- (1.) D. K. Seth, J. By an order dated 22-11-1995 the confidential report/entry for the year 1994-95 in respect of the petitioner's service was with held on the ground that he was found guilty of both the charges in the enquiry held against him. By another order dated 22-11-1995 the petitioner having been found guilty of both the charges in respect whereof he was subjected to a domestic enquiry he was dismissed from service. These two orders are Annexures-2 and 1 respectively to the wite petition and have since been chal lenged by means of this writ petition.
(2.) SHRI M. L. Rai, learned Counsel for the petitioner had assailed the said orders on the ground that the petitioner has suf fered double jeopardy. Inasmuch as by reason of finding of guilt in the domestic enquiry, the petitioner has been awarded punishment of with holding of entry in the service record with regard to integrity and there after second punishment of dismissal was awarded to him out of the self same charges. There cannot be two punish ments-one minor and another major, there by punishing twice for the same charge. He also alleges that the petitioner was not given proper opportunity in the domestic enquiry. Some of the documents which he had asked were not furnished to him. He also contends that even on merit, the finding is perverse. Inasmuch as even though the voucher was singed by the petitioner but in fact the petitioner was not guilty of the charges. On the other hand it was one SHRI Ashok Kumar Mishra who was the real guilty person in whose account the cheque was encashed and against whom the authority lodged a First Information Report and had suspended him but the said Ashok Kumar Mishra is still working whereas on the fault of said SHRI Ashok Kumar Mishra, the petitioner has been victimised. He also drawn my attention to the various record and had pointed out that the petitioner is not guilty of the charges. He had also relied on the decision in the case of Mohd. Aquil Siddiqui v. U. P. State Public Service Tribunal, (1) Jawahar Bhavan, Lucknow & Ors. , 1992 (2) UPLBEC 1149, in support of his con tention that even in this case if the petitioner was found guilty of the charges even then the punishment is dispropor tionate and the petitioner having retired in the meantime he would have been awarded similar punishment as has been awarded in similar circumstances in the case of Mohd. Aquil Siddiqui (supra ). Shri K. R. Singh, learned Standing Counsel contends that the petitioner was found guilty of both the charges and he had pointed out that there was sufficient reason supporting such conclusion and there is no infirmity or perversity in the finding. In the absence of perversity in the finding of fact this Court cannot interfere with the same. He further contends that the petitioner had no authority to issue the voucher yet he had issued such voucher. The said statement has been made in para graph 11 of the counter-affidavit. He fur ther contends that the petitioner cannot deny his responsibility as soon he has signed the paper. Even if First Informa tion Report has been lodged against any person the same can no way affect the proceeding against the petitioner which was altogether an independent proceed ing. He also contends that the petitioner has a right to approach U. P. State Ad ministrative Tribunal and therefore, there having been adequate alternative remedy, this writ petition is not maintainable. On these grounds he prays that the writ peti tion be dismissed. I have heard learned Counsel for the parties at length.
(3.) THE writ petition was filed some time in 1995. Counter and Rejoinder Af fidavits have been exchanged and the preliminary objection was raised at the time when the matter was taken up today. Only in reply to the argument made by Mr. Rai, Mr. K. R. Singh had taken this point. In such circumstances, it appears that Mr. Singh was not very serious in pressing the preliminary objection. Had he been so serious in that event he would have taken this point at the very outset before Shri Rai had opened his case. THE a part af fidavits have been exchanged and the mat ter has been heard. THErefore, I do not find any reason that the petitioner could not now be thrown on the ground of alterna tive remedy. THErefore, this point taken by Mr. Singh is overruled. The question that the petitioner has suffered double jeopardy appears to be misconceived. Inasmuch as the order dated 22-11-1995 contained in Annexure-2 appears to be a note given on the service record of the petitioner. A perusal of Annexure-2 shows that it was not a punish ment inflicted on the petitioner on ac count of the finding of guilt in the domes tic enquiry. Inasmuch as proposal was put up on 30-6-1995 about the entries in the service record of the petitioner with regard to integrity wherein it was men tioned that since the petitioner was under suspension, therefore, his integrity cannot be certified at this stage. Subsequently again by order dated 29-7-1995 and 5-6-1995 the same note has been put up to the extent that enquiry against the petitioner was proceeding, therefore, no entry with regard to integrity can be (sic) in the ser vice record until the enquiry is over. On 22-11-1995 after the enquiry was over, the authority concerned had noted that since charges against the petitioner have been proved in the enquiry, therefore, the entry with regard to the integrity in the service record is with held. Thus, the whole docu ment shows that it was only with regard to the entry in the service record with regard to integrity which could not be certified since he was found guilty in the domestic enquiry. Therefore, it is not a punishment but only an endorsement in the service record with regard to the integrity which could not be certified. The same is in effect a consequential order without inflicting any punishment. The entry in the service record can be made only upon notice. In the present case the petitioner had notice about the finding of guilt in the domestic enquiry. But this becomes academic as soon the petitioner is dismissed from ser vice on the charges levelled against him. If the petitioner is dismissed from the service it is immaterial as to whether entry in service record could be entered or not. Then again this entry relates to the period 1994-95 viz. till 31-3-1995 as is apparent from Annexure-2 itself. Therefore, the said entry, if adverse, relates to a period before awarding of punishment pursuant to domestic enquiry. Therefore, entry having not been related to the year 1995-96 which includes 22- 11-1995. The same cannot be treated to be a punishment on the basis of finding of domestic enquiry. In such circumstances. I am unable to agree with the contention of Mr. Rai.;