- (1.) D. K. Seth, J. By an order dated 23rd September, 1983, the petitioner was removed from service which is Annexure- 14 to the writ petition pursuant to the find ing of guilt in an enquiry held against the petitioner. The petitioner's appeal dated 30th September, 1983 (Annexure-15) was dismissed by an order dated 4th of May, 1984 (Annexure-16 ). These two orders have been challenged by means of this writ peti tion.
(2.) MR. Tapan Ghosh, learned counsel for the petitioner contends that by reasons of Section 18 of the Central Industrial Security Force Act, 1968, sub-section (2a), once a criminal proceeding has been in itiated in an ordinary court of criminal juris diction, no further domestic enquiry can be held in respect of the same charges. He further contends that the finding is based on no material and the procedure adopted is perverse and void. Inasmuch as according to him once a criminal proceeding is initiated, there is no procedure laid down in Rule 34 so as to proceed simultaneously with kinds of proceedings or one after the other. Mr. Ashok Mohilay, learned coun sel for the respondent on the other hand contends that there is no bar in proceeding with the domestic enquiry irrespective of the finding to the effect of acquittal or sub mission of final report in the criminal proceedings. According to him Section 18, sub-section (2a) is not a bar to proceed with the domestic enquiry as contemplated in Rule 34 of the Central Industrial Security Force Rules, 1969. Mr. Mohilay contends further that there are certain evidence to which he had refer to on the basis whereof the finding has been arrived at. Referring to the decision in the cases of J. D. Jain v. Management, State Bank of India, AIR 1982 SC 673 and State of Tamil Nadu and another v. S. R. Subramanian, JT 1996 (2) SC 114, he contends that this Court while deciding the question relating to finding arrive at a domestic proceedings does not sit on appeal on the finding. After having heard learned counsel for the parties, it appears that Section 18 provides for trial of offence by the Comman dant who is vested with the powers of a Magistrate of any class in certain condi tions. When the Commandant records reasons in writing that it is not practical for him to enquire in the offence as a Magistrate, the same may be decided by the ordinary criminal court having jurisdiction in the matter and the territory. The said provision has been engrafted in sub-section (2a) of Section 18 with the provisions for prosecution under any other law as con tended in sub-section (3 ).
(3.) IN order to appreciate this situation, it is necessary to refer to the said provisions as quoted below: "18. Penalties for neglect of duty etc.- (1) Without prejudice to the provisions contained in Section 8, every member of the Force who shall be guilty of any violation of duty or wilful breach of neglect or any rule or regulation or lawful order made by a supervisory officer, in or who shall withdraw from the duties of his office without permission or who absent or leave, fails without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who shall be guilty or cowardice, may be taken into Force cus tody and shall, on conviction be punished with imprisonment for a term which may extend to one year. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) an offence punishable under this section shall be cognizable and non-bailable. (2-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974 the Central Government may invest the Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by enrolled member of the Force against the persons or property of another member of the Force : Provided that: (i) when the offender is on leave or absent from duty; or (ii) when the offence is not connected with the offender's duties as an enrolled member of the Force; or (iii) when it is a petty offence even if con nected with the offenders duties as an enrolled member of the Force; or (iv) when for reasons to be recorded in writ ing, it is not practicable for the Commandant invested with the powers of a Magistrate to in quire into or try offence, the offence may, if the prescribed authority with in the limits of whose jurisdiction the offence has been committed so required be inquired into or tried by an ordinary criminal court having jurisdiction in the matter. (3) Nothing contained in this case section shall be construed to prevent any member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other higher penalty or punishment than is provided for such offence by this Section : Provided that no person shall be punished twice for the same offence. " The plain reading of the said provisions reveals that in case of certain offences, the Commandant who is vested with the power of Magistrate may try the same and in case of his inability as men tioned there in the same can be tried by an ordinary criminal court. But the said pro visions does not prevent prosecution of a member of the force under any other law for any offences made punishable by that law or for being liable under any such law to any other or higher, penalty or punishment than is provided for such offences by this Section.;