Whether Principles of Double Jeopardy would apply to Departmental Proceedings [Case Law]

Constitution of India - Article 20(2) - Life Insurance Corporation of India (Staff) Regulations, 1960 - Double Jeopardy - Notwithstanding the fact that in a disciplinary action which preceded the judgment of conviction and sentence a punishment other than a punishment of compulsory retirement or removal or dismissal has been imposed on an employee, the employer would still have the power or authority to pass appropriate further orders in cases where on the grounds of conduct which led to the imposition of penalty, he or she is also convicted on a criminal charge.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.N. Ravindran & R.Narayana Pisharadi, JJ.

W.A.No.2579 of 2017

Dated this the 21st May, 2018 

AGAINST THE JUDGMENT IN W.P.C.NO.17786/2014 DATED 11.12.2017

APPELLANT(S)/PETITIONER

T. SIVADASAN ASSISTANT BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, KUNNAMKULAM BRANCH, THRISSUR DISTRICT.

BY ADVS.SRI.S.M.PRASANTH SMT.ASHA BABU 

RESPONDENT(S)/RESPONDENTS

1. THE LIFE INSURANCE CORPORATION OF INDIA CENTRAL OFFICE, YOGASHEMA, JEEVAM BHIMA MARG, MUMBAI - 400 021, REPRESENTED BY ITS MANAGING DIRECTOR.

2. THE ZONAL MANAGER (DISCIPLINARY AUTHORITY), LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONAL OFFICE, LIC BUILDING, ANNA SALAI, P.B.NO. 2450, CHENNAI - 600 002.

3. THE SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, THRISSUR DISTRICT - 680 001.

R1-R3 BY ADV. SRI.S.EASWARAN, SC, LIC 

J U D G M E N T

P.N. Ravindran, J.

The appellant is the petitioner in W.P.(C) No.17786 of 2014, wherein he had challenged Ext.P4 show cause notice dated 10.7.2007, issued by the second respondent calling upon him to show cause why the penalty of “removal from service” shall not be imposed on him in terms of Regulation 39(1)(f) of the Life Insurance Corporation of India (Staff) Regulations, 1960 (for short “the Regulations”). By judgment delivered on 11.12.2017, the learned single Judge dismissed the writ petition. The brief facts of the case are as follows: 

2. The appellant entered service in the Life Insurance Corporation of India (hereinafter referred to as “the LIC” for short) on 1.2.1986 as a Development Officer. He was later promoted as Assistant Manager (Sales). While he was working as Assistant Branch Manager (Sales) in the Kalpetta Branch of the LIC, the second respondent issued and served on him Ext.P1 memo of charges dated 8.2.2002. The charges levelled against the appellant in Ext.P1 memo of charges read as follows: 

“1. That while you were working as Development Officer, code No.86076 in Kunnamkulam Branch under Ernakulam Division during the period from 1986 to 1988, Sri P.K.Ummer was appointed as an LIC Agent under you vide agency code no.1328799 on your introduction and recommendation on 18.07.86. However, you canvassed the policies in the name of Sri P.K.Ummer without his knowledge and concurrence by forging the agent's signature in the proposal forms, agent's confidential report, etc. in respect of the policies mentioned in Annexure I while Sri P.K.Ummer was in India.

2. That you entered into a criminal conspiracy with Shri T.S.Dharmarajan, Assistant, S.R.No.553239, Kunnamkulam Branch Office under Ernakulam Division during the period from 1986 to 1998 and alongwith Shri T.S.Dharmarajan canvassed policies in the name of Shri P.K.Ummer, LIC Agent, Code no.1328799 without his knowledge and concurrence by forging the agent's signature in some or all of the proposal forms, agent's confidential reports, moral hazard reports, etc. in respect of the policies mentioned in Annexure II while Shri P.K.Ummer was in India and even after departure of Shri P.K.Ummer to Sharjah on 19.04.89.

3. That while you were working as a Development Officer, Kunnamkulam Branch under Ernakulam Division, you had colluded with one Shri T.S.Dharmarajan, Assistant, Kunnamkulam Branch Office under Ernakulam Division to secure new business under policies given in Annexure III under the agency of P.K.Ummer, LIC Agent, Code no.1328799 and had perpetrated fraud on LIC by cheating the Corporation by introducing NB in a unlawful manner and gained pecuniary advantage for yourself by way of receiving ACA, IB etc. resulting in excess payment to you to the tune of Rs.10,593.44 by way of ACA and Rs.40,043.74 by way of IB from LIC knowingly well that an LIC employee should not canvass business and that it should be done only by an authorised agent.

4. That agency application for allotment of agency in the name of Shri P.K.Ummer has been written by you in your own handwriting and you have connived and/or connived with Shri T.S.Dharmarajan in canvassing policies in the name of Shri P.K.Ummer leading to the agency of Shri P.K.Ummer being run as a benami agency.” 

3. By Ext.P1, the appellant was called upon to state in writing within a period of 15 days from the date of the receipt of chargesheet as to whether he admits the charges. The appellant submitted a reply dated 26.2.2002 denying the charges levelled against him. The disciplinary authority, after considering his reply, decided to enquire into the charges and consequently appointed Sri T.S.Ramanujam, Manager (F&A), Divisional Office, Ernakulam, as the Enquiry Officer. After enquiry, the said enquiry officer submitted a report dated 15.3.2005 holding the appellant guilty of the charges levelled against him. After a copy of the enquiry report was furnished to the appellant and his reply was received, the disciplinary authority issued a show cause notice dated 28.6.2005 calling upon the appellant to show cause why the penalty of reduction in basic pay by four stages, in terms of Regulation 39(1)(d) and recovery of the sum of Rs.50,637.18 being the undue pecuniary benefit derived by him and additional conveyance allowance availed by him should not be imposed on him in terms of Regulation 39(1)(c) of the Regulations. The appellant submitted a reply dated 27.7.2005. After considering his reply, the disciplinary authority imposed on the appellant the punishment of reduction in basic pay by four stages and recovery of the sum of Rs.50,637.18 as proposed, by Ext.P2 order dated 26.9.2005.

4. The appellant challenged Ext.P2 order by filing an appeal before the Managing Director of the LIC. By Ext.P3 proceedings dated 11.3.2006 the appellate authority dismissed the appeal. In respect of the very same transactions which led to the disciplinary action, the appellant was also prosecuted for the offences punishable under sections 120-B, 420, 468 and 471 of the Indian Penal Code read with sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988, by the Central Bureau of Investigation. By judgment delivered on 23.11.2006 in C.C.No.3 of 2000, the Court of the Special Judge (SPE/CBI)-I, Ernakulam convicted the appellant of the offences punishable under sections 120-B, 420, 468 and 471 of the Indian Penal Code read with sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for 03 years and to pay a fine of Rs.20,000/- and in default, to undergo simple imprisonment for 01 year under section 120-B IPC read with sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and sections 420, 468 and 471 IPC. He was further sentenced to undergo rigorous imprisonment for 03 years and to pay a fine of Rs.20,000/- and in default, to undergo simple imprisonment for 01 year under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988; to undergo rigorous imprisonment for 02 years and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for 06 months under section 420 IPC; to undergo rigorous imprisonment for 02 years and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for 06 months under section 468 IPC; to undergo simple imprisonment for 02 years under section 471 IPC, the substantive sentences of imprisonment to run concurrently. The judgment of conviction and sentence is under challenge in Crl.Appeal No.2336 of 2006 filed by the appellant which is presently pending in this court. By order passed on 1.12.2006 in Crl.M.A.No.12284 of 2006 in Crl.A.No.2336 of 2006, this court has suspended the execution of the sentence and enlarged the appellant on bail, subject to the conditions stipulated therein.

5. After the execution of the judgment of conviction and sentence was suspended, the second respondent issued and served on the appellant Ext.P4 show cause notice dated 10.7.2007 calling upon him to show cause why the penalty of removal from service shall not be imposed on him in terms of Regulation 39(1)(f) of the Regulations. Upon receipt of Ext.P4 show cause notice, the appellant submitted Ext.P5 reply wherein the main contention raised was that the judgment of conviction and sentence has not become final. Several years later, he filed W.P.(C) No.17786 of 2014 in this court on 10.7.2014 challenging Ext.P4 and seeking the following reliefs: 

“i) To call for the records leading upto Ext.P4 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

ii) To declare that the initiation of proceedings, after the culmination of an earlier disciplinary proceedings, by Ext.P4 notice for imposing another penalty for the very same cause of action, is violative of Articles 14, 16, 19 and 21 of the Constitution of India.

iii) To issue a writ of mandamus forbearing the respondents from continuing further with any steps pursuant to the Ext.P4 notice or otherwise to take fresh departmental proceedings or impose any penalty against the petitioner.

iv) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.” He contended that in respect of the very same allegations he has been proceeded against and punished and therefore he cannot be proceeded against and punished once again. He contended that the action taken by the LIC is wholly without jurisdiction and violates Articles 14, 16, 19 and 21 of the Constitution of India. He further contended that the judgment of conviction and sentence has not attained finality and for that reason also, the impugned show cause notice is liable to be set aside. It was his contention that Regulation 39 cannot be invoked twice in respect of the very same incident.

6. W.P.(C) No.17786 of 2014 came up for admission hearing before this court on 11.7.2014. On that day the writ petition was admitted and notice ordered to the respondents. This court also passed an interim order staying all further proceedings pursuant to Ext.P4 notice pending disposal of the writ petition. The respondents in the writ petition entered appearance on 22.7.2014 and filed a counter affidavit dated 30.10.2014 inter-alia contending that upon receipt of Ext.P4 show cause notice the appellant submitted his reply on 3.9.2007 and thereafter a final order was passed on 12.7.2014 imposing the penalty proposed in the show cause notice. It was stated that before the said order could be served on the writ petitioner, he had obtained interim orders from this court. The respondents contended that the challenge to Ext.P4 is belated. They also contended that the appellant can challenge the order passed on 12.7.2004 by preferring appeal before the appellate authority and a further Memorial to the Chairman of the LIC and that if he is still aggrieved after exhausting the aforesaid remedies, he can move this court. The respondents also defended the action taken by them to remove the appellant from service. It was contended that the disciplinary action which culminated in Ext.P2 order and the action proposed under Ext.P4 show cause notice are under different grounds and under different causes of action and therefore, the appellant cannot contend that Article 20(2) of the Constitution of India has been violated. Relying on Regulation 39, the respondents contended that if penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority is empowered to consider the circumstances of the case and pass such orders as it deems fit, without even holding an enquiry. It was contended that merely for the reason that the execution of the judgment of conviction and sentence has been suspended by this court in appeal, the LIC is not deprived of the power to pass appropriate orders and that in the event of the appeal filed by the appellant being allowed and the judgment of conviction being set aside by this court, he can be reinstated in service.

7. The appellant filed a reply affidavit dated 5.11.2014 wherein he contended that he has not raised the plea of double jeopardy, that the point raised by him is that once Regulation 39 is invoked and a punishment imposed, it cannot again be imposed. He also filed an application I.A.No.19239 of 2017 to amend the writ petition by incorporating a challenge to the orders passed pursuant to Ext.P4 show cause notice, a copy of which was produced and marked as Ext.P6 along with the said application. He contended in the application for amendment that in respect of the very same act of misconduct for which he has already been punished, his service cannot be terminated on the ground that in respect of the same act of misconduct he was convicted in a criminal case, especially when the appeal challenging the judgment of conviction and sentence is pending in this court.

8. The learned single Judge considered the rival contentions and held that the principle of double jeopardy would apply in departmental proceedings as well, that if an employee has to suffer penalty twice; one based on departmental proceedings and the other based on the conviction in criminal proceedings; the principles of double jeopardy would apply, if the first of such penalties is the final penalty imposed on the delinquent. However, the impugned action was upheld on the ground that Regulation 39(4) empowers the disciplinary authority to impose penalty. It was held that if the appeal filed by the appellant is allowed by this court, setting aside the judgment of conviction, the appellant will be entitled to all consequential service benefits in accordance with law including salary for the period he was kept out of service. The writ petition was accordingly dismissed. The writ petitioner has, aggrieved thereby, filed this appeal.

9. We heard Sri K.Ramakumar, learned Senior Advocate appearing for the appellant and Sri S.Easwaran, learned standing counsel appearing for the LIC. Sri K.Ramakumar, learned senior counsel appearing for the appellant submitted that subjecting an employee to two proceedings on the same set of allegations will be violative of Articles 14, 15, 16, 19 and 21 of the Constitution of India. It was submitted that as the judgment of conviction has not attained finality and is pending in appeal, if the LIC proceeds to remove the appellant from service, it would virtually amount to reviewing the earlier administrative order (Ext.P2) whereby the punishment of reduction in basic pay by four stages was imposed and imposing on the appellant a more stringent punishment, viz. the punishment of removal from service. Relying on the decision of the Andhra Pradesh High Court in K.Srinivasa Rao v. the Director of Agriculture (1971 Lab.I.C.779), the decisions of the Apex Court in Union of India v. K.D.Pandey and another {(2002) 10 SCC 471}, Lt.Governor, Delhi and others v. HC Narinder Singh {(2004) 13 SCC 342) and Kanailal Bera v. Union of India and others {(2007) 11 SCC 517) and that of the Madras High Court in D.Narayanan v. District Revenue Officer, Virudhunagar, Virudhunagar District and Others (2009 (4) MLJ 708), learned senior counsel for the appellant contended that the appellant who was subjected to disciplinary action resulting in a final order imposing penalty, cannot again be proceeded against on the same set of facts on the basis of his conviction by a criminal court, especially when the judgment of conviction has not attained finality. Learned senior counsel contended that the learned single Judge erred in dismissing the writ petition on the ground that the Regulations empower the disciplinary authority to proceed against an employee following the conviction of the employee by the criminal court.

10. Per contra, Sri S.Easwaran, learned standing counsel for the LIC contended that in order to attract Article 20(2) of the Constitution of India, the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding before a court or a judicial tribunal and not before a tribunal which entertains a departmental or an administrative enquiry though set up by a statute but which is not required by the law to try a matter judicially and legally. Learned standing counsel contended that in such circumstances, the learned single Judge erred in holding that the principles of double jeopardy would apply to departmental proceedings, even while dismissing the writ petition. Learned standing counsel invited our attention to the decisions of the Apex Court in Maqbool Hussain v. State of Bombay (AIR 1953 SC 325), S.A.Venkataraman v. Union of India (AIR 1954 SC 375), Union of India v. Sunil Kumar Sarkar {(2001) 3 SCC 414), State of Haryana v.Balwant Singh {(2003) 3 SCC 362) and the decision of a Division Bench of this court in Gireesan v. Indian Overseas Bank (1994 (1) KLT 163) in support of the said submission. Referring to Regulation 39 of the Regulations, learned counsel contended that the said provision reserves power with the LIC to deal with the case of an employee on whom penalty has been imposed in disciplinary proceedings and was also prosecuted for the same misconduct, if after trial, he is convicted of a criminal charge. Learned counsel contended that similar provisions occur in other service regulations as well, including that of the State and Central Governments and therefore, no exception can be taken to Ext.P4 notice or Ext.P6 order. Learned counsel contended that if the power conferred under 39(4) of the Regulations is not invoked, the Life Insurance Corporation will have to keep in service an employee who has been convicted on a criminal charge merely for the reason that in respect of the very same misconduct a punishment other than the punishment of compulsory retirement or removal from service or dismissal was imposed in the disciplinary action. Learned counsel submitted that such being the situation, no interference is called for with the impugned judgment.

11. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. Article 20(2) of the Constitution of India stipulates that “No person shall be prosecuted and punished for the same offence more than once”. Section 300 of the Code of Criminal Procedure bars a second trial of a person for the same offence when a court of competent jurisdiction has already convicted or acquitted him. Section 26 of the General Clauses Act, 1897 stipulates that “where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” The principle embodied in Article 20(2) of the Constitution, Section 300 of the Code of Criminal Procedure and section 26 of the General Clauses Act, 1897 is based on the maxim “nemo debet bis vexari pro una et eadem causa” which means that a person should not be vexed twice with respect to the same cause. The question that arises before us is whether the appellant who has been found guilty of misconduct in a domestic enquiry and punished by the disciplinary authority can be proceeded against once again by the disciplinary authority after the appellant was convicted and sentenced by the criminal court for having committed offences punishable under the Indian Penal Code/ Prevention of Corruption Act, 1988, namely, the acts of misconduct alleged against him and proved in the disciplinary enquiry.

12. The applicability of Article 20(2) of the Constitution of India arose for consideration before a Constitution Bench of the Apex Court in Maqbool Hussain v. State of Bombay (AIR 1953 SC 325). Maqbool Hussain arrived at Santa Cruz Airport from Jeddah on 6.11.1949. On arrival he did not declare that he had brought gold with him. However on a search it was found that he had brought with him 107.2 tolas of gold in contravention of a notification dated 25.8.1948 issued by the Government of India. The Customs Authorities thereupon took action under the Sea Customs Act, 1878 and confiscated the gold as per order passed on 19.12.1949. The owner of the gold was however given the option to pay a fine of Rs.12,000/- in lieu of such confiscation. This option was to be exercised within four months from the date of the order. Nobody including Maqbool Hussain came forward to redeem the gold. A few months later, a complaint was filed against Maqbool Hussain in the Court of the Chief Presidency Magistrate, Bombay alleging that he has committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947, read with the notification dated 25.8.1948. Maqbool Hussain thereupon filed a writ petition in the High Court of Bombay contending that his prosecution was in violation of the fundamental right guaranteed to him under Article 20(2) of the Constitution of India. When the issue reached the Apex Court, the Apex Court held that in order that the protection of Article 20(2) can be invoked by a person there must have been a prosecution and punishment in respect of the same offence before the court of law or a tribunal required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though setup by a statute but not required to proceed on legal evidence given on oath. The Apex Court thereafter proceeded to hold that the Sea Customs Authority was not a judicial tribunal and the adjudging of confiscation does not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.

13. Later, in S.A.Venkataraman v. Union of India and Another (AIR 1954 SC 375) another constitution Bench of the Apex Court held, following the decision in Maqbool Hussain v. State of Bombay (supra), that an enquiry under the Public Servants (Inquiries) Act, 1850 is not a prosecution, that there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force; nor is there any question of imposing punishment prescribed by the law which makes that act or omission an offence. The Apex Court also observed that an order of dismissal of a servant cannot be regarded as a punishment for an offcence punishable under particular sections of the Indian Penal Code or of the Prevention of Corruption Act, 1947. Paragraphs 15 and 16 of the decision of the Apex Court in S.A.Venkataraman v. Union of India and Another (supra) which are relevant for the purpose of this case are extracted below: 

“15. It may be pointed out that the words "prosecution" and "punishment" have no fixed connotation and they are susceptible of both a wider and a narrower meaning; but in Article 20(2) both these words have been used with reference to an "offence" and the word "offence" has to be taken in the sense in which it is used in General Clauses Act as meaning "an Act or omission made punishable by any law for the time being in force". It follows that the prosecution must be in reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribes. The acts alleged to have been committed by the petitioner in the present case and on the basis of which the charges have been framed against him do come within the definition of "offences" described in Sections 161 of 165 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. The Public Servants (Inquiries) Act does not itself create any offence nor does it provide any punishment for it. Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain penalties upon public servants for good and sufficient reasons. The rule does not mention any particular offence and obviously can create none. It is to enable the Government to come to the conclusion as to whether good and sufficient reasons exist, within the meaning of rule 49 of Civil Services rules for imposing the penalties of removal, dismissal or reduction in rank upon a public servant that an enquiry may be directed under Act 37 of 1850. A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word "prosecution" has been used would not make the preceding before the Commissioner, one for prosecution of an offence. As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than mere fact finding enquiry. This is conclusively established by the provisions of Sections 21 and 22 of the Act. At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government. Under Section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take a further evidence or given further explanation of his opinion. When Special Commissioners are appointed, their report could be referred to the court or other authority to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take.

16. Then again neither Section 21 nor Section 22 of the Act says anything about punishment. There is no power in the Commissioner even to express any opinion about punishment and Section 22 only contemplates such order as the Government can pass in its capacity as employer in respect to servants employed by it. As has been said already, an order of dismissal of a servant cannot be regarded as a punishment for an offence punishable under particular Sections of the Indian Penal Code or of the Prevention of Corruption Act. A some what analogous case would be that of a member of the Bar whose name is struck off the rolls on grounds of professional misconduct, in exercise of disciplinary jurisdiction by the proper authority. The professional misconduct might amount to a criminal offence, but if we are to accept the petitioner's contention as correct, the man cannot be prosecuted for it, even though the authority inflicting the penalty of removal was not a competent court to investigate any criminal charge nor was the punishment imposed in exercise of disciplinary jurisdiction a punishment for an offence.” 

14. The very same issue arose before a Division Bench of this court in Gireesan v. Indian Overseas Bank (1994 (1) KLT 163). Disciplinary action was initiated against Gireesan, an employee of the Indian Overseas Bank for acts of misconduct and it resulted in the imposition of the punishment of discharge from service. On appeal, the Deputy General Manager of the Indian Overseas Bank reduced the punishment to stoppage of five future increments with cumulative effect. Gireesan thereafter rejoined duty on 11.4.1984. In the meanwhile, the Central Bureau of Investigation had registered a case against him for offences punishable under Sections 409, 465 and 477- A of the Indian Penal Code and Section 5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. After trial, the Special Judge (CBI/SPE), Ernakulam found Gireesan guilty of the offences alleged against him and sentenced him to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for another period of 15 days. While the trial was in progress, Gireesan was suspended from service. After the judgment of the Special Judge (CBI/SPE), Ernakulam, he was dismissed from service. He thereupon challenged the order of dismissal by filing a writ petition in this court. The writ petition was dismissed by judgment delivered on 15.3.1993. A Division Bench of this court, after considering the decisions of the Apex Court above referred to, dismissed the appeal filed by him and held as follows: 

“11. The law on this aspect has been laid down in the two decisions of the Supreme Court aforementioned. The words used in Art.20(2) of the Constitution afford a clear indication that the proceeding in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding before a court of law and judicial tribunal and not before a Tribunal which entertains a departmental or an administrative enquiry. The purpose of a domestic enquiry is only to help the disciplinary authority to come to a conclusion regarding the mis-behaviour of an employee. It is open to the disciplinary authority to adopt the enquiry report or to differ from it. In such an enquiry there is no question of an offence being investigated or an act or omission being punished by any law for the time being in force. Moreover, there is also no question of imposing any punishment prescribed by law which makes that act or omission an offence. The punishment awarded in pursuance to the conviction of appellant by the Special Judge does not amount to a violation of the fundamental right guaranteed under Art.20(2) of the Constitution, nor can it be said that appellant is vexed twice with respect to the same matter.” 

15. The issue again came up for consideration before the Apex Court in Union of India and others v. Sunil Kumar Sarkar {(2001) 3 SCC 414}. Sunil Kumar Sarkar who was working as Superintendent, Buildings and Roads, Grade II in the Border Road Organisation, was court-martialled under the provisions of the Army Act, 1950 and sentenced to undergo rigorous imprisonment for one year, subject to confirmation by higher authorities under Chapter XII of the Army Act. He was taken into custody on 28.7.1976, the day the sentence was pronounced. When the conviction and sentence was taken up by the confirming authority, it was remanded to the General Court Martial for reconsideration. After remand, the General Court Martial modified its earlier order and reduced the sentence of imprisonment to six monhs, subject to confirmation by the higher authorities. However, by the time the order was passed, Sunil Kumar Sarkar had undergone the reduced sentence. The General Court Martial therefore directed his release from custody on 28.1.1977. The order of conviction passed by the General Court Martial was confirmed by the competent authority on 26.3.1977. On the same day, disciplinary action was initiated against him under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. After enquiry, the disciplinary authority passed an order dismissing him from service. The appeal and the review petition filed from the conviction by the General Court Martial as well as the order of dismissal passed by the disciplinary authority were dismissed. He thereupon filed a writ petition in the Calcutta High Court. The learned single Judge after hearing both sides, allowed the writ petition and directed the Chief Engineer, the disciplinary authority and the Director General of Border Roads, the authority which confirmed the order of conviction passed by the General Court Martial, to pass fresh orders after affording Sunil Kumar Sarkar an opportunity of being heard. None of the respondents appealed from the judgment of the learned single Judge. Sunil Kumar Sarkar however appealed. On appeal the Division Bench of the High Court held that the Court Martial proceedings as well as the disciplinary action against him are vitiated by reason of the fact that he was kept under suspension without there being any reason therefor and was taken into custody immediately after the pronouncement of the sentence without the said order being confirmed as required by the Army Act. The Division Bench also held that the order of dismissal based solely on the finding of the court martial proceedings showed that the disciplinary authority had a predetermined mind. The Union of India thereupon moved the Apex Court. Allowing the appeal and restoring the judgment of the learned single Judge, the Apex Court held as follows: 

“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, 1965. 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 different fields though the crime or 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 the 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 v. Union of India, (1983) 3 SCC 401.” 

16. The question whether forfeiture of pension in addition to the punishment imposed under section 71 of the Army Act, 1950 amounted to double jeopardy arose for consideration before the Apex Court in Union of India v. P.D.Yadav {(2002) 1 SCC 405}. Dealing with the said question, the Apex Court held in P.D.Yadav (supra) as follows: 

“25. A contention, though feebly, was advanced of behalf of some of 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 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 nemo 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 case." 

17. The issue again arose before the Apex Court in State of Haryana v. Balwant Singh [(2003) 3 SCC 362]. Balwant Singh was a driver of the Haryana Roadways. The bus which he was driving was involved in a motor accident resulting in the death of a person. In the wake of an award passed by the Motor Accidents Claims Tribunal awarding compensation to the dependents of the victim, disciplinary action was initiated against him under the Haryana Civil Services (Punishment and Appeal) Rules, 1987. In that action, the punishment of reduction of pay to the minimum of the scale of pay of driver for a period of four years was passed. In respect of the very same motor accident, he was also prosecuted for the offences punishable under Section 279, 337, 338 and 304-A of the Indian Penal Code. After trial he was convicted in the criminal case. Based on the conviction, the General Manager of the Haryana Roadways passed an order dated 17.9.1992 terminating his services. After he was released from the jail he filed an appeal before the Commissioner and Secretary, Haryana Roadways against the order terminating his services on the ground that he could not be tried twice for the same offence. He thereafter filed a suit alleging that no proper opportunity was given to him and no enquiry was held before the termination order was passed based on the judgment of the criminal court. After trial, the suit was dismissed. Balwant Singh unsuccessfully appealed. He thereafter moved the High Court of Punjab and Haryana by filing R.S.A.No.2154 of 1998. The second appeal was allowed on the ground that an employee could not be punished twice for the same offence in view of Article 20(2) of the Constitution of India. The State of Haryana thereupon moved the Apex Court. Allowing the appeal filed by the State of Haryana, the Apex Court held as follows: 

“4. From the facts that are not in dispute, it is abundantly clear that the order dated 12-3-1990 was passed against the respondent reducing the pay to the minimum of time scale of driver for a period of four years on account of his causing loss and bringing a bad name to the Department in the light of the order passed by the Motor Accidents Claims Tribunal, that too after holding enquiry under the Rules after giving him opportunity. The second order dated 17-9-1992 was passed on the basis of the conviction and sentence passed against him by the competent criminal court for the offence under Section 304-A IPC which was permissible under the Rules. These being the facts, there was no question of prosecuting and punishing the respondent for the same offence twice. The High Court was not right in equating departmental enquiries on different grounds to prosecution in a criminal case. The High Court also has failed to see that the two orders passed against the respondent were on different grounds and were on different cause of actions.

5. Under Rule 7(1) of the Rules, no order imposing a major penalty shall be passed against a person to whom the said Rules are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken. Under Rule 7(2) procedure to be followed and the requirements to be satisfied before imposing penalty in that regard are indicated. Sub-rule 2(b) of Rule 7 states that the provisions of the foregoing sub-rule shall not apply where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal case. In the present case, the first order was passed on 12.3.1990 reducing the pay to the minimum of time scale of Driver under Rule 7(1) of the Rules. The second order terminating his services was passed on 17.9.1992 under Rule 7(2)(b). When a major penalty is proposed to be imposed upon a person on the ground of conduct which led to his conviction on a criminal charge following the provisions contained in Rule 7(1) and (2) is not required. Rule 7 itself makes a distinction in regard to the punishment to be imposed depending on the grounds.” 

18. In the instant case, based on allegations of misconduct disciplinary action was taken against the appellant which culminated in the imposition of the punishment of reduction in basic pay by four stages as also recovery of the sum of Rs.50,637.18. The said order has attained finality. In respect of the very same acts of misconduct the appellant was prosecuted and punished by the Special Judge (CBI/SPE), Ernakulam in C.C.No.3 of 2000 and he was sentenced to undergo imprisonment. Ext.P2 order is one passed in a disciplinary action after following the procedure prescribed in the Regulations. Ext.P4, the impugned show cause notice and Ext.P6, the order passed pursuant thereto, are based on the judgment of conviction and sentence passed against the appellant by the competent criminal court for the offences punishable under the Indian Penal Code/Prevention of Corruption Act, 1988. The two proceedings operate in different fields, though the crime or the misconduct arose out of the same act. It cannot therefore be said that the appellant was prosecuted and punished for the same offence twice. The principle of double jeopardy recognised in Article 20(2) of the Constitution cannot therefore have any application. The learned single Judge was therefore in our opinion in error in holding that the principle of double jeopardy would apply to the case on hand. The learned single Judge has, in coming to the said conclusion, placed reliance on the decision of the Madras High Court in D.Narayanan v. District Revenue Officer, Virudhunagar, Virudhunagar District and Others (2009 (4) MLJ 708). The facts in that case are as follows: Disciplinary action was initiated against D.Narayanan, a Village Administrative Officer in the service of the Tamil Nadu Government as per memo of charges dated 7.10.1994. Such action was taken under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The allegation levelled against him was that he had misappropriated the sum of Rs.2,500/- collected as revenue and also absented from duty. After his explanation was submitted and an enquiry was held, the disciplinary authority imposed on him the punishment of stoppage of one increment for two years with cumulative effect.

19. Simultaneously, on the same set of allegations he was also prosecuted for the offence punishable under Section 409 IPC. Before the criminal court namely the Court of the Judicial Magistrate of Aruppukkottai, D.Narayanan filed a memo admitting his guilt. Based on the said memo he was found guilty of the offence punishable under Section 409 IPC and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.3,000/- failing which he was to undergo rigorous imprisonment for one month. D.Narayanan paid the amount of fine. Later, the Revenue Divisional Officer, Aruppukkottai issued a show cause notice dated 5.12.1998 under Rule 17(c)(i)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, calling upon D.Narayanan to show cause why action should not be taken against him in terms of the said Rules. After considering his reply, the Revenue Divisional Officer dismissed D.Narayanan from service. He preferred an appeal before the District Revenue Officer. He thereafter filed O.A.No.1077 of 2002 before the Tamil Nadu Administrative Tribunal. Overruling his contentions, the Tribunal dismissed O.A.No.1077 of 2002 by order passed on 28.1.2004. The Tribunal held that the principle of double jeopardy has no application. He thereupon moved the High Court of Madras by filing W.P.(C)No.28847 of 2004. He contended that the imposition of the punishment of dismissal for the same misconduct of temporary misappropriation after he was once punished, amounts to double jeopardy. Allowing the writ petition a Division Bench of the Madras High Court held that it is no where contemplated that on the basis of the self same misconduct a person is required to be punished twice, once because he has been found guilty in a departmental enquiry and subsequently because he has been convicted in a criminal case on the basis of a self same conduct. In that view of the matter notwithstanding the provisions contained in Rule 17(c)(i)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules which contemplated the dismissal or removal of an employee on the ground of conduct which has led to his conviction in a criminal case, the Division Bench allowed the writ petition and set aside the order of dismissal. In the light of the binding decisions of the Apex Court in Maqbool Hussain v. State of Bombay (supra), S.A.Venkataraman v. Union of India and Another (supra), Union of India and others v. Sunil Kumar Sarkar (supra), Union of India v. P.D.Yadav (supra) and State of Haryana v. Balwant Singh (supra), we are unable to agree with the reasoning in the decision of the Madras High Court in D.Narayanan v. District Revenue Officer, Virudhunagar, Virudhunagar District and Others (supra).

20. The Division Bench of the Madras High Court has in D.Narayanan v. District Revenue Officer (supra) referred to and relied on the decision of the Andhra Pradesh High Court in K.Srinivasa Rao v. The Director of Agriculture (1971 Lab.I.C.778) and the decision of the Rajasthan High Court in Kamruddin Pathan v. R.S.R.T.C. (1988 (2) SLR200). The very same decisions were pressed into service before the Division Bench of this court in Gireesan v. Indian Overseas Bank (supra). The Division Bench was however not persuaded to agree with the reasoning of the Rajasthan and Andhra Pradesh High Courts. It was held that in the light of the decisions of the Apex Court in Maqbool's case (supra) and S.A.Venkataraman's case (supra) the view taken by the Andhra Pradesh and Rajasthan High Courts cannot be accepted. We are in respectful agreement with the opinion of the Division Bench in Gireesan v. Indian Overseas Bank (supra).

21. Learned senior counsel for the appellant however relies on the decisions of the Apex Court in Union of India v. K.D.Pandey and another {(2002) 10 SCC 471}, Lt.Governor, Delhi and others v. HC Narinder Singh {(2004) 13 SCC 342} and Kanailal Bera v. Union of India and others {(2007) 11 SCC 517} to contend that for the same act of misconduct the appellant cannot be prosecuted twice. A reading of the judgment in K.D.Pandey's case (supra) discloses that it was a case where in respect of the very same set of charges a second disciplinary enquiry was held. It was in that context that the Apex Court held that if this process is allowed, enquiries can go on perpetually until the view of the enquiring authority is in accord with that of the disciplinary authority and it would be an abuse of the process of law. In Lt.Governor, Delhi v. HC Narinder Singh {(2004) 3 SCC 342} also it was a case of imposition of a second penalty for the same misconduct. There also, no criminal prosecution was invoked. In Kanailal Bera (supra) also, the same was the situation. It was held that the disciplinary authority cannot completely set aside the previous enquiries on the ground that the report of the inquiring officer does not appeal to it and proceed to hold a fresh enquiry. The Apex Court has in Nand Kumar Verma v. State of Jharkhand and others {(2012) 3 SCC 580} held that on general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide, that there is no justification for conducting a second enquiry on the very charges which have been dropped earlier and even though the principle of double jeopardy is not applicable, the law permits only disciplinary proceedings and not harassment.

22. The situation in the case on hand is not similar. Disciplinary action was initiated against the appellant and it resulted in the imposition of a punishment. He was also being simultaneously prosecuted by the Central Bureau of Investigation. That prosecution ended in a judgment of conviction and sentence. It was pursuant thereto that Ext.P4 show cause notice was issued in exercise of the power conferred on the LIC under Regulation 39(4). Regulation 39 in its entirety reads as follows: 

“39 (1) Without prejudice to the provisions of other regulations, any one or more of the following penalties for good and sufficient reasons, and as hereinafter provided, be imposed by the disciplinary authority specified in Schedule I on an employee who commits a breach of regulations of the Corporation, or who displays a negligence, inefficiency or indolence or who knowingly does anything detriment to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct – 

(a) censure; 

(b) withholding of one or more retirements either permanently or for a specified period; 

(c) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders; 

(d) reduction to a lower service, or post, or to a lower time-scale, or to a lower stage in a time-scale; 

(e) compulsory retirement; 

(d) removal from service which shall not be a disqualification for future employment; 

(f) dismissal.

(2) No order imposing on an employee any of the penalties specified in clauses (b) to (g) of sub-regulation (1) supra, shall be passed by the disciplinary authority specified in Schedule I without the charge or charges being communicated to him in writing and without his having been given a reasonable opportunity of defending himself against such charge or charges and of showing cause against the action proposed to be taken against him.

(3) The disciplinary authority empowered to impose any of the penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such of the charges as are not admitted or if it considers it necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose.

(4) Notwithstanding anything contained in subregulations (1) and (2) above-- where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge; or where the authority concerned is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in this regulation; or where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.

23. Regulation 39(1) empowers the LIC to impose on an employee who commits a breach of the regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct, any of the penalties enumerated therein. In Regulation 39(2) it is stipulated that no order imposing on an employee any of the penalties specified in clauses (b) to (g) of sub-regulation (1), shall be passed by the disciplinary authority specified in Schedule I without the charge or charges being communicated to him in writing and without his having been given a reasonable opportunity of defending himself against such charge or charges and of showing cause against the action proposed to be taken against him. Regulation 39(3) stipulates that the disciplinary authority empowered to impose any of the penalties specified in clauses (b) to (g) may itself enquire into such of the charges as are not admitted or if it considers it necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose. Regulation 39(4) stipulates that notwithstanding anything contained in Regulations 39(1) and 39(2), where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge or where the authority concerned is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in this regulation or where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. It is in exercise of this power that Ext.P4 show cause notice was issued pursuant to the judgment of conviction and sentence passed by the criminal court. Regulation 39(4) in our opinion, empowers the disciplinary authority to pass appropriate orders regarding the continuance in service of an employee on whom a penalty has already been imposed under Regulation 39(1), on grounds of conduct which later leads to his conviction by a criminal court. The disciplinary authority has thus reserved with it the power to proceed further against an employee on whom any of the penalties specified in Regulation 39(1) have been imposed, if later, he is convicted on a criminal charge.

24. As observed by the Apex Court in S.A.Venkataraman (supra), an order imposing punishment including an order of dismissal in terms of the stipulations contained in Regulation 39 cannot be regarded as a punishment for an offence under the Indian Penal Code or under the Prevention of Corruption Act, 1988. In cases where the misconduct might amount to a criminal offence as well and the employee concerned is prosecuted and is later convicted, Regulation 39(4) empowers the disciplinary authority to pass appropriate orders as it deems fit, as regards the employee concerned. In other words, notwithstanding the fact that in a disciplinary action which preceded the judgment of conviction and sentence a punishment other than a punishment of compulsory retirement or removal or dismissal has been imposed on an employee, the employer would still have the power or authority to pass appropriate further orders in cases where on the grounds of conduct which led to the imposition of penalty, he or she is also convicted on a criminal charge. The learned single Judge was therefore in our opinion perfectly justified in declining to interfere with Ext.P4 show cause notice and Ext.P6 order removing the appellant from service. His remedy in our opinion lies elsewhere.

We accordingly hold that there is no merit in the instant writ appeal. It fails and is dismissed.