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PETITIONER: STATE OF ASSAM & ANR.

       Vs.

RESPONDENT: J. N. ROY BISWAS

DATE OF JUDGMENT06/10/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1975 AIR 2277            1976 SCR  (2) 128  1976 SCC  (1) 234  CITATOR INFO :  R          1976 SC2037  (7)  D          1979 SC1923  (3)  D          1985 SC1461  (5)

ACT:      Service-Government servant  exonerated and  reoinstated after enquiry- Reopening of enquiry If competent.

HEADNOTE:      The respondent,  a Government  servant,  was  suspended from service  in 1960.  on receipt  of the  findings of  the Inquiry  officer,  a  show  cause  notice  was  issued.  The appointing authority  exonerated the  respondent but did not make  a   reasoned  order.  Later,  however,  the  case  WAS reopened. As  the de  novo recording  of evidence progressed the respondent  moved the  High Court  contending that there was no  power in  the Government to re-open a case which had already been  concluded by  exoneration and  re-instatement. The High Court granted the relief .      Dismissing the appeal of the sate, ^      HELD..  Had   the  Government  servant  misappropriated government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him  by re-opening  the proceedings  only  if  the  rules vested some  such revisory  power No rule of double jeopardy bars the reopening of the case. But once a disciplinary case has closed  and  the  official  re-instated  the  government cannot restart the exercise in the absence of specific power to review  or revise  vested by rules in some authority. The basics of the rule of law cannot be breached without a legal provision or  other vitiating  factor  invalidating  earlier enquiry.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 899 of 1968.      Appeal by  special leave  from the  judgment and  order dated the 15th February, 1967 of the Assam and Nagaland High Court in C. Rule No. 231 of 1965.

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    Naunit Lal, for the appellants.      Sukumar Ghose, for the respondent.      The Judgment of the Court was delivered by      KRISHNA  IYER,  J.-Was  this  virtually  valstudinarian appeal by  the Sate  against an  old and  perhaps,  by  now, superannuated emyloyee  necessary? Litigation  by the  State means laying  out public  resources, in  a country  of  much poverty and  scarce resources,  and only  if  the  demanding justice of  a case  calls for it should an appeal, otherwise of inconsequence,  be carried  to the  highest Court. In the present instance,  a veterinary  assistant,  the  respondent herein, was  suspended  in  1960  followed  by  disciplinary proceedings. An  enquiry officer,  appointed by the Director of Animal Husbandry and Veterinary Department, conducted the proceedings, submitted his report of findings adverse to the respondent, whereupon  a show  cause notice  indicating  the penalty of  dismissal was  issued. The  ’delinquent’ pleaded innocence by  his explanatory statement and the Director, on a study of the case in the light of the explanation offered, directed reinstatement in a cryptic order which runs thus: 129                 ORDER No. 81 DATED 11-12-62           Shri J.  N. Roy  Biswas, Manager,  East  Harinagar      Live  stock   Farm  (Cachar)   who  was   placed  under      suspension vide  this office  order No. 42 dated 23-12-      60, is re-instated in the same post of Manager, at East      Harinagar Livestock  Farm with effect from the date the      reports for duty.                                            Sd/- G. K. Mehra,                         Director of Animal Husbandry & Vety.                                 Department, Assam, Gauhati."           Memo No. PI-918/26822 Dated Gauhati, the 13th Dec.      ’62. Copy forwarded to:-           1. Shri  J. N. Roy Biswas, Manager, East Harinagar      Livestock  Farm   (under  suspension)  C/o  Brahmachari      Maharaj  Shri  Dawarikanath,  Ramkrishna  Seva  Samity,      Chatribari,  Gauhati,  for  information  and  necessary      action. The  findings and orders of the proceeding will      follow.           2 , . . . . .           3           The  findings   and  orders   together  with   the      regularisation of  the period  of suspension of Shri J.      N. Roy  Biswas with  effect from  5-1-61 to the date of      his reporting for duty at East Harinagar Livestock Farm      will be communicated separately. The date of joining of      Shri Biswas may be in formed to this office separately.                                               Sd/- B. K. Das                           for Director of Animal Hy. & Vety.      lt  is   noteworthy  that  no  reasoned  findings  were recorded. That  particular officer retired and his successor wrote to  the Joint  Secretary to  Government that  from the materials of  the case the ’delinquent’ r merited punishment and the  proceedings be re-opened. This was done  and as the de novo  recording of  evidence  progressed  the  respondent moved  the   High  Court  under  Art.  226  for  a  writ  of prohibition as, in his submission, there was no power to re- open a  case concluded  by exoneration and reinstatement and the illegal vexation of a second enquiry should be arrested. This grievance was held good by the High Court which granted the relief sought.      What is  the conspectus  of  circumstances  ?  A  small veterinary official, a long enquiry for mis-conduct, a final direction cancelling  suspension and  reinstating  him,  the likelihood of the man having retired (15 years have gone by)

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and nothing on record to substantiate any fatal infirmity in the  earlier   enquiry  or   dereliction  of   duty  by  the disciplinary authority  except that  a  reasoned  record  of findings was  to be forthcoming, but did not, because he had retired in  the mean   while.  No action against the retired Director for  this alleged  omission was  felt justified and perhaps was not warranted but with persistent 130 litigative zeal  Government has come in appeal to this Court against  the   petty  official.   Had   he   misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him  by re-opening  the proceedings  only  if  the  rules vested some such revisory power. None such has been shown to exist although  one  wonders  why  a  rule  vesting  such  a residuary power  of a  supervisory nature to be exercised in the event  . of  a subordinate  disciplinary  authority  not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy  bars but  absence of  power  under  a  rule inhibits a  second inquiry  by  the  Disciplinary  authority after the delinquent had once been absolved. The appeal must fail and is dismissed with costs.      We may however make it clear that no government servant can urge  that if  for some  technical or other good ground, procedural or  other, the  first enquiry  or  punishment  or exoneration is found bad in law that a second enquiry cannot be launched.  It can  be; but  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  ill some  authority. The basics of the rule  of law  cannot be breached without legal provision or other  vitiating factor invalidating the earlier enquiry. For the  present, this is theoretical because no such deadly defect is apparent on the record. P.B.R.                                 Appeal dismissed. 131