IMPORTANT POINTS
1. Punishment of imprisonment in Court Martial under Army Act and punishment of removal from service in disciplinary proceedings under Central Civil Services Rules for same misconduct did not amount to double jeopardy.
2. The very foundation of imposing punishment under Rule 19 of the CCS Rules 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.
3. Suspension of delinquent officer immediately on his conviction and consequent taking into custody in Court Martial proceedings cannot be held to be against CCS Rules.

Headnote:(i) Army Act, 1950-Section 167-Court Martial-Conviction-Taking into custody immediately after pronouncement of sentence by GCM before confirmation of sentence by higher authorities-Not contrary to provisions of Army Act. (Para 7)
       (ii) Central Civil Services (Classification, Control and Appeal) Rules, 1965-Rule 10-Suspension-Respondent sentenced to imprisonment in Court Martial and taken into custody-Authorities issuing orders keeping him under suspension-Ultimate dismissal from service-High Court holding that disciplinary proceedings vitiated since respondent was kept under suspension without any reason-High Court fell in error-Concerned authority was well in statutory power under Rule 10(1)(a) to keep respondent under suspension.
       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 required under the Rule was not existing when the order of suspension was made. It seems that the Division Bench was of the opinion that once a person is in custody the question of keeping him under suspension does not arise. We do not agree with this opinion 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 reinstatement in service unless departmental proceedings were initiated against him for the misconduct for which he was convicted. Therefore, 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 undergoing a sentence of imprisonment. (Para 6)
       (iii) Central Civil Services (Classification Control and Appeal) Rules, 1965-Rule 19-Constitution of India-Article 311-Disciplinary action-Dismissal from service-Conviction in Court Martial proceedings-Dismissal thereafter in disciplinary action under Rule 19-Cannot be said to be result of pre-determined mind-All that disciplinary authority is expected to do under Rule 19 is to give show cause notice and consider reply to such show case notice.
       The Division Bench also found fault with the order of dismissal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respondent 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 Constitution 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 of the CCS Rules 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 authority had any pre-determined mind when it passed the order of dismissal. (Para 8)
       (iv) Constitution of India-Article 20-Double jeopardy-Conviction in Court Martial under Army Act and disciplinary action under Central Civil Service (Classification, Control and Appeal) Rules-Imprisonment in Court martial and dismissal from service in disciplinary proceedings-Two proceedings operate in two different fields though crime or misconduct arise out of same act-No double jeopardy. (Para 11)

JUDGMENT

Santosh Hegde, J.-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 Organisation ) 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 confirmation 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 R.I. 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 initiate 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 confirm ing 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

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2001 Supreme(SC) 406

Cases Referred (1)