V. S. DAVE, J. - (1.) THIS is civil second appeal filed against the judgment and decree passed by Addl. Civil Judge No. 2, Ajmer, dated May 31, 1986, upholding the judgment and decree passed by the Addl. Munsiff (East), Ajmer who dismissed the suit for declaration filed by the plaintiff-appellant.
(2.) THE plaintiff-appellant filed a suit in the court of Munsiff (East), Ajmer on May 26, 1981. He pleaded that he was working as Conductor in Rajasthan State Road Transport Corporation (hereinafter referred to as "the Corporation"), and was posted at Bhilwara. On May 10, 1979 while he was on duty as Conductor on Corporation's Bus No. RSV 8708, the bus was checked and certain passengers are alleged to have stated that despite the fact they had given money the ticket was not given to them and some passengers were found without tickets. He was, thereafter, charge-sheeted on the allegation that he was carrying passengers who had no tickets despite the fact that he had charged from them. He was suspended on May 28, 1979, and an enquiry was instituted against him. After the enquiry was over, he was removed from service. He preferred an appeal which was partly allowed by the appellate authority who directed his reinstatement and the penalty of removal was reduced to stoppage of two grade increments. A criminal case was also instituted against the appellant in the court of Judicial Magistrate (Transport), Aimer for offence under S. 8 of the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975 (hereinafter referred to as "the Act"), and the learned Magistrate after trial convicted him of the said offence and sentenced him to pay a fine of Rs. 60/-, in default of payment of fine he was directed to suffer 3 days' simple imprisonment vide judgment dated February 3, 1981. On the same day Addl. Divisional Manager of the Corporation, Ajmer dismissed him from service, as in his opinion, the conduct of the appellant, which led to his conviction, disentitled him to remain in service. He therefore, filed a suit challenging the dismissal order, dated February 3, 1981, on various grounds, inter alia that ha could not be dismissed as he had already been punished under the service rules and also that Shri K. N. Gupta who passed the order was not the competent authority not being Divisional Manager, He was only Assistant Divisional Manager who acted as Divisional Manager on the date of passing of the order since the Divisional Manager was on leave. The suit was contested by the defendant-respondents who pleaded that the plaintiff had committed the acts of misconduct and it was thus not desirable in the public interest to continue him in service, particularly after his conviction by the Judicial Magistrate. Jurisdiction of civil court was also challenged and it was pleaded that the plaintiff had remedy by way of raising an industrial dispute. The other facts pleaded by the plaintiff were also denied. The trial court framed 3 issues. The plaintiff appeared in witness-box, while the defendant examined Durga Singh, Officer Incharge of the Corporation, Ajmer as its witness. The evidence of the parties was closed on January 29, 1983, and the arguments were concluded on March 8, 1983, and the judgment was reserved. The learned Mun-siff felt that before deciding the case it was essential in the interest of justice that defendants be asked to produce certain documents, he, therefore, passed an order to that effect on March 18, 1983, and directed the defendants to produce five documents. The defendants sought time for filing the same and time was granted on April 22, 1983. Time was again sought on April 30, 1983, May 11, 1983, May 23, 1983, July 6, 1983, August 6, 1983, August 26, 1983, September 3, 1983, September 12, 1983, November 30, 1983 and December 8, 1983 but the documents were not produced for almost a year and the trial court had to decide the suit which however, was dismissed. The plaintiff-appellant went in appeal which too was dismissed hence this second appeal was preferred. Since substantial questions of law were involved in this case, the appeal was admitted and notice was issued to the defendant-respondents after framing the following two points: (1) Whether an employee can be legally punished twice for one and the same delinquency? (2 ). Whether an employee can be removed from service by an authority subordinate to that by which he was appointed, if that subordinate authority is looking after the work of the absentee higher authority as per practice in the office? It has been contended by the learned counsel for the appellant that the charge-sheet was served upon the petitioner under Rajasthan State Roadways (Workers and Workshop Employees) Standing Orders, 1985 (hereinafter referred to as "the Standing Orders), and after a detailed protected enquiry he was punished and a penalty of dismissal was imposed on him, which however, was converted into penalty of stoppage of two grade increments on an appeal. It was therefore, submitted that the remedy available to the defendant-respondents under the Standing Orders was already exhausted. He was tried and punished and thus penalty could not be imposed under the same Standing Orders on the same charge after his conviction by a criminal court. It is submitted that this amounts to double jeopardy which is not permissible under the law. Learned counsel in support of his arguments draws analogy from the decision of their Lord-Ships of the Supreme Court in State of Assam vs. J. N. Roy Bisvas: (1) where the delinquent after an enquiry was exculpated and reinstated. After some time the Government re-opened the proceedings. It was held by their Lord-ships of the Supreme Court that in the absence of the rules and power vested in the authority by such rule though there is no bar of double jeopardy but still this cannot be done. Reliance has also been placed on a case cited in the Commentary written by B. R. Ghaiye in his Book Law and Procedure of Departmental Enquiry. At page 430 he has mentioned about a case K. Srinivas Rao vs. Director of Agriculture, Writ Petition No. 3213 of 67, dated January 23, 1970 wherein it has been held that when an employee is exonerated in departmental enquiry, then no action can be taken on the basis of subsequent conviction. On the second question that Shri Gupta could not pass orders as he was not a Divisional Manager, learned counsel submits that during the period of absence on leave of the superior officer the person acting can only pass routine orders of urgent nature but cannot decide the cases where the jurisdiction is vested in that authority unless the person is either appointed to that post in officiating capacity or specific orders are passed authorising him to exercise the powers of the superior officer. Mr. Mandhana then submits that the conduct of the defendant-respondents in the entire case had been such which requires not only the setting aside of their orders and reinstatement of the petitioner with back wages and consequential benefits but award of compensatory costs also. Mr. Dhankhar appearing on behalf of the Corporation supported the judgments of the courts below. He submitted that the misconduct of the plaintiff -appellant was such for which the penalty of stopping of two grade increments was wholly disproportionate and once he had been held guilty of the offence no enquiry was contemplated and as it is neither required under Art. 311 of the Constitution of India or by the Standing Orders.
(3.) I have given my thoughtful consideration to the rival contentions and have perused the record. So far as the question of facts about the allegation being common to both, i. e. , in the departmental enquiry as well as about criminal case before the Magistrate there is no dispute between the parties. It is an admitted case that the appellant was conductor on bus No. RSV 8708 which was checked on May 10, 1979, and some Ticketless travellers were found travelling in the said bus. He was charge sheeted departmentally for this and after a departmental enquiry punishment of dismissal was imposed against him and he preferred an appeal thereafter. On appeal the penalty was reduced to one that of stoppage of grade increments for two years. Thus the departmental enquiry finally terminated into stoppage of two grade increments. This order came to be passed on July 2, 1980. When the criminal case came for hearing the learned Judicial Magistrate (Transport), Ajmer, convicted the appellant of the offence under S. 8 of the Act and sentenced him to pay a fine of Rs 60/- on February 3, 1981. It is thereafter that Shri K. N. Gupta who was looking after the work in the absence of Shri Lakshman Singh who was posted as Divisional Manager and was on leave on that day immediately issued the impugned orders of dismissal on same day holding that because of the conviction of the appellant he has reached the conclusion that he has rendered himself unfit to be a conductor and, therefore, he dismissed him. Thus, the only controversy in the case is whether this order of dismissal could be passed by Shri K. N. Gupta in pursuance of conviction purporting to be one under the Standing Orders. A criminal case when instituted will terminate in acquittal or conviction of an accused who is charged with the offence alleged against him. In case of conviction he can be dealt with either under the provisions of Probation of Offenders Act or the sentence can be imposed upon him as permissible by law. In the instant case the court held the accused guilty, and after recording conviction adopted the latter course of imposing a sentence of fine of Rs. 60/ -. No further action was contemplated either by the criminal court or under any of the provisions of the Act, since proceedings under the Act terminated with the conviction and passing of the sentence. Thus, if permissible the appellant could only be dealt with under the provisions of the Standing Orders. It is well settled that holding of a departmental enquiry subsequent to even a trial by a criminal court on the same facts is not barred. There is also no bar if both the proceedings are simultaneously drawn but the question is if one of the two proceedings has culminated into an exoneration or finding of guilt and an action is taken in consequence of that, whether it can again be revived after the proceedings in the different forum are terminated. The principle of double jeopardy is well recognized in all civilized societies and in States governed by rule of law. The principal of autrefois acquittal and autrefois convict has been recognized and incorporated not only in Sec. 300 Cr. P. C. but the framers of the Constitution of India have kept it as one of the fundmental rights in Art. 20 (2) of the Constitution of India reads as under; "no person shall be prosecuted and punished for the same offence more than once". This Article has been subject matter of decision in several cases in the matter of departmental enquiries also. Common law Courts in England had accepted the principles. The law of Condonation and Law of Waiver in matters between master and servant and this has now gone down as a law by precedent that if a man has once been exonerated or punished in a departmental enquiry unless the same is set aside on the ground of procedural defects second enquiry is barred. In Dwarka Chand Vs. State of Raj. (2) an important question came for consideration as to whether an order exonerating a public servant in a departmental enquiry it is open to revision by a superior authority in the absence of any rules to that effect. Chief Justice Wanchoo, as he then was, speaking for the court held as under: ". . . If a superior officer holds a departmental enquiry in a very slipshod manner or even dishonestly, the State can certainly take action against that superior officer and in an extreme case even dismiss him for his dishonesty in the departmental enquiry which he conducts. . . . If we were to hold that a second departmental enquiry could be ordered after the previous one has resulted in the exoneration of a public servant, the danger of harassment to the public servant would, in our opinion, be immense. If it were possible to ignore the result of an earlier departmental enquiry, then there will be nothing to prevent a superior officer, if he were so minded, to order a second or a third or a fourth or even a fifth departmental enquiry after the earlier ones had resulted in the exoneration of a public servant. . . . It was not the intention of the Service Rules that the exoneration of a public servant in a departmental enquiry should be open to review in the same manner as the acquittal of an accused is open to appeal in the Criminal Procedure Code. . . . If there is no rule or law which lays down that an order exonerating a public servant in a departmental enquiry is open to revision and a fresh enquiry ordered, it is not, in our opinion, open to the State to assume such a power on the ground that Article 310 provides that the tenure of public service is at the pleasure of the President or the Government or on the ground that the State is the master and the public servant is the employee and the master can do anything to his employee". The aforesaid case has been followed by Andhra Pradesh High Court in K. Srinivasa Rao Vs. The Director on Agritucluture (3), wherein after reviewing the entire law as it existed till then the court came to the conclusion that if a Government servant has once been subjected to a departmental enquiry resulting in final order he cannot be proceeded with the second enquiry on the same facts on the basis of his conviction by criminal court. In this case K. Srinivasa Rao who was serving as a teaching Assistant in Agriculture College was charged for committing an embezzlement of Rs. 3660/-, a departmental enquiry was instituted against him after his suspension. In that enquiry he was held guilty of non-observations of certain rules resulting in the loss of that amount to the Government and, therefore, the recovery of the said amount from his salary in monthly instalments was ordered against him. In addition to that a penalty of the censure was also imposed. Since a criminal case has also been instituted on the same charge he was prosecuted for offence under S. 409 read with S. 109 IPC. He was held guilty of the offence under S. 409 IPC and was sentenced to imprisonment till rising of the court and to pay a fine of Rs 200/ -. After this conviction the department decided to initiate a second enquiry which was challenged by him in Andhra Pradesh High Court and it was in these circumstances that the court held that he was not liable to be prosecuted again for the third time on the basis of conviction by the criminal court for the same offence of misappropriation. Under the I. P. C. the court further held that no specific rule providing for a third enquiry against the petitioner on the basis of conviction by the court has been brought to the notice of the court. Facts of the above case are similar to the facts of the present case and is applicable on all tours. Besides this it is one of the basic fundamental principles that none can be kept in constant fear for all times to come and sword of damocle cannot be kept hanging on the neck of an employee. When a competent quasi-judicial authority takes a particular decision and it judges the conduct it cannot be re-adjudicated unless the law specifically permits If the fault is once condoned the matter cannot be revived. The basic principle is hatchet once buried should not be unearthed again and again and therefore, one misconduct one enquiry under one law and none can be punished twice under the same law. He has a right to have a fair enquiry as contemplated by law and not beyond it. No law recognizes the whim of an employer to be a rule of law. He is supposed to act within the four corners of the settled principles much less when he has to deal with them in the matter of disciplinary actions. Neither the service rules nor Art. 311 of the Constitution contemplates dismissal, removal or reduction in rank on the ground of conviction from the court of law, they only dispense with an enquiry and the dismissal, removal or reduction in rank can only be done under the relevant rules framed under Art. 309 of the Constitution of India, under the Standing Orders issued under the Industrial Disputes Act, as the case may be Conviction from a criminal court is relevant only for two factors, one is that the guilt of the accused has been adjudicated and second that his conduct is relevant. Thus, on this conduct which has led to his conviction that if it is such which disentitles him or makes him unfit to continue in service, then alone under the relevant service law he can be penalised. Thus, ipso facto on the basis of conviction alone no penalty can be imposed departmentally, unless there is finding on consideration of the conduct. Thus, an aid of relevant service rules or Standing Orders is condition precedent to passing an order of dismissal, but if the remedy under the Standing Orders of the service law has already been exhausted before the termination of the criminal proceedings, then the Departmental authorities cannot for the second time take into consideration the conduct which has led to the conviction of the person. A conduct can be looked into only once in one forum and cannot be adjudicated again and again. I am further fortified in my view by the observations made by Hon'ble justice Krishna Iyer in The State of Assam Vs. J. N. Roy Biswas: (supra) wherein it has been observed that "once a disciplinary case has closed and the official re-instated, presumably on full exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basic of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry"'. Thus, I am firmly of the opinion that no penalty could be imposed on the petitioner on the basis of his conviction by the learned Magistrate and the order dismissing the appellant is patently illegal and deserves to be set aside. ;