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Article 311(2) in The Constitution Of India 1949
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Central Administrative Tribunal - Bangalore
K. Ganesha vs Department Of Telecom By Its ... on 21 January, 2004
Equivalent citations: 2005 (1) SLJ 1 CAT
Bench: H A S.K., M K Gupta



ORDER
 

Mukesh Kumar Gupta, Member (J)
 

1. Two interesting questions raised in the present application are:-(i) whether the proceeding or action initiated/taken under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is in addition to the departmental proceedings for which procedure is prescribed under Rule 14/16 of the said Rules or alternate to it? (ii) Whether the respondents could be restrained from exercising power under Rule 19 of the CCS (CCA) Rules, on the plea that based on same incident the delinquent official had already suffered departmental action earlier in time and as such later conviction and sentence recorded in the criminal proceedings would not clothe the authorities to initiate further action under the aforesaid Rule?

2. Before noticing the facts, it would be desirable to note the reliefs prayed for, which are as follows:

"(a) Hold that in the facts and circumstances of the present case, respondents are not entitled to proceed against the applicant under Rule 19 of the CCS (CCA) Rules, 1965 on the basis of conviction order passed by CBI Court, Bangalore in Spl. C.C. No. 207/1989 Annexure-A4 And consequently

(a) Quash the order bearing No. VIG/KG/SDE/MGI/9, dated 9-10-2003, Annexure-A9, passed by R-4 authority and order bearing No. E-7/3/VI/53 dated 8-10-2003, Annexure-A8, passed by R-4 authority.

(b) Direct the respondents to restore the applicant to the position held by him before passing the orders Annexures-A8 and A9 with all consequential benefits including the monetary benefits.

(c) Pass any other orders or direction that this Hon'ble Tribunal may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity".

3. The admitted facts of the case arc as under:

The applicant, holder of a substantive post of Junior Telecom Officer, Group-B, alleged to have prepared false summary sheets and issued paper bundles to printers, for which, based on complaint made by the Department, CBI registered a criminal case under RC No. 10/1988 dated 29.03.1988 (Annexure-A3) for criminal conspiracy to misappropriate the papers, against the applicant besides one Sri M.A. Barnabus. After investigating the said complaint, CBI filed a case in the Court of learned Special Judge, Bangalore under Special C.C. No. 207/1989. Simultaneously, a charge memo under Rule 14 of CCS (CCA) Rules, 1965 (hereinafter referred as the Rules) containing 4 articles of charge, was issued on 1st January, 1990. Based on an oral inquiry held, charge Nos. 1 and 4 were held to be proved and after following due procedure a penalty of reduction of pay by 8 stages for a period of 5 years was imposed vide order dated 4-02-1997, which was confirmed in appeal vide order dated 22-01 -1998 (Annexure-A2). Immediately thereafter, the learned Special Judge, Bangalore vide judgment dated 8.12.1998 (Annexure-A4) convicted the applicant and sentenced him to undergo rigorous imprisonment for a period of one year besides fine of Rs. 1,000/-. According to respondents, they received the copy of the said judgment belatedly on 13th August 2003. A memorandum dated 17th September, 2003 (Annexure-A5) was issued requiring the applicant to explain why disciplinary action be not initiated for suppressing material information regarding his conviction by the Court of law. The said memorandum was disputed vide representation dated 29th September, 2003 (Annexure-A6) by stating that he was under bonafide impression that CBI authorities would inform department about the said judgment and order and he had no malice or motive in not informing the authorities about the same and accordingly prayed for exoneration from further action, if any. Immediately thereafter, vide order dated 8-10-2003 (Annexure-A8), the applicant was reverted and posted as JTO, Madhugiri. It needs to be noticed at this stage that the applicant was promoted on local officiation basis as Sub-Divisional Engineer with effect from 12th May, 2003. On the very next day, an order dated 9th October, 2003 (Annexure-A9) was passed by the 4th respondent stating that disciplinary proceedings were contemplated against the applicant under Rule 19 of the Rule and, therefore, in exercise of the powers conferred by sub-rule (1) of Rule 10, he was placed under suspension. During the period of suspension, the applicant's headquarter was fixed at Madhugiri and he was directed not to leave headquarters without obtaining prior permission. Vide representation dated 13-10- 2003 (Annexure-A 11), the applicant being aggrieved against the said memoranda dated 8- 10-2003 as well as 9-10-2003, prayed for reconsidering the action and sought permission to stay at Bangalore during the supension period, which remained unattended.

4. In the present application the applicant has questioned the validity of the orders dated 8-10-2003 and 9th October, 2003 and further sought a declaration that the respondents are not entitled to proceed against him under Rule 19 based on conviction order passed by the CBI Court, Bangalore on 8-12-1998, on various grounds, inter alia, that the said Rule 19 docs not envisage straight away action by the Disciplinary Authority for imposing penalty without following the prescribed procedure under Rules 14-18 of the said Rules. If departmental proceedings precede criminal proceedings and a delinquent official suffers the punishment imposed in the said departmental proceedings, it is not open to the authorities to invoke Rule 19 of the said Rules, based on subsequent judgment & conviction in criminal proceedings, particularly when both the proceedings were based on same incident. Such a course of action, as contemplated, is hit by the doctrine of double jeopardy. The scope of Rule 19 in itself is not over and above the remedy but only provides for dispensing the procedure provided under Rules 14-18 of the said Rules. Once an authority chosce to proceed against the delinquent official simultaneously, as in the instant case, the departmental authorities arc precluded from punishing the delinquent official later, for the second time by invoking Rule 19 based on conviction recorded by the Criminal Court. It is contended that the applicant was placed under suspension immediately after charge memo dated Ist January, 1990 was issued, which had been revoked during the pendency of the said proceedings. The applicant has also questioned the exercise of power under Rule 10(1) of the Rules for second time as he has been placed under suspension vide order dated 9-10- 2003. Based on contemplated action under Rule 19 of the Rules, he could not be placed under suspension again for the same and similar event or conduct. The impugned action lacks jurisdiction, power and authority and it is high handedness on the part of the authorities, contended the applicant.

5. The respondents, on the other hand, filed their reply and contested the claim laid by the applicant. Three preliminary objections have been raised which are; (i) that the present application is premature and misconceived in as much as no final action has been taken under Rule 19 of the Rules, so far and the applicant's representation dated 13-10-2003 still remains pending, (ii) the present application suffers from misjoinder of causes of action. inasmuch as the order dated 8th October, 2003 (Annexure-A8) and order dated 9th October, 2003 (Annexure-A9) are based on different cause of action and in terms of Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987 the present application, which is based on different cause of action & not consequential to each other is not maintainable, and (iii) under Rule 19 of the Rules, the respondents are empowered and entitle to proceed and take suitable action under three conditions & exigencies enumerated therein and it is the cardinal principal that the Court or Tribunal would not restrain an authority in performing its duty in accordance with law.

6. On merits, it is stated that during the year 1987-88 the applicant entered into criminal conspiracy with late Sri M.A. Barnabus, who was working as Godown Circar, and misappropriated the papers from Circle Telecom Store Depot, Bangalore, value of which was quantified at Rs. 33,563/-. Based on complaint, charge sheet was filed by CBI before the learned Special Judge, Bangalore and the applicant was convicted under Section 235 Cr. P.C. for offences punishable under Sections 120B, 477A and 420 IPC read with Section 5(2) of the Prevention of Corruption Act, to undergo rigorous imprisonment for one year and a fine of Rs. 1,000/-. Based on the said conviction, action under Rule 19 of the Rules was contemplated and the applicant was suspended vide order dated 9-10-2003. It is further contended that action against the applicant under the said rule is yet to be initiated. In exercise of power under Rule 19, notwithstanding the procedure prescribed under Rules 14- 21 of the said Rules, if a delinquent official is convicted on a criminal charge, the Disciplinary Authority under the given circumstances, after providing an opportunity of making representation, could impose appropriate penalty subject to the consultation with the UPSC wherever it is necessary. In the facts and circumstances of the present case, merely because the Competent Authority had already placed the applicant under suspension on the earlier occasion, the principle of double jeopardy did not arise inasmuch as the applicant is not being tried in any Court for the same offence; second time. Departmental action and the Criminal proceedings stand on different footing and are not comparable. The action taken/ initiated under Rule 19 of the said Rules, consequent upon conviction by the Criminal Court, is an invitable corollary & consequence and, under no circumstances amounts to double jeopardy. The applicant was reverted to his substantive post of Junior Telecom Officer in terms of Government of India, Department of Telecom O.M. dated 10-06-2002 (Annexure-R4) as he had no vested or legal right to continue in the officiating post of Sub-Divisional Engineer. Merely because the said conviction is the subject matter in an appeal before the High Court, the stay of said sentence could not be a mitigating factor prohibiting, restraining the respondents from exercising the power as available under Rule 19 of the said Rules.

7. We heard learned Counsel for the parties at length and perused the records placed before us, carefully. Before we proceed on the merits of the case, we would like to first deal with the preliminary objections raised by the respondents.

8. It is seen from the reply statement filed by the respondents that the applicant was suspended on 9th October, 2003 as action against the applicant was contemplated under Rule 19 of the Rules, based on his conviction by a Court of law. The respondents in the same breath further stated that action against the applicant under Rule 19 "is yet to be initiated". In reply paras 4, 9 the respondents went on to state that: "Since disciplinary action under Rule 19 is under process, he was reverted to his basic cadre i.e., JTO vide instructions contained in para 2 of Government of India, Department of Telecom, New Delhi Order No. 39-1 /2002-SEA-II dated 10.6.2002."As such it is manifest that the reversion of the applicant is based and dependent on contemplated disciplinary action under Rule 19. This being so, the respondents contention that the application is premature, misconceived and suffers from misjoinder of alleged causes of action, does not hold the field and consequently deserves to be rejected.

9. Their further contention that the applicant's representation dated 13.10.2003 with regard to the suspension order dated 9.10.2003 is still pending deserves to be rejected for the simple reason that a perusal of the said representation would show that the applicant had not made any submission on merits regarding suspension order dated 8.10.2003 as well as memorandum dated 9.10.2003, though the said representation was made with reference to the aforesaid memoranda's. The only request made under the said representation was to grant permission for his stay at Bangalore during the period of suspension to mitigate hardships faced by him. It is no doubt true that action under Rule 19 is yet to be initialed. Since the applicant has sought a relief in the nature of declaratory relief, merely because no order under Rule 19 has yet been passed, it cannot be accepted that no cause of action arose to the applicant. Be that as it may, in view of the above facts, we do not find any substance and justification in the preliminary objections raised by the respondents regarding maintainability of the present application and the same accordingly stand overruled.

10. As we have already noticed, the applicant's reversion order dated 8.10.2003 was based on contemplated disciplinary action under Rule 19, which in turn is based on para 2 of Government of India, Department of Telecom O.M. dated 10.6.2002. It would be relevant to note its contents, extract of which reads as under:

"2. According to the above mentioned O.M., where an appointment has been made purely on an ad hoc basis against a short term vacancy or a leave vacancy, or if the Government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period of less than one year; the Government servant shall be reverted to the post held by him substantially/or a regular basis when the disciplinary proceedings are initiated against him.

XX XX XX

4. Information about the initiation of disciplinary proceeding does not, in many cases, reach SEA Branch in time. It is, thus, clarified that when an employee holding a higher post as per arrangements spelt out in para 1 ibid is issued with a charge sheet in a disciplinary case in line with the DOP & T's instructions, he is to be reverted by the Circle immediately after issue of the charge sheet, without awaiting further directions from DOT, Head- quarters. The orders will apply to cases where the higher post has been held on an ad hoc basis for a period of less than a year. And wherever the ad hoc- promotions have been ordered by this office, intimation of reversion may be given to Director (SEA) DOT at the earliest."

(Emphasis supplied) It is an admitted fact that the applicant was promoted on local officiating basis as SDE with effect from 12th May, 2003 and in terms of para 2 of the aforementioned para the appointment of the applicant was purelyad hoc and temporary basis. As he held the said post for a period less than one year, based on the aforementioned communication dated 10.6.2002 he had no legal and indefeasible right to continue in the said post and consequently has rightly been reverted. In view of this, the challenge made to reversion order dated 8.10.2003 (Anncxure-A8) is found to be devoid of merits and not tenable.

11. Before proceeding further, let us notice the provisions of Rule 19 which reads as follows:

"19 Special Procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18

(i) Where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) Where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or

(iii) Where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules.

the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit;

Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (1);

Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule."

(Emphasis supplied)

12. Mr. P.A. Kulkarni, learned Counsel for the applicant vehemently contended that under the rules in vogue, the authorities are not empowered to place the applicant under suspension for the second time for the same reason and incident for which he was already placed under suspension and then revoked. It would be desirable at this stage to notice the language employed in the said Rule 10, which empowers the authorities to place an official under suspension, relevant extract reads as under:

"10(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension -

(a) Where a disciplinary proceeding against him is contemplated or is pending; or (aa) Where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial."

As noticed above, in exercise of power under the said rules, an official could be placed under suspension under three circumstances and conditions as enumerated in Clauses (a), (aa) and (b). It is settled principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary and popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. Bearing in mind the aforesaid principles of construction, if we examine the aforementioned rule, it would be clear that an official could be placed under suspension under three circumstances: (i) where disciplinary proceedings is contemplated or pending; (ii) where a delinquent has engaged himself in the activities prejudicial to the interest of the security of the State; and (iii) where any criminal offence is under investigation, enquiry or trial pending against him. In the present case, the applicant was placed under suspension vide order dated 9.10.2003 as disciplinary proceedings under Rule 19 of CCS (CCA) Rules, 1965 "are contemplated". On the face of such an order; it cannot but be held that the Competent Authority has rightly exercised the power of placing the applicant under suspension as disciplinary proceedings under Rule 19 are contemplated against the applicant. 'Contemplation' or 'pendency' of disciplinary proceeding is one of such circumstances whereby an official can be placed under suspension. But the controversy does not end here.

In the present case the contention is that when disciplinary proceedings were initiated against the applicant under Rule 14 vide Memo dated 1.1.1990 he was placed under suspension and therefore, based on the same incident the authorities had no power and jurisdiction to place the applicant under suspension for the second time, when based on subsequent conviction disciplinary proceedings under Rule 19 are contemplated against him. On consideration of rival contentions as well as rule position, we are of the considered view that perusal of Rule 10 no where either prohibits, restrains or restricts the authorities to place an official under suspension particularly when a power is exercised under different rule or at different stages, may be based on the same incident like in the present case. When the applicant was placed under suspension for the first time, he was facing departmental proceedings under Rule 14 of the CCS(CCA) Rules and not the proceedings under Rule 19. The departmental proceedings initiated under said Rules 14 and 19 are two distinct, different and separate proceedings. In Nalinakhya Bysack v. Shyam Sunder Halder and Ors., 1953 SCR 533 at pages 544-545 relying on observation made by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel, L.R. (1891) A.C. 531 at p. 549, it was observed that:" It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is any defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner, 6 Moo P.C.1, aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up the deficiencies which are left in the Act. Even where there is a oasus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidator of Dehradun-Mussoori Electric Tramway Co. Ltd., AIR 1933 PC 63, for others than the Courts to remedy the defect."

The said law and observations have been reiterated by a Constitution Bench of the Hon'ble Supreme Court in (2001) 7 SCC 71 Dadi Jagannadham v. Jammulu Ramulu and Ors. in the following manner:

"The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtely, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction make up deficiencies which are there."

(Emphasis supplied) In (2001) 3 SCC 594, Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors., the Hon'ble Supreme Court approved the observation made in a judgment of Keshavji Ravji & Co. v. CIT, 1990(2) SCC 231, that: "As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the legislature cannot then be appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the legislature."

13. In our considered view, the language used under Rule 10(1) is unambiguous and did not require use of any principles of construction. The mandate of the said rule can not be tinkered with as suggested by the learned Counsel for the applicant. If the intention of the rule making authorities were that a person cannot be placed under suspension for the second time while resorting to exercise of power under the different provisions of rule, based on the same incident, the wordings of the said rule would have been totally different and distinct than as found. Having observed that the language of Rule 10(1) is unambiguous and clear, its grammatical and natural meaning must be advanced irrespective of its consequence.

In view of the discussion made herein above, we find no justification in the contention raised by the learned Counsel that it is not permissible to the authorities to place the applicant under suspension for the second time for the same reason and incident as contended and therefore, the same is rejected.

14. The proceedings under Rule 14/16 and Rule 19 are two different, distinct and separate proceedings. We are fortified in the view we have taken for the reason that under Rule 14/16 different procedure is prescribed for disciplinary action which may invite major/ minor penalties respectively as enumerated under Rule 11 of the said rule, while under Rule 19, the said procedure prescribed under Rule l4-21 is totally dispensed with. The very title of Rule 19 speaks of "Special Procedure for Certain Cases". The nature of those certain cases when the said special procedure could be invoked are enumerated and detailed under Clauses (i) (ii) (iii) of the said rule. As could be seen from the language of the said rules, the normal procedure for imposing punishment and penalties are not applicable to the action proposed/taken under Rule 19. In fact, the circumstances enumerated under the said Rule 19 are pari materia and akin to second proviso to Article 311(2) of the Constitution of India. The second proviso to Article 311(2) of the Constitution of India also provides for dispensation of normal procedure prescribed/adopted for holding a detailed enquiry into the matter. As such, we find clear distinction between Rule 14 on one hand and Rule 19 on the other hand. While for disciplinary proceedings initiated under Rule 14 -16 procedure prescribed under the CCS (CCA) Rules is required to be followed which is mandatory in nature though the position is otherwise in cases where Rule 19 is invoked. On the other hand, the said procedure need not be followed at all for initiating action under Rule 19 of the said Rules. Besides this, the only requirement and procedure to be followed under Rule 19 is that the delinquent official would be given a chance for making representation on the penalty proposed before an order is passed under Clause (i) of the said rules. Further, the Government is required to consult Union Public Service Commission, where such consultation is necessary before passing an order under the aforesaid Rule. No rule or law has been brought to our notice, which prohibits, restricts or restrain the authorities from taking action under Rule 19 based on the plea that on earlier occastion for the same incident proceedings were initiated and concluded under Rule 14. The language of Rule 14 as well as 19 read together does not make out such a situation. In our considered view, the language used in the said rules is unambiguous and creates no doubt of any nature whatsoever. There is a consonance of judicial opinion on the basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings are common. The standard of proof required in those proceedings is also different from that required in a criminal case while in departmental proceedings, the standard of poof is the one of preponderance of probabilities. In a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. If the intention of the authorities were to restrict, prohibit or restrain the authorities from taking action under Rule 19 merely because on the same set of facts and incident, a delinquent official was charge- sheeted under Rule 14/16, then there would have been a specific bar provided in the said rules, which is not the position. Rule 19 has to be read over and above Rule 14 for the simple reason that the said Rule 19 begins with non-obstante clause i.e. whatever is prescribed under Rule 14-21 is not applicable while exercising the powers under Rule 19. There is no bar to intiate action under Rule 19 after the conclusion of proceedings intiated under Rules 14-18. Similarly, when a criminal proceedings result into acquittal or exoneration, departmental proceedings could be initiated. As such it cannot be contended that based on the same facts and incident both the proceedings cannot be initiated either simultaneously or after a gap of some period.

In view of the discussion made herein above, we are of the considered view that proceedings or action initiated/taken under Rule 19 is in addition to the departmental proceedings for which procedure is prescribed under Rule 14/16 of the said rule and is not in alternate.

15. Coming to the second question/issue as noticed in paragraph-1 herein above, it is well settled that once a power is made available to an authority under the rules, the Court/ Tribunal cannot restrain the said authority from exercising the said power, particularly, when the source of such power is specifically pointed out. In the present case, the applicant has strenuously contended that no power and jurisdiction has been vested with the authorities to initiate action under Rule 19 of the CCS (CCA) Rules merely because he had been subjected to departmental proceedings on an earlier occasion, based on the same facts. We have already noticed departmental proceedings under Rule 14-18 and the proceedings under Rule 19 are two distinct and separate proceedings and do not overlap each other. It is not the contention of the applicant that the power exercised by the respondents is arbitrary, malafide or illegal for want of fairness or principle of natural justice etc. The specific contention is that the respondents should be restrained from exercising the power under Rule 19, which, in our considered view is bereft of any merits and cannot be accepted. As long as the authorities enjoy power with reference to specific rule, the said authorities cannot be restrained, prohibited in any manner from exercising the said power. Mere vesting of power without permitting them to exercise the said power in the concerned authorities would be of no use. Whenever power is available and is conferred upon specified authorities, they are expected to exercise the said power. What can be examined by the Court/ Tribunal under the power of judicial review is whether the exercise of the said power in the given circumstance was justified or not, which is not the facts of the case in hand. If the statutory/quasi-judicial or administrative authority is restrained from exercising the power available to it with reference to specific provisions of rules or statute, it would create total chaotic situation in administration in as much as there would no authority who could exercise such power conferred upon them. Such an act would also be unreasonable, unwarranted besides deviod of any justification, particularly, in the facts and circumstance of the present case.

In (1995) 1 SCC 501 ,Papnasam Labour Union v. Madura Coats Ltd. and Anr., the constitutional validity of Section 25-M of the Industrial Disputes Act, 1947 was in issue. It was held that where the statute vests power in a specified authority, it can well be presumed that the one to be specified would be a high authority who would be conscious of his duties and obligation and would act promptly and reasonably. In the present case, the rules prescribes and specifies the authority who can act as a Disciplinary Authority and take action under Rule 19, which are sufficiently higher in status and are expected to discharge their duties and obligation with reasonableness.

16. Coining to the last contention raised by the applicant that the exercise of power by the respondents in the present case tantamounts to double jeopardy which is prohibited under the provisions of the Constitution. We may note that Article 20(2) of the Constitution reads as under:

  20(1)          xxx           xxx            xxx
 

"(2) No person shall be prosecuted and punished for the same offence more than once".
 (3)          xxx              xxx                    xxx
 

None of the clauses of Article 20 applies unless there is an 'offence'. Under no circumstance the action taken either under Rule 14 or under Rule 19 consequent upon conviction of the applicant by the Criminal Court would constitute an 'offence'. Since there is no definition of 'offence' in the Constitution, the definition so available under Section 3(37) of the General Clause of Act, which says: "an act or omission made punishable by any law for the time being in force," shall apply. Prosecution in this context thus means an initiation or starting of proceedings of criminal nature alone, which is not the facts of case in hand. In 2003(1) SCC 122, O.P. Dahiya v. Union of India and Ors., the said plea of double jeopardy was raised and negatived. The appellant therein was facing proceedings before a General Security Force Court and since the members and law officer constituted the said Court were prejudiced against him. On an appeal made to the authorities, the said Court was dissolved and a fresh Court was constituted with a direction to hold a fresh trial. That order of fresh trial was challenged before the Court. The Court noticed that the appellant himself had alleged that the trial that was being held was unfair as the law officer and the prosecutor were determined to deny him a fair trial, were endeavoring to get him convicted by unfair means and further neither he was convicted nor acquitted with the charges against him in the first trial. In (2001) 9 SCC 213, State of Punjab v. Dalbir Singh and Ors., a depart- mental enquiry was initiated for the misconduct under the provisions of Motor Vehicles Act for which certain fine had been levied. The question which arose for consideration was whether the levy of penalty under the provisions of Motor Vehicles Act would absolve the employee fully from all liabilities and would it debar the employer from initiating disciplinary proceedings. In other words, whether initiation of departmental proceeding would tantamount to violation of provision contained in Article 20(2) of the Constitution. After consideration, it was held by the Hon'ble Supreme Court that initiation of departmental proceeding by no stretch of imagination can be held to be violation of provision of Article 20 of the Constitution of India. In view of the above discussion we are of the considered view that the contention raised by the applicant about the plea of double jeopardy is misconceived and therefore fails.

17. In the light of the discussions made here in above, we do not find any grounds to interfere with the orders dated 8.10.03 as well as 9.10.03. Consequently O.A. fails. There shall be no order as to costs.