State of Assam & ANR Vs. J. N. Roy
Biswas [1975] INSC 241 (6 October 1975)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1975 AIR 2277 1976 SCR (2) 128 1976
SCC (1) 234
CITATOR INFO :
R 1976 SC2037 (7) D 1979 SC1923 (3) D 1985
SC1461 (5)
ACT:
Service-Government servant exonerated and reo
instated after enquiry- Reopening of enquiry If competent.
HEADNOTE:
The respondent, a Government servant, was
suspended from service in 1960. on receipt of the findings of the Inquiry
officer, a show cause notice was issued. The appointing authority exonerated
the respondent but did not make a reasoned order. Later, however, the case WAS
reopened. As the de novo recording of evidence progressed the respondent moved
the High Court contending that there was no power in the Government to re-open
a case which had already been concluded by exoneration and re-instatement.
The High Court granted the relief .
Dismissing the appeal of the state,
HELD.. Had the Government servant
misappropriated government money he should have been punished expeditiously.
But having been exculpated after enquiry, the
State could go at him by re-opening the proceedings only if the rules vested
some such revisory power No rule of double jeopardy bars the reopening of the
case. But once a disciplinary case has closed and the official re-instated the
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 a legal provision or other vitiating factor
invalidating earlier enquiry.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 899 of 1968.
Appeal by special leave from the judgment and
order dated the 15th February, 1967 of the Assam and Nagaland High Court in C.
Rule No. 231 of 1965.
Naunit Lal, for the appellants.
Sukumar Ghose, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-Was this virtually valstudinarian appeal by the Sate against
an old and perhaps, by now, superannuated emyloyee necessary? Litigation by the
State means laying out public resources, in a country of much poverty and
scarce resources, and only if the demanding justice of a case calls for it
should an appeal, otherwise of inconsequence, be carried to the highest Court.
In the present instance, a veterinary assistant, the respondent herein, was
suspended in 1960 followed by disciplinary proceedings. An enquiry officer,
appointed by the Director of Animal Husbandry and Veterinary Department,
conducted the proceedings, submitted his report of findings adverse to the
respondent, whereupon a show cause notice indicating the penalty of dismissal
was issued. The 'delinquent' pleaded innocence by his explanatory statement and
the Director, on a study of the case in the light of the explanation offered,
directed reinstatement in a cryptic order which runs thus:
129 ORDER No. 81 DATED 11-12-62 Shri J. N.
Roy Biswas, Manager, East Harinagar Live stock Farm (Cachar) who was placed
under suspension vide this office order No. 42 dated 23-12- 60, is re-instated
in the same post of Manager, at East Harinagar Livestock Farm with effect from
the date the reports for duty.
Sd/- G. K. Mehra, Director of Animal
Husbandry & Vety.
Department, Assam, Gauhati." Memo No.
PI-918/26822 Dated Gauhati, the 13th Dec.
'62. Copy forwarded to:-
1. Shri J. N. Roy Biswas, Manager, East
Harinagar Livestock Farm (under suspension) C/o Brahmachari Maharaj Shri
Dawarikanath, Ramkrishna Seva Samity, Chatribari, Gauhati, for information and
necessary action. The findings and orders of the proceeding will follow.
2 , . . . . .
3 The findings and orders together with the
regularisation of the period of suspension of Shri J.
N. Roy Biswas with effect from 5-1-61 to the
date of his reporting for duty at East Harinagar Livestock Farm will be
communicated separately. The date of joining of Shri Biswas may be in formed to
this office separately.
Sd/- B. K. Das for Director of Animal Hy.
& Vety.
lt is noteworthy that no reasoned findings
were recorded. That particular officer retired and his successor wrote to the
Joint Secretary to Government that from the materials of the case the
'delinquent' r merited punishment and the proceedings be re-opened. This was
done and as the de novo recording of evidence progressed the respondent moved
the High Court under Art. 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.
This grievance was held good by the High
Court which granted the relief sought.
What is the conspectus of circumstances ? A
small veterinary official, a long enquiry for mis-conduct, a final direction
cancelling suspension and reinstating him, the likelihood of the man having
retired (15 years have gone by) and nothing on record to substantiate any fatal
infirmity in the earlier enquiry or dereliction of duty by the disciplinary
authority except that a reasoned record of findings was to be forthcoming, but
did not, because he had retired in the mean while. No action against the
retired Director for this alleged omission was felt justified and perhaps was
not warranted but with persistent 130 litigative zeal Government has come in
appeal to this Court against the petty official. Had he misappropriated
Government money he should have been punished expeditiously.
But having been exculpated after enquiry, the
State could go at him by re-opening the proceedings only if the rules vested
some such revisory power. None such has been shown to exist although one
wonders why a rule vesting such a residuary power of a supervisory nature to be
exercised in the event . of a subordinate disciplinary authority not having
handled a delinquent adequately or rightly is brought to the attention of
Government has not been made. No rule of double jeopardy bars but absence of
power under a rule inhibits a second inquiry by the Disciplinary authority
after the delinquent had once been absolved. The appeal must fail and is dismissed
with costs.
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 re-instated, presumably on full
exoneration. a chagrined Government cannot re-start the exercise in the absence
of specific power to review or revise, vested by rules ill some authority. The
basics of the rule of law cannot be breached without legal provision or other
vitiating factor invalidating the earlier enquiry.
For the present, this is theoretical because
no such deadly defect is apparent on the record.
P.B.R. Appeal dismissed.
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