GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 7. 10. 1991 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 3. 10. 1991 (Annex. 6) passed by the respondent No. 2- Chief Engineer, Public Health Engineering Department, Rajasthan, Jaipur by which the petitioner was removed from service be declared illegal and be quashed and set aside.
(2.) IT arises in the following circumstances:- The petitioner was initially appointed as Lower Division Clerk/store Munshi on work-charged basis in Public Health Engineering Department and, thereafter, he was appointed as Lower Division Clerk on regular basis with effect from 1. 4. 1971. He was, thereafter, promoted to the post of Upper Division Clerk vide order dated 7. 3. 1980, a copy of which is marked as Annex. 1. A charge-sheet dated 20. 12. 1975 (Annex. 2) was served on the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") and the charge levelled against the petitioner in that charge-sheet (Annex. 2) was that while he was working as Cashier, he collected certain amount totalling Rs. 2479. 50, which he embezzled and deposited it subsequently. the departmental enquiry was held against the petitioner in the matter and thereafter, the respondent No. 2 Chief Engineer vide order dated 9. 9. 1977 imposed the penalty of stoppage of one grade increment without cumulative effect upon the petitioner. A copy of the order dated 9. 9. 1977 is marked as Annex. 3. Subsequently, a criminal complaint was also lodged against the petitioner in the Police Station Napasar District Bikaner by the Chairman and General Secretary of Rashtriya Jal Mazdoor Union, Bikaner on 8. 1. 1978 in regard to the same amount of Rs. 2479. 50 for which he was already punished in the departmental enquiry. A case for the offence under Sec. 409 IPC was registered against the petitioner and after investigation, a challan was filed in the Court of Magistrate. After conclusion of trial, the learned Chief Judicial Magistrate, Bikaner through his judgment and order dated 30. 10. 1987 (Annex. 4) convicted the petitioner for the offence under section 409 IPC and sentenced to undergo one year RI and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo three months imprisonment. IT may be stated here that against the said judgment and order dated 30. 10. 1987 (Annex. 4) passed by the learned Chief Judicial Magistrate, Bikaner, the petitioner preferred an appeal before the learned Sessions Judge, Bikaner and the learned Sessions Judge, Bikaner vide order dated 19. 11. 1987 (Annex. 5) suspended the operation of the order of sentence and, therefore, the appeal was transferred to the Court of Special Judge, SC/st Cases and Addl. Sessions Judge, Bikaner. Note:- During the course of arguments, the learned counsel appearing for the respondents brought to the notice of this Court that the appeal filed by the petitioner against his conviction for the offence under Section 409 IPC was dismissed by the learned Special Judge, SC/st Cases and Addl. Sessions Judge, Bikaner through judgment dated 12. 4. 1993 and the judgment and order dated 30. 10. 1987 (annex. 4) passed by the learned Chief Judicial Magistrate, bikaner convicting and sentencing the petitioner for the offence under section 409 IPC were maintained. A copy of the judgment dated 12. 4. 1993 passed by the learned Special Judge, SC/st Cases and Addl. Sessions Judge, Bikaner was placed on record. Thus, the appeal of the petitioner was decided after filing of the writ petition. After conviction of the petitioner for the offence under Sec. 409 IPC by the learned Chief Judicial Magistrate, Bikaner, the respondent No. 2 Chief Engineer while exercising powers conferred by proviso to Article 311 (2) of the Constitution of India read with Rule 19 of the CCA Rules, passed as order dated 3. 10. 1991 (Annex. 6) imposing penalty of removal form service on the petitioner. In this writ petition, the order dated 3. 10. 1991 (Annex. 6) by which the petitioner was removed from service has been challenged on various grounds and the main ground of the petitioner is that once a penalty has been imposed after holding departmental enquiry, no power remains with the authority to impose a penalty again the same matter on the ground that he was convicted in a criminal case. Hence, the impugned order dated 3. 10. 1991 (Annex. 6) passed by the respondent No. 2 Chief Engineer is illegal and without jurisdiction as he had no power to review his earlier order dated 9. 9. 1977 (annex. 3) by which the imposed penalty of stoppage of one grade increment without cumulative effect upon the petitioner. IT was further submitted by the learned counsel for the petitioner that the impugned order Annex. 6 dated 3. 10. 1991 is not only illegal, but it is also violative of Article 20 (2) read with Article 311 of the Constitution of India, as Article 20 (2) f the Constitution of India prohibits the punishment of a person for the same offence more than once. Since the petitioner was already punished for the misconduct in the departmental enquiry, therefore, no other penalty could be imposed by the respondents on the petitioner again on his conviction. This, from this point of view also, the impugned order dated 3. 10. 1991 (Annex. 6) cannot be sustained. A reply to the writ petition was filed by the respondents on 21. 7. 1991 and through reply, a circular dated 24. 4. 1990 (Annex. R/1) issued by the Government of Rajasthan, Department of Personnel (A-III), Jaipur has also been filed. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the materials available on record. So far as factual position is concerned, there is no dispute on the point that there was a charge against the petitioner for embezzling Rs. 2479. 50 in capacity as Cashier and for that, first he was charge-sheeted under Rule 16 of the CCA Rules and in that departmental enquiry, he was punished and penalty of stoppage of one grade increment without cumulative effect was imposed upon him vide order dated 9. 9. 1977 (Annex. 3 ). There is also no dispute on the point that FIR was also lodged against the petitioner and on the basis of that FIR, a case for the offence under section 409 IPC was registered against the petitioner and after investigation, challan was filed against the petitioner in the Court of Magistrate, and after conclusion of trial, the learned Chief Judicial Magistrate, Bikaner vide judgment and order dated 30. 10. 1987 (Annex. 4) convicted the petitioner for the offence under Section 409 IPC and sentenced to undergo one year RI and to pay a fine of Rs. 1000/-, in default of payment to fine, to further undergo three months imprisonment. There is also no dispute on the point that after conviction of the petitioner for the offence under Sec. 409 IPC by the Criminal Court, the impugned order dated 3. 10. 1991 (Annex. 6) removing the petitioner from service was passed by the respondent No. 2 Chief Engineer.
(3.) IT may be stated here that the appeal filed by the petitioner against the judgment and order dated 30. 10. 1987 (Annex. 4) passed by the learned Chief judicial Magistrate, Bikaner was also dismissed by the learned Special Judge, SC/st Cases and Addl. Sessions Judge, Bikaner through judgment dated 12. 4. 1993 and his conviction and sentence for the offence under Sec. 409 IPC were maintained. However, it is made clear that the appeal of the petitioner was decided after filing of the writ petition. Looking to the above facts and circumstances of the case, the question for determination in this writ petition is that where a person who has been punished earlier in a departmental enquiry under Rule 16 of the CCA Rules and later on, on the same charge, if he is convicted by the Criminal Court and subsequent to his conviction in criminal case, if an order of removal from service has been passed against that person, whether such an order of removal is illegal or without jurisdiction or hit by the principle of double jeopardy as envisaged under Article 20 (2) of the Constitution of India or not. It may be stated here that Clauses (1), (2) and (3) of second proviso to Article 311 (2) of the Constitution of India correspond to clauses (i), (ii) and (iii) of Rule 19 of the CCA Rules. Rule 19 of the CCA Rules reads as follows:- " Rule -19-Special Procedure in certain cases.- Notwithstanding anything contained in Rules 16, 17 and 18.- (i) where a penalty is imposed on a conduct which has led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure. The Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary. " ;