*Takes serious note of double punishment
Excelsior Correspondent
JAMMU, Oct 31: High Court has quashed the dismissal of a cop after 13 years for the reason that order was passed in contravention of the provisions of Clause (2) of Article 20 of the Constitution of India as petitioner has been punished for the same offence twice which falls within the realm of double jeopardy.
The impugned order dated June 15, 2009 was challenged by petitioner Mohammad Amin Wani, a constable of CRPF, on the ground that the same is in gross violation of the petitioner’s constitutional and statutory rights and is therefore, illegal, unwarranted, irrational and has led to grave miscarriage of justice.
“The respondent was obliged to obey and uphold the mandate of Rule 29(d) of CRPF Rules, 1999 in letter and spirit. There was no proof against the petitioner, also, no witness deposed against him. Therefore, the punishment should not have been enhanced from confinement to Quarter Guard for 28 days without pay and allowances to dismissal from service”, the counsel for the petitioner submitted before the High Court.
After hearing both the sides, Justice Wasim Sadiq Nargal observed, “it is a rarest of rare case where on the basis of the enquiry report and based on circumstantial evidence, the petitioner was found guilty of indirect involvement in the incident and as a consequence of which the disciplinary authority has imposed punishment of 28 days confinement in Quarter Guard which the petitioner had underwent being a subordinate officer and did not chose to file any appeal”.
“After having undergone the punishment for the alleged offence which was attributable to the petitioner, the concerned DIG without conducting any further enquiry or basis or following the principle of natural justice enhanced the punishment from 28 days to dismissal from service by resorting to the provisions of Rule 29 (d) of CRPF Rules”, Justice Nargal further observed.
High Court said, “the petitioner by no stretch of imagination could be imposed the punishment of dismissal, more particularly, when he has already undergone the punishment of 28 days confinement in Quarter Guard and imposing the punishment of dismissal for the same offence would tantamount to double jeopardy”.
“The order impugned dated 15th June 2009 is illegal and arbitrary because the same has been passed ignoring the provisions of Section 11(1) of CRPF Act as the petitioner has been charge sheeted under these provisions and the disciplinary proceedings were initiated against him by resorting to the provisions which provides for minor penalty, but the respondent in flagrant violation of provision has imposed a major punishment of dismissal from service which is not sustainable in the eyes of law”, High Court further said.
Even though, the power to suo-moto revise the punishment including enhancement has to be considered by the Inspector General or DIG in terms of Rule 29(d), however, such power by no stretch of imagination can be allowed to be exercised in an arbitrary manner as has been done in the present case, Justice Nargal said.
With these observations, Justice Nargal quashed/set-aside the impugned order for the reasons that the same has been passed in contravention of the provisions of Clause (2) of Article 20 of the Constitution of India as the petitioner has been punished for the same offence twice which falls within the realm of double jeopardy.
The respondents have been directed to reinstate the petitioner and allow him to join the duties. Further, they have been asked to release the withheld wages/salary of the petitioner for the period he remained out of service owing to the impugned order dated 15th June 2009, if he is not gainfully employed, elsewhere.
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