclusion that the find-ing arrived at by the GCM is perverse. In regard to this finding, this is what the court has observed in its judgment :
“it also appears to us that the decision arrived at by the GCM was arrived at without consideration of evidence and as such the same are perverse. There has been no proper consideration of relevant facts and materials and no reasonable man acting bona fide and with proper consideration could have come to the im-pugned finding, rendering such decision/conviction and all pro-ceedings subsequent thereto to be void ab initio.”
10. A perusal of the judgment impugned clearly shows that its finding that the decision of the GCM was arrived at without consideration of evidence is not factually supported by any material and is only an ipse dixit of the court. The Division Bench has not pointed out what is the evidence that has not been considered by the GCM and how its findings are perverse. In the absence of these basic facts, we are unable to agree with the Division Bench that the findings of the GCM on facts is either not based on material on record or is perverse.
11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tanta-mount to ‘double jeopardy’ and is in violation of Article 20 of the Constitution of India. Having considered the arguments ad-dressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings oper-ate in two different fields though the crime of the misconduct might arise out of the same act. The court martial proceedings deal with the penal aspect of the misconduct while the proceed-ings under the Central Rules deal with disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329 dated 23.9.1960 issued under the Central Rules and under Sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan & Ors. v. Union of India & Ors. (AIR 1983 SC 658).
12. As noticed above, in view of the fact that the appellants have not challenged the directions issued by the learned Single Judge in the writ appeal, the same remain undisturbed by this judgment while we allow this appeal and quash the judgment of the Division Bench impugned before us. No order as to costs.
1. A general court martial (GCM) under the provisions of the Army Act, 1950 was initiated against the respondent herein for certain allegations of defrauding the Border Road Organisation (‘the Oganisation’) in which the respondent was working as a Superintendent, Buildings & Roads, Grade-II. On the conclusion of the said GCM proceedings, he was found guilty of some of the charges framed against him and was sentenced to undergo R.I. for one year which sentence under the Army Act was subject to confir-mation by the higher authorities under Chapter XII of the Army Act. Pursuant to the said sentence, the respondent was taken into custody on the very day i.e. 28th July, 1976. When the conviction and sentence was taken up by the confirming authority, same was remanded back to the GCM for reconsideration. On remand, the GCM again heard the respondent’s Counsel and modified its earlier order whereby while finding the respondent again guilty reduced the earlier sentence of RI. for one year to that of six months. This order was also subject to confirmation. However, in view of the fact that the respondent who by virtue of the first order was undergoing the sentence, had completed the period of six months by that time, the GCM directed the release of the respondent from custody on 28th January, 1977. The second order of conviction was confirmed by the authority concerned on 26.3.1977.
2. In the meantime, the authorities acting under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short ‘the Central Rules’) with a view to ini-tiate disciplinary proceedings issued a show cause notice dated 26.3.1977 calling upon him to show cause why suitable order be not passed against him. The respondent submitted his reply to the said show cause notice. The authority on the conclusion of the said departmental inquiry under the said Rule dismissed the respondent from service. The appeals and the review petitions filed by the respondent to the appropriate authorities against his conviction by the GCM as well as his dismissal under the Central Rules came to be dismissed.
3. The respondent challenged these orders of his conviction under the Army Act as well as his dismissal under the Rules by way of a writ petition before a learned Single Judge of the Calcutta High Court who, after hearing the parties, noticed certain defects in the orders impugned before him, hence, allowed the writ petition and issued the following directions:
“The Chief Engineer, Project Sevak is directed to give a personal hearing to the petition and after such hearing he shall pass a fresh order either confirming the earlier order dated the 23rd October, 1978, or passing such an order as he may deem fit and proper. The fresh order must contain the reasons. Similarly I direct the Director-General of Border Roads to give a personal hearing to the petitioner in connection with his post-confirmation petition and pass a fresh order either confirming the earlier order dated the 23rd March, 1979, or passing a fresh order as he may think fit and proper. The fresh orders must contain the reasons.”
4. Against the said judgment of the learned Single Judge none of the respondents before the learned Single Judge, who are now appellants before us, preferred any appeal. Hence, the said order has become final so far as they are concerned. The respondent, however, not being satisfied, preferred an appeal before the Division Bench of the said High Court and the High Court as per its impugned order allowed the said appeal holding that the court martial proceedings as well as the disciplinary proceedings initiated by the appellants were vitiated by the fact that the authorities had chosen to keep the respondent under suspension without there being any reason therefor, and that the respondent was taken into custody immediately after the pronouncement of the sentence by the GCM without the said order being confirmed as required by the Army Act. The Division Bench also found against the disciplinary authority for having passed the impugned order of dismissal solely based on the findings of the court martial proceedings which according to the Division Bench, showed that the disciplinary authority had a pre-determined mind. It is also observed that the findings of the court martial proceedings were not based on the material on record and amounted to a perverse order.
5. It is against this order of the Division Bench dated 30.3.1994 that the appellants are before us in this appeal.
6. We have heard learned Counsel for the parties, and perused the records. As noticed above, one of the grounds relied upon by the Division Bench to pass the impugned order was that the respondent was kept under suspension by the disciplinary authority after the GCM proceedings were over and while he was still in custody. According to the Division Bench, this was contrary to Rule 10 of the Central Rules inasmuch as certain condition precedent re-quired under the Rule was not existing when the order of suspen-sion was made. It seems that the Division Bench was of the opin-ion that once a person is in custody the question of keeping him under suspension does not arise. We do not agree with this opin-ion of the Division Bench because the Division Bench failed to notice that the respondent was due to be released on 27.1.1977 after serving the six months’ R.I. imposed on him. After his release in the normal course, he was entitled to claim reinstate-ment in service unless departmental proceedings were initiated against him for the misconduct for which he was convicted. There-fore, the authority thought it necessary to keep the respondent under suspension, hence, the orders under Rule 10 of the Central Rules were issued keeping the respondent under suspension. Rule 10(1)(a) of the Central Rules empowers the appointing authority to place a Government servant under suspension if an inquiry is either being conducted against him or is contemplated against him. In the present case, a disciplinary authority had decided to initiate the disciplinary proceeding against the respondent and pursuant to the said decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central Rules, the respondent was kept under suspension. Therefore, the concerned authority was well within its statutory power to keep the respondent under suspension and, in our opinion, the High Court fell in error in finding fault with the said decision on the ground that there was no need to keep the respondent under suspension when he is under-going a sentence of imprisonment.
7. The next finding of the Division Bench that the GCM erred in taking the respondent into custody immediately after it imposed the sentence without the said order of sentence being confirmed by the higher authority is also contrary to the provisions of the Army Act. Section 167 of the said Act mandates that when a person is sentenced by a court martial his sentence shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer whether such sentence is revised or not. In the instant case, the court martial pronounced the sentence on 28.7.1976 and the respondent was taken into custody on the same day which was in accordance with Section 167 of the Army Act. The Division Bench, in our opinion, did not notice this provision of the Army Act when it found fault with the GCM for taking the respondent into custody before the sentence imposed by it was confirmed by the confirming authority.
8. The Division Bench also found fault with the order of dismis-sal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respond-ent in the court martial proceeding. The court in this regard held that the disciplinary authority had a pre-determined mind when he passed the order of dismissal. Here again, in our opinion, the Division Bench did not take into consideration Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a Government servant on his conviction in a criminal charge, the disciplinary authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19)on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitu-tion itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a Government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a pre-determined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show cause notice and reply to such show cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the Government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said disciplinary authori-ty had any pre-determined mind when it passed the order of dis-missal.
9. The Division Bench next came to the conclusion that the find-ing arrived at by the GCM is perverse. In regard to this finding, this is what the court has observed in its judgment :
“it also appears to us that the decision arrived at by the GCM was arrived at without consideration of evidence and as such the same are perverse. There has been no proper consideration of relevant facts and materials and no reasonable man acting bona fide and with proper consideration could have come to the im-pugned finding, rendering such decision/conviction and all pro-ceedings subsequent thereto to be void ab initio.”
10. A perusal of the judgment impugned clearly shows that its finding that the decision of the GCM was arrived at without consideration of evidence is not factually supported by any material and is only an ipse dixit of the court. The Division Bench has not pointed out what is the evidence that has not been considered by the GCM and how its findings are perverse. In the absence of these basic facts, we are unable to agree with the Division Bench that the findings of the GCM on facts is either not based on material on record or is perverse.
11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tanta-mount to ‘double jeopardy’ and is in violation of Article 20 of the Constitution of India. Having considered the arguments ad-dressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings oper-ate in two different fields though the crime of the misconduct might arise out of the same act. The court martial proceedings deal with the penal aspect of the misconduct while the proceed-ings under the Central Rules deal with disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329 dated 23.9.1960 issued under the Central Rules and under Sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan & Ors. v. Union of India & Ors. (AIR 1983 SC 658).
12. As noticed above, in view of the fact that the appellants have not challenged the directions issued by the learned Single Judge in the writ appeal, the same remain undisturbed by this judgment while we allow this appeal and quash the judgment of the Division Bench impugned before us. No order as to costs.
