HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 1172 of 2001. Reserved on: 4.8.2008. Decided on: 7.8.2008. Bishan Dass Sharma ……… Petitioner. Versus Union of India and others. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Jeevesh Sharma, Advocate. For the respondents: Mr.Ravinder Thakur, Central Government Counsel. Per V.K. Ahuja, J.: This is a civil writ petition under Articles 226 and 227 of the Constitution of India filed by the petitioner challenging the order passed by the learned Central Administrative Tribunal (hereinafter referred to as the CAT), dated 28.3.2001, dismissing the application filed by the petitioner under Section 19 of the Administrative Tribunals Act, 1985. Briefly stated the facts of the case are that the petitioner was posted as Assistant Post Master and during the year 1994, he was asked to give his explanation in regard to the reconciliation of Rs.15,000/- since he had deleted the entries on 14.7.1990 during his posting. The explanation of the petitioner was considered and was only warned by order, dated 15.10.1994. Thereafter, __________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. a fresh memo was issued to the petitioner, dated 21.8.1997, vide which he was asked as to why action be not taken against him under Rule 16 of the CCS (CCA) Rules, 1965. The petitioner replied to the said notice and after considering the material on record, an order was passed by his employer on 18.1.1999 that since he had caused a loss to the Department to the tune of Rs.15,000/-, a sum of Rs.5,000/- be recovered from the pay of the official in 36 instalments. On appeal, the said order was affirmed by the Appellate Authority vide its order, dated 5.7.1999. The petitioner challenged the said order before the learned CAT by filing the application under Section 19 of the Administrative Tribunals Act, which was dismissed. Being aggrieved, the petitioner has filed the present writ petition. We have heard the learned counsel for the parties and have gone through the record of the case. The first point raised by the learned counsel for the petitioner was that the earlier order of warning passed in 1994 amounted to a minor penalty within the provisions of the Rules and once the said penalty was imposed upon the petitioner, the matter could not have been reconsidered by the same officer after three years in 1997 and as such the order passed imposing penalty of recovery of the amount upon the petitioner, upheld by the Appellate Authority, was liable to be set aside. To substantiate his plea, it was also urged by the learned counsel for the petitioner that initiation of the proceedings second time amounts to double jeopardy and once the petitioner has already been penalized, no fresh action could have been taken again and as such the impugned order passed by the learned CAT is liable to be set aside. Before we refer to the relevant rules and case law, we would like to reproduce the orders passed by the various authorities, which deserve to be considered. A perusal of letter, dated 17.9.1994, (Annexure P-4) shows that the following notice was issued to the petitioner by the Senior Post Master: “You were posted as Assistant Post Master Sub Accounts with effect from 4.6.90 to 5.6.90, 2.7.90 to 31.7.1990 and upto 27.9.90. You failed to reconcile the amount of Rs.15,000/- during the above period between the Mandal and Jubbal Sub-offices. Besides this, you deleted the entries of Rs.15,000/- on 14.7.90 against the Sub Office Jubbal. Therefore, you are directed to explain your position to the undersigned upto 24.9.94.” The Department had considered the reply filed by the petitioner and the following order was passed on 15.10.1994 (Annexure P-6), which reads as under: “The employee was asked to give his explanation in this regard which has been tendered by the employee on 29.9.1994. The undersigned has gone through the said explanation. The employee has informed/written that he has not deleted the entries of this amount and there was no difference in the transit account. This explanation of the employee is not satisfactory, but the same is accepted because the employee is not directly defaulter for the mis- utilization of the said amount. Therefore, he is hereby warned severely and the same is hereby entered in his Memorandum of services.” A notice was issued to the petitioner on 21.8.1997 that it was proposed to take action against him under Rule 16 of the CCS (CCA) Rules, 1965 and the statement of misconduct and misbehaviour was also enclosed therewith in which it was alleged that there was gross misconduct on the part of the petitioner and the Department was put to a loss of Rs.15,000/- and, therefore, the employee had acted in a manner of unbecoming of a Government servant in violation of provisions of Rules 3.1(ii) and 3.1 (iii) of CCS (Conduct) Rules, 1964. After taking reply of the petitioner and considering the documents, an order was passed on 18.1.1999 whereby a penalty of recovery of unrecovered amount of Rs.5,000/- in 36 instalments was passed. An appeal was preferred by the petitioner and the matter was remanded to the Disciplinary Authority to re- examine the matter who then passed the impugned order, dated 18.1.1999. The penalty of recovery of Rs.5000/- in 36 instalments was imposed upon the petitioner. A plea was taken by the petitioner in regard to the previous punishment imposed upon him and the Disciplinary Authority also observed in regard to that plea. The relevant portion of the order passed by the Disciplinary Authority reads as under: “The official has pleaded in his representation dated 22.9.97 that since the official had been already awarded a punishment of severe warning by Sr. Postmaster Shimla vide orders dated 15.10.94 and as such the SSPO’s Shimla is not competent to initiate disciplinary action against the official under CCS(CCA) Rule 1965. In this connection it is clarified that severe warning issued by Sr. Postmaster is not a statutory punishment as defined in CCS (CCA) Rules 1965. Further it is also pointed out that the undersigned is very much competent to initiate disciplinary action against the official under CCS (CCA) Rules 1965. Since the lapse on the part of official is of a very serious nature which resulted in loss to the department; severe warning is not commensurate in this case and further disciplinary action is considered to be necessary and justified to make good the loss sustained by the department due to wrongful act of the official.” The Disciplinary Authority also observed that the official deserves stern action against him on the basis of gravity of lapse on his part. By taking lenient view, the petitioner is only being directed to pay Rs.5,000/-, which be recovered from his pay in 36 instalments. An appeal was preferred by the petitioner and the said order passed by the Disciplinary Authority was upheld vide the order, dated 5.7.1999. During the course of arguments before the learned CAT, a plea was taken that the petitioner was served with a memorandum after 2-3 years and once a warning had been issued to him, no fresh action could be taken, which amounts to double jeopardy. It was also observed by the learned CAT that the petitioner has pleaded that the respondents had no right or power to start a fresh inquiry under Rule 16 of the 1965 Rules on the same set of allegations. In regard to the first plea that since the petitioner had already been warned and no fresh proceedings could have been started against him, the learned CAT had observed as under: “After receiving explanation of the applicant, a warning was issued which is not one of the recognized statutory punishments. No rule or law has been shown to us which prevents the competent authority to take action on some act of misconduct which may be fit for such action either under Rule 16 or Rule 15 of the CCS (CCA) Rules. If the competent authority found that the act deserves some higher punishment which in this case in our opinion, the applicant did deserve, no legal fault can be found in initiation of departmental proceedings.” In regard to the plea taken before the learned CAT, which has not been taken before us, that the petitioner was not given an opportunity or no regular departmental inquiry was held, the learned CAT had observed that it is the discretion of the competent authority to hold regular departmental inquiry or to consider the explanation of the official charged with misconduct and pass order of minor penalty straightway and since that point was not urged before us, we are not looking into this question. Coming to the first part of the question as to whether the issuance of warning amounts to a minor penalty or not under the relevant rules, we would like to refer to Rule 11 of the CCS (CCA) Rules, 1965, which reads as under: “The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:- Minor Penalties – (i) censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iii)(a) reduction to a lower stage in the time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension. (iv) withholding of increments of pay;” The question to be considered is as the warning amounts to a minor penalty under the term “censure” or not. In the Swamy’s Compilation of CCS (CCA) Rules, it has been laid down as under: “2. The existing instructions provide that in a case where departmental proceedings have been held under the relevant rules, “warning” should not be issued as a result of such proceedings. If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of “censure” at least should be imposed. 3. A question has been raised whether MHA, OM, dated the 16th February, 1979, empowers the disciplinary authorities to issue warnings as a result of regular departmental proceedings conducted under the relevant disciplinary rules. This is because the last sentence of Para. 1 (ii) (see extract above) has been mistaken as permitting the issue of oral or written warnings even as a result of disciplinary proceedings. 4. It is clarified that this is not the intention of the OM, dated the 16th February, 1979, under reference. This is made clear in Para.1 (ii) of the aforesaid OM of 16th February, 1979, in which it is stated that a warning should not be issued as a result of regular disciplinary proceedings. There is, however, no bar to issuing a warning orally or in writing as a result of administrative action in the case of an officer against whom no formal proceedings are taken in which such warnings should be under the disciplinary rules applicable to him.” The learned counsel for the petitioner had relied upon two decisions to show that this warning amounted to censure. The decision in Nadhan Singh vs. The Union of India and others, 1969 SLR 24, was relied upon in which the learned Single Judge of Delhi High Court had considered the provisions of Rules13, 16 and 23 and considered the terms ‘warning’ and ‘censure’. After referring to the relevant rules, the learned Single Judge had concluded as under: “5. In such cases, I am of the opinion that it is not the form of the order or the word that is used or the nomenclature that is given that matters but really the substance of it. The Memorandum dated 14.8.1963 finds the petitioner guilty of misconduct and yet to contend that it merely administered a warning, dissociated from and unconnected with, the disciplinary proceedings, initiated on 16-4-1963, is, to say the least, unconvincing. There are several circumstances which will indicate that the ‘warning’ that was administered to the petitioner by the Memorandum dated 14.8.1968 was only a censure imposed upon the petitioner: one circumstance is that the Memorandum itself does not say that the disciplinary action initiated against the petitioner under R.16 of the Rules by the notice dated 16-4-1963 was dropped or closed. The second is that in express terms the Memorandum states that the petitioner was found guilty of misconduct. The Third circumstance is that the Memorandum itself states that a copy of that communication has been placed in the character roll of the petitioner. The fourth feature is that the Chairman, Central Water and Power Commission, who issued this Memorandum had described himself as the disciplinary authority also while issuing the said Memorandum indicating thereby that that Memorandum was issued by him only in his capacity as the disciplinary authority. I am also doubtful whether an informal warning can ever go with the finding of misconduct against a Government servant. Admittedly, this ‘warning’ was intended to be taken into consideration for assessing the official career of the petitioner and is likely to effect the same adversely, since the Memorandum itself states that a copy of that communication has been placed in the character roll of the petitioner. Under these circumstances, in my opinion, notwithstanding the word ‘warning’ used in the said Memorandum, that Memorandum really imposed the penalty of censure on the petitioner based on the finding that he was guilty of misconduct. If that be the case clearly an appeal lies to the appellate authority and it is for the appellate authority to consider the appeal on merits. ……………………………….” The reliance was also placed upon the decision in Nirmal Kumar Datta vs. Union of India and ors., 1975 (2) SLR (Calcutta), 103, and after referring to the relevant rules, it was concluded by their Lordships as under: “14. Now, we may consider whether the order dated July 3, 1964 whereby a warning was given to the appellant is within the category of “Censure” which is a minor penalty. It has been held by the learned Judge that a mere warning is not a penalty so as to bring it within the meaning of “Censure”. We are unable to accept this view. When a Government servant has been asked to show cause against a charge and after he submits his explanation a warning is meted out to him, we fail to understand why the warning will not amount to “Censure”. The warning implies within it a blame for the appellant for the failure of the engine. In our view, this is nothing but “Censure” and is, therefore, a penalty. The respondent has also treated the warning as a penalty, for in the service book of the appellant it has been recorded under the penalty column. This penalty has also been imposed on the appellant in violation of the statutory rules and, as such, it is illegal.” It follows from the above discussion that in case a simple warning has been issued to an employee and it does not form part of the personal file of the employee, it cannot be termed as ‘censure’ since it does not affect the further promotion of an employee. However, if the warning has been issued without holding the departmental inquiry but it is ordered that it shall be reflected in the personal file of an employee, it can be presumed that it amounts to censure since it is likely to be considered at the time of further promotion of an employee. Coming to the next question as to whether taking of a further action against the petitioner amounts to double jeopardy or once an action has been taken against an employee, whether a fresh action can be taken by the same disciplinary or by the appellate authority and if so, under what circumstances a fresh action can be taken. To substantiate this point, the learned counsel for the petitioner had relied upon the following decisions. The decision in Bhim Singh vs. The State of Haryana, 1990(2) SLJ 874, shows that a learned Single Judge of the Punjab and Haryana High Court had held that the employee was given punishment of warning for remaining absent from duty. After 7 years, the same period was ordered to be treated as break in service and that too without giving opportunity of hearing. The order was held to be void. It was observed that for the same lapse, an employee cannot be punished twice. The decision in P. Andrews vs. District Educational Officer, Bangalore and another, 1968 Lab. I.C. 756, shows that it was observed as under: “(10) If after the production of this explanation, the disciplinary proceeding was not continued, what should reasonably follow is that the disciplinary authority was satisfied with the explanation and dropped the charges. The strength of that inference receives reinforcement from the fact that it was only after a period of 3-1/2 years that the charges were once again revived. The great and inordinate delay in the revival of those charges and the antecedent discontinuance of the earlier disciplinary proceeding over a long tract of time, can have no other meaning than that the disciplinary authority was satisfied with the explanation offered by the petitioner on October 24, 1961 and that in consequence the proceedings against him were discontinued and abandoned. If that was how the earlier disciplinary proceeding terminated, it was not within the competence of the disciplinary authority to exhume those charges and to make them the subject matter of another disciplinary proceeding, as late as in the year 1964. (11) We do not say that it is not permissible for a disciplinary authority to discontinue a disciplinary proceeding and start another in respect of the same matter, if there be a defect or other analogous reason for the discontinuance of one proceeding and for the commencement of another. But that was not what happened in the case before us. The circumstances in which the first disciplinary proceeding was discontinued support no other inference than that the discontinuance was the outcome of the acceptance of the explanation offered by the petitioner.” The decision in R.N. Atri vs. Union of India and another, 1979 (1) SLR, 527, shows that in considering the term double jeopardy, it was observed by a learned Single Judge of Delhi High Court that person prosecuted for the same offence cannot be prosecuted for it again irrespective of whether he was acquitted or convicted in earlier inquiry. The decision in Rajendra Prasad Gupta and others vs. State of U.P. and others, 2000(3) SLR, 655, shows that earlier show cause notice was dropped on merits and petitioner exonerated from charges. Rules not providing of review of such order. A fresh show cause notice was issued after three years based upon same material. It was also observed that the Police Rules not providing for review of order of exoneration from charges for minor punishment. It was held that the respondent was not entitled to initiate de novo inquiry and fresh show cause notice was held to be illegal and was quashed exercising powers under Articles 226 of the Constitution of India. The observations made in para 5 are also relevant and are being reproduced below: “It can be; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chargrined Government cannot re-start 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 legal provision or other vitiating factor invalidating the earlier enquiry……..” In the light of the above case law, it has to be considered in the facts and circumstances of the case as to whether the subsequent action taken by the disciplinary authority of imposing penalty of Rs.5,000/- recoverable from the petitioner can be said to be legal order or not. In so far as the powers of the appellate authority are concerned, in our view, the appellate authority can review the order passed by the disciplinary authority in the first inquiry or explanation called of the employee in which a minor penalty of warning only was imposed upon the petitioner. The appellate authority on same material could have ordered that since no adequate punishment was provided to the employee or the department had suffered a financial loss, therefore, fresh action be taken against the employee, but this is not so in the present case since there is nothing on record to show that any fresh action was directed to be taken by the appellate authority. The facts of the case rather show that the disciplinary authority i.e. the same officer by designation (Senior Post Master) initiated fresh action against the petitioner for recovering the amount. He was alive of the question since he observed that the issuance of the warning does not amount to a penalty and he is not precluded from taking action against the petitioner since the department had suffered a loss and, therefore, he took action almost after 2 years and 10 months against the employee when he issued a show cause notice to him. Plea raised by the learned counsel for the petitioner was that once the matter had been closed, it could not have been opened by the new officer holding the same post and there will be no end to it and, therefore, the action taken was not justified imposing penalty upon the petitioner. In our view, the department had imposed a minor penalty upon the petitioner but since it was mentioned that this be also placed on the personal file of the employee, this has been considered by us technically to be amounting to censure within the meaning of minor penalty, as mentioned above. However, the Senior Post Master, while imposing penalty vide order dated 18.1.1999 had observed that severe warning issued by the Senior Post Master is not a statutory punishment as defined in CCS (CCA) Rules, 1965 and, therefore, he held that such lapse was of a serious nature, which resulted in loss to the department. Severe warning is not commensurate in this case and the employee can be asked to make good the loss sustained by the department due to the wrongful act of the official. Though there was a loss of Rs.15,000/- to the department, but only Rs.5,000/- were directed to be realized from the employee. The appellate authority, vide its order, dated 5.7.1999, had observed as under: “Therefore, this authority was very much competent to initiate disciplinary action against appellant under CCS(CCA) Rules 1965. The issuance of severe warning by lower authority will not make the appellant immune from departmental action for all times to come. Further copy of this warning was not endorsed to the Memo. of service by Sr. Postmaster Shimla nor this was recorded in the CR sheet of the appellant for the year 1994-95. Thus, this warning has not affected the appellant in any way. The appellant cannot claim a protection under this considering the gravity of misconduct on his part.” This clearly shows that inspite of the order that this warning be kept in the personal file of the official, the same was not placed, which fact was considered by the appellate authority that since it has not affected the appellant in any way and it will not make the petitioner immune from departmental action for all times to come. Therefore, the order passed by the disciplinary was upheld. It has to be considered as to whether these two factors – one that it was simply a warning and was not considered by the disciplinary authority as minor penalty, therefore, fresh notice was issued to the petitioner; the second reason given by the disciplinary authority was that financial loss has been caused to the employer and the employer was not precluded from recovering the said amount from the employee. Therefore, vide impugned order,