Yashwant Varma, J. - (1.) Heard Sri Krishnaji Khare, learned counsel for the petitioner and Sri Shashi Kant Upadhyay, learned counsel appearing for the contesting respondents.
(2.) This writ petition has come to be placed for final disposal pursuant to an order of remand made by a Division Bench of the Court while disposing of Special Appeal Defective No. 71 of 2016. It appears that the writ petition initially came to be allowed by a learned Single Judge proceeding on the premise that a minor penalty had come to be imposed upon the petitioner and during the subsistence thereof enquiry proceedings were taken afresh and a major penalty inflicted upon him. The Division Bench while disposing of the special appeal noted the specific contention of the respondents that the initial order inflicting minor punishment of thirty days confinement had been reviewed by the Inspector General of Police IGP C/S, Central Reserve Police Force CRPF Lucknow by exercising powers conferred by Rule 29(d) of the Central Reserve Police Force Rules, 1955 1955 Rules. By his order dated 8 September 1998, the IGP had disagreed with the imposition of minor penalty and had observed that appropriate proceedings should be initiated against the petitioner and stern disciplinary action be taken. In this view of the matter, the Division Bench found that the premise on which the learned Single Judge had proceeded was factually incorrect and consequently set aside the judgment with the following operative directions: In our view, the matter can be looked into from two perspectives. Firstly, if as the respondent contends, he had already undergone the minor penalty which was imposed under Section 11 and the setting aside of the minor penalty would not obliterate the factual position, in that event, the major penalty would be in addition to what had already been undergone by the respondent. This is permissible under Section 11. The principle of 'double jeopardy' under Article 20 has no application, as the learned Single Judge seemed to indicate. There was no conviction of an offence. Alternatively, if the order dated 8 September 1998 setting aside the minor penalty is treated as an order by which the order of minor penalty is effaced and obliterated, in that case, under Section 11, the authorities had the jurisdiction to proceed by way of a major penalty in any event. We clarify that, at this stage, we leave open all the contentions which the respondent may have on the merits of his challenge to the order of major penalty since they have not been gone into by the learned Single Judge. We leave it open to be urged before the learned Single Judge. The only ground which weighed with the learned Single Judge was that the minor penalty had not been set aside, which is contrary to the record. In this view of the matter, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 8 September 2015. Writ A No. 42833 of 2000 is restored to the file of the learned Single Judge for disposal afresh.
(3.) It is in this light that the matter stood remitted back to the board of the Single Judge. Post remand, the petitioner has chosen to amend the writ petition and has added various paragraphs in the writ petition and has also amended the relief clause by raising a challenge to the orders dated 8 September 1998 and 9 September 1998 seeking a declaration that these orders be declared as null and void. The respondents were granted and have availed the opportunity of filing a counter affidavit to the said amendment application. Pleadings having since been completed, the writ petition was taken up for final disposal. The facts on which there is not much dispute and which stand duly noticed even in the judgment of the Division Bench are as follows. An incident is stated to have taken place in the B/8th Battalion on 4 August 1998 in which a few constables attempted to assault the Commanding Officer. The charge against the petitioner was that he raised a false alarm in the company lines to the effect that the Commanding Officer had assaulted his own men. He is further charged to have used provocative language and instigated the Company personnel. Taking the aforesaid conduct of the petitioner into consideration, the Commanding Officer on 6 August 1998 inflicted a minor penalty on the petitioner of thirty days' confinement to lines with forfeitures of all pay and allowances coupled with pack drill for two hours in the morning and two hours in the evening. This order appears to have been reviewed by the IGP, who set aside the same and remitted the matter back to the Disciplinary Authority for taking stern action. The order dated 8 September 1998 which admittedly was made in purported exercise of powers conferred by Rule 29(d) is in the following terms: U/C. (.) Incident dated 4/8(.) Offence committed by No. 871180872 CT/GD Brijesh Kumar of B/8 by instigating the Coy personnel and awarding him 30 days confinement to lines does not commensurate with the gravity of the offence (.) The said punishment has been quashed by Polcent (.) Take stern disciplinary action against him under CRPF Act & Rules (.) DIG RPR only (.) This also refers his telephonic conversance/// ;