Govt. Of Nct Of Delhi & Ors. vs Santosh Devi
2010 Latest Caselaw 2460 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                   WP (C) No. 3117 of 2008 & CM 5995/2008


%                                              Date of Decision: 07th May, 2010

GOVT. OF NCT OF DELHI & ORS.                                   ...
PETITIONER
                   Through :                   Ms. Jyoti Singh, Advocate


                                     VERSUS

SANTOSH DEVI                                                 . . .RESPONDENT

                             Through:          Mr. M.P. Raju, Advocate

CORAM :-

       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MR. JUSTICE J.R. MIDHA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (Oral)

1. This petition is preferred against the order dated 15 th February, 2008

passed by the Central Administrative Tribunal in O.A. 356/2007. Vide this order,

O.A. preferred by the respondent herein was allowed and the orders dated 11th

November, 2003 and 30th January, 2004 passed by the Disciplinary Authority

and the Appellate Authority respectively were quashed. At the same time, the

Tribunal restored the orders dated 5th October, 1999 and 3rd March, 2000 passed

by Disciplinary Authority as well as Appellate Authority respectively. On an

earlier occasion punishment of withholding one increment for a period of one years

was awarded to the respondent as a result of a Departmental Enquiry conducted

against him. The background under which two sets of orders came to be passed

against the respondent herein may be capitulated. On a complaint made by one

Ashok Mittal and his wife against Constable Chander Bhan and Constable

Mohinder Singh (husband of the respondent herein), a Departmental Enquiry was

initiated. After the conclusion of this Departmental Enquiry, orders of removal

were passed against Constable Chander Bhan and the husband of the respondent

namely Constable Mohinder Singh. Both of them challenged those orders by

filing applications under Section 19 of the Administrative Tribunal Act. The

Central Administrative Tribunal set aside the orders of removal passed against

them and remanded the matter back to the Government of NCT of Delhi

(petitioner herein) for reconsideration. The Government had preferred Special

Leave Petition against the said order of Tribunal which was, however, rejected. In

these circumstances, the petitioner held fresh proceedings against both the

Constables namely Chander Bhan as well husband of the respondent Mohinder

Singh. They were again found guilty of the charge levelled against them.

However, this time the punishment awarded was totally different namely

punishment of stoppage of one increment for a period of one year.

2. In so far as Mohinder Singh, husband of the respondent is concerned, he

accepted the said punishment and preferred to not to challenge the operational

orders. However, Chander Bhan, on the other hand, challenged the orders passed

against him by preferring appeal. The Tribunal again directed de-novo enquiry.

On the basis of said order, de-novo enquiry was held against Constable Chander

Bhan.

3. Though, in so far as punishment awarded to Constable Mohinder Singh is

concerned, matter had been given quietus in as much as Constable Mohinder

Singh had accepted the punishment as stated above, the Department while

holding de-novo enquiry against Constable Chander Bhan pursuant to the

directions of the Tribunal started de-novo enquiry against Constable Mohinder

Singh as well. There appears to be no reason as to why such an enquiry against

Mohinder Singh could have been initiated. In these circumstances, though,

Constable Mohinder Singh participated in the enquiry, he took an objection about

the maintainability of such Departmental proceedings.

4. Be as it may, enquiry proceeded against both Constables Chander Bhan

and Mohinder Singh. After the enquiry, order of dismissal was passed against

both of them. Constable Chander Bhan approached the Tribunal once again

challenging the order of dismissal. This order was again set aside and the matter

was remanded back to the Disciplinary Authority who passed fresh orders

thereby reducing the quantum of punishment awarded to Chander Bhan from

dismissal to that forfeiture of nine years of service.

5. In the meantime, Constable Mohinder Singh had passed away after the

imposition of the punishment. Under these circumstances, it is the respondent

herein namely Smt. Santosh Devi, the widow of Constable Mohinder Singh who

preferred O.A. before the Tribunal challenging the conduct of de-novo enquiry

against Constable Mohinder Singh on the ground that this was an enquiry

without jurisdiction as there was already an enquiry held against him which had

been taken to its logical conclusion and the punishment of stoppage of an

increment for a period of one year was also accepted by him. This plea of the

respondent herein has been accepted by the Tribunal and under these

circumstances the orders dated 11th November, 2003 inflicting the punishment of

dismissal from service by the Disciplinary Authority and orders dated 30th

January, 2004 of the Appellate Authority affirming the punishment, have been set

aside and original orders dated 5th October, 1999 and 3rd March, 2000 respectively

passed by these two authorities whereby the punishment of withholding of one

increment for a period of one year was imposed, have been restored.

6. Ms. Jyoti Singh, learned counsel appearing for the petitioner argues that

when de-novo enquiry was held against Chander Bhan and Mohinder Singh, albeit

on the directions given by the Tribunal in the case of Chander Bhan, Mohinder

Singh also participated in the enquiry without any protest and thereby acquiesced

into that action of conducting de-novo enquiry against him. Though it is disputed

by the learned counsel for the respondent and he submits that his participation was

without prejudice to his contention regarding admissibility of such an enquiry. We

are of the opinion that even if no objection was taken, it cannot be held against

Mohinder Singh. When the entire proceedings are without jurisdiction and could

not be held as it amounted to double jeopardy inasmuch as Mohidner Singh has

already been punished in the same enquiry, such an act on the part of the

petitioner was clearly against the law. The principle of estoppel was a

acquiescence or even waiver in such circumstances would not apply. An act which

is without jurisdiction and void would remained so whether an objection was taken

at that stage or not.

7. In this writ petition preferred by the Government, the only challenge

which is pressed is that while setting aside the dismissal order, the Tribunal

could have equated the case of Mohinder Singh with that of Chander Bhan and,

therefore, should have maintained the punishment of forfeiture of nine years of

service, as done in the case of Chander Bhan instead of stoppage of one

increment for a period of one year. This plea cannot be accepted at all. It is stated

at the cost of repetition that in so far as Mohinder Singh, husband of the

respondent is concerned, he had accepted the penalty of stoppage of one increment.

He did not even preferred departmental appeal against the said order. Merely

because another co-delinquent namely Chander Bhan had challenged that order by

filing O.A. before the Tribunal in which he succeeded and as a result thereof a

fresh enquiry was ordered against Chander Bhan, there was no reason to hold de-

novo enquiry against Mohinder Singh as well.

8. Insofar as Chander Bhan is concerned, de-novo enquiry was the result of

directions given by the Tribunal which were limited to Chander Bhan only and

could not have been extended to Mohinder Singh. Holding of such de-novo

enquiry would clearly a double jeopardy and would not be permissible under the

law. Such an action of the department was clearly without jurisdiction.

Moreover, in the case of Mohinder Singh, there is no order of forfeiture of nine

years of service as passed in the case of Chander Bhan. The earlier punishment

orders passed against him was limited to the stoppage of one increment for a

period of one year. Therefore, it is not open to the petitioner to argue that while

setting aside the order passed against Mohinder Singh, non-existing order of

forfeiture of nine years of service should have been passed against Mohinder

Singh as well. We thus did not find any merit in the present writ petition and

accordingly dismissed the same.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE May 07, 2010.

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