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GAUHATI HIGH COURT
T.Nanda Kumar Singh, J.
Ganesh Thakur (GS-178495Y UDC) -Appellant
Versus
Director General, Border Roads Organization & Ors. -Resopndent
Writ Petition (C) No. 23 of 2009
Decided On : 08-09-2010
CCS (CCA) Rules, 1965 - Rule 10 - Army Act, 1950 - Sub-section (1) and (4) of Section 4 - Constitution of India, 1950 - Article 20(2) - Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 10 - Retired from Government service - Consideration – First Information Report - Sans unnecessary details short fact sufficient for deciding present question is briefly noted petitioner was initially appointed as LDC and thereafter he was confirmed in post of LDC in service of GREF - While petitioner was serving as UDC respondents issued an order being for purpose of investigating into circumstances under which certain irregularities were found in ACRs & PA/Impress Account in respect - For those irregularities respondents initiated Court of inquiry vide order issued by Sr. Administrative Officer Jt. Dir for Director General Border Roads - Under said order composition of Court of inquiry for said irregularities against present writ petitioner - It is admitted case of both parties that under SRO Sept - Therefore it is admitted case of both parties that save and except sections mentioned in schedule a said SRO Army Act a Rules apply to General Reserved engineering Force and also that BRTF is a part of GREF and also that petitioner is a member of BRTF/GREF - It is also admitted by both parties that CCS (CCA) Rules, 1965 is also applicable to member of GREF/BRTF – Held, Before concluding court must point out that during course of arguments a doubt was raised as to maintainability of concurrent proceedings initiated against respondent by authorities - Respondent in this case has been punished for same misconduct both under Army Act as also under Central Rules. 1965 - Hence a question arises whether this would tantamount to double Jeopardy and is in violation of Article 20 of Constitution of India - Having considered arguments addressed in this behalf court are of opinion that so far as concurrent proceedings initiated by Organization against respondent both under Army Act and Central Rules are concerned they are unexceptionable - These two proceedings operate in two different fields though crime or misconduct might arise out of same act - Court-Martial proceedings deal with penal aspect of misconduct while proceedings under Central Rules deal with disciplinary aspect of misconduct - Two proceedings do not overlap - As a matter of fact Notification issued under Central Rules and under subsections (1) and (4) of Section 4 of Army Act makes this position clear - By this notification punishments that could be meted out under Central Rules have been taken out of purview of Court-Martial proceedings under Army Act - Court further find support for this view of ours in judgment of this Court in Vs. Union of India – Petition dismissed
In the given case the question falls for consideration is:- Is simultaneous proceedings one under the CCS (CCA) Rules, 1965 and another under the Army Act 1950 and Rules, 1954 against the present petitioner for the same incident/for the same act double jeopardy as provided under Article 20(2) of the Constitution of India. This Court also is of the considered view that the present question is already answered by the decisions of the Apex Court in (1) R. Viswan & Ors. Vs. Union of India & Ors.: (1983) 3 SCC 401 (Constitution Bench) and (2) Union of India & Ors. Vs. Sunil Kumar Sarkar: AIR 2001 SC1092 in the light of the facts and reasons discussed in the following paras.
2. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioner and Mr. S. N. Meitei, learned counsel appearing for the respondents.
3. Sans unnecessary details, the short fact sufficient for deciding the present question is briefly noted:- the petitioner was initially appointed as LDC on 29.8.1996 and thereafter he was confirmed in the post of LDC w.e.f. 1.9.2000 in the service of GREF. While the petitioner was serving as UDC, the respondents issued an order being No. 60314/510 SS & TC/36 BRTF (P) Pushpak for the purpose of investigating into the circumstances under which certain irregularities were found in the ACRs & PA/Impress Account in respect of 510 SS & TC/36 BRTF (P) Pushpak. For those irregularities, the respondents initiated Court of inquiry vide order No. 60314/510 SS & TC/DGBR/07 Nig dated 20.6.2008 issued by the Sr. Administrative Officer, Jt. Dir (Vig) for Director General Border Roads. Under the said order the composition of the Court of inquiry for the said irregularities against the present writ petitioner are:-
Presiding Officer - One Col members
1) - One Lt. Col/Major
2) - One Major/Capt.
4. It is admitted case of both the parties that under the SRO No. 329, dated 23rd Sept. 1960, which was issued in exercise of the powers conferred by sub-section (1) and (4) of Section 4 of the Army Act, 1950 (46 of 1950) by the Central Government, the Army Act, 1950 except those mentioned in Schedule A subject to the modifications set forth in Schedule B, applies to General Re-IP served Engineering Force. Therefore, it is the admitted case of both the parties that save and except the sections mentioned in schedule a to the said SRO 329, the Army Act a Rules apply to the General Reserved engineering Force and also that BRTF is a part of the GREF and also that the petitioner is a member of the BRTF/GREF. It is also admitted by both the parties that CCS (CCA) Rules, 1965 is also applicable to the member of the GREF/BRTF.
5. Basing on the report of the Court of enquiry, composition of which are mentioned in the said order dated 20.6.08, the Director General, Border Road passed an order being No. 60314/510 SS & TC/DGBR/06/Vig dated 18th Dec. 2008 for drawing up disciplinary proceeding under Rule the misappropriation of Impress/Government money to the tune of Rs. 5,51,100/- (Rupees five lakh fifty, one thousand one hundred only) and call upon the writ petitioner to pay Rs. 5,51,100/- (Rupees five lakh fifty one thousand one hundred only) to make good the loss caused to various personnel against whose IRLAs he could manage the said misappropriation of money. In the event of his being unwilling to pay the amount, he should forward his reasons, for which further action be taken under Section 91(g) of Army Act, 1950. For easy reference the said order of the Director General, Border Road is quoted hereunder:
"Orders of Director General Border Roads on the Court of Enquiry Proceedings held to investigate the circumstances under which irregularities found in the paid acquittance rolls/impress account of personnel of 510 SS & TC/36 BRTF(P) Pushpak.
1. I partially agree with the findings/opinion of the Court and recommendations of the Chief Engineer (Project) Pushpak.
2. GS-178495Y UDC Ganesh Thakur, while functioning as E5 Section I
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