Madhya Pradesh High Court
Komal Diyawar vs State Of Mp on 7 August, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 WP-11614-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 7 th OF AUGUST, 2024
WRIT PETITION No. 11614 of 2021
KOMAL DIYAWAR
Versus
STATE OF MP AND OTHERS
Appearance:
Shri Sanjay Verma - Advocate with Shri Siddharth Shrivastava - Advocate for the
petitioner.
Shri D.R. Vishwakarma - Panel Lawyer for the respondents/State.
ORDER
By the instant petition, the petitioner is challenging the validity of
charge-sheet issued to him levelling the charge relating to an incident
occurred somewhere in the year 2017 at Police Station- Tamiya.
2. Learned counsel for the petitioner submits that the enquiry in respect of
same charge has already been initiated by the authority, in which,
punishment of withholding of one annual increment with non-cumulative
effect has also been inflicted upon the petitioner, then second enquiry for the
same set of charge and same cause of action, is impermissible. He further
submits that for the same charge, another charge-sheet (Annexure-P/1),
which is impugned in this petition has been issued containing a single charge
relating to the same incident which occurred from 31.08.2017 to 02.09.2017.
He submits that if both the charge-sheets are compared, then prima facie, it
can be easily gathered that the charges are same and once enquiry for the
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same incident/charge has been conducted and concluded by inflicting
punishment upon the petitioner, then second enquiry for the same set of
charge cannot be initiated. He relies upon a judgment passed in the case of
Lt. Governor, Delhi & Others Vs. HC Narinder Singh reported in (2004) 13
SCC 342.
3. Learned counsel for the respondents/State opposes the submissions
made by learned counsel for the petitioner and submits that from perusal of
charges levelled in both the charge-sheets, it can be seen that the charges are
different, therefore, enquiry has rightly been initiated against the petitioner
by virtue of subsequent charge-sheet. He further submits that at this stage, it
is not proper for the petitioner to challenge the charge-sheet issued to him.
According to him, this petition is misconceived and based on false and
incorrect facts, therefore, deserves to be dismissed.
4. Considering the submissions advanced by learned counsel for the parties
and on perusal of record, this Court is of the opinion that not only the
incident is same, but all other material produced with the charge-sheet are
also identical; merely because the sequence and selection of words is
different, it cannot be presumed that the charges are different. It is a settled
principle of law that once enquiry has been initiated and concluded, then for
the same set of charges, no second enquiry is permissible.
5. In the case relied upon by learned counsel for the petitioner i.e. HC
Narinder Singh (supra), the Court has observed as under:-
"4. Reading of the show-cause notice suggests as if it is in continuation of the departmental
proceedings. Lack of devotion to duty is mentioned as the reason for the proposed action which
was the subject-matter of the earlier proceedings as well. The second proposed action based on
the same cause of action proposing to deny promotion or reversion is contemplated under the
impugned show-cause notice. Second penalty based on the same cause of action would amount to
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double jeopardy. The Tribunal was, therefore, right in law in annulling such an action. We are not
expressing any opinion on the ambit or scope of any rule."
6. Further, the High Court in the case of Rohini Prasad Pandey Vs. The
State of Madhya Pradesh & Another passed in W.P. No.10032 of 2022,
relying upon the judgment passed by the Supreme Court in the case of HC
Narinder Singh (supra), has laid-down the same principle observing as
under:-
"10. On a specific query from the Bench, learned Government Advocate fairly admitted that the
impugned charge-sheet dated 04/04/2022 (Annexure P/9) is based on the same misconduct for
which charge-sheet dated 03/04/2012 was issued, which ended with imposition of punishment
dated 27/05/2017. Thus, pivotal question is whether petitioner can be subjected to another
disciplinary proceeding for the same misconduct. The answer is a big 'NO'. It was open to the
department to impose the punishment of recovery in the first disciplinary proceeding itself. The
disciplinary proceeding cannot be permitted to be held in succession for the same misconduct.
Putting it differently, it was open to the 3 department to recover the amount of loss by imposing
the punishment of recovery in the first disciplinary proceeding itself. Inquiry and charge-sheet for
same misconduct cannot be permitted to be issued in easy installments. For this reason, in
W.P.No.3402 of 2020 the recovery was interfered with by the coordinate Bench.
11. It is profitable to refer the judgment of Apex Court in (2004) 13 SCC 342 Lt. Governor, Delhi
and others vs. HC Narinder Singh , wherein it was held that :-
"4. Reading of the show-cause notice suggests as if it is in continuation of the
departmental proceedings. Lack of devotion to duty is mentioned as the reason for the
proposed action which was the subject-matter of the earlier proceedings as well. The
second proposed action based on the same cause of action proposing to deny promotion or
reversion is contemplated under the impugned show-cause notice. Second penalty based
on the same cause of action would amount to double jeopardy. The Tribunal was,
therefore, right in law in annulling such an action. We are not expressing any opinion on
the ambit or scope of any rule."
(Emphasis supplied)
12. Ratio decidendi of above judgment was followed in (2006) 12 SCC 28 Union of India and
another vs. Kunisetty Satyanarayana by holding thus :-
"18. We agree with the learned counsel for the respondent that if the charge which has
been levelled under the memo dated 23-12-2003 had earlier been enquired into in a regular
enquiry by a competent authority, and if the respondent had been exonerated on that very
charge, a second enquiry would not be maintainable."
13. In nutshell, in the opinion of this Court, it was no more open to the 4 SUJOY PAUL) JUDGE
department to issue another charge-sheet dated 04/04/2022 for the same misconduct for which
petitioner has been punished. This, certainly amounts to double jeopardy as per Article 20 (2) of
the Constitution.
14. Thus, impugned charge-sheet dated 04/04/2022 is illegal and impermissible and deserves to
jettisoned. The charge-sheet is accordingly set aside .
15. The Writ Petition is allowed."
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7. Also, this Court in the case of S. D. Richharia Vs. State of Madhya
Pradesh passed in W.P. No.20492 of 2020 , relying upon the order passed in
the case of Rohini Prasad Pandey (supra), has observed as under:-
"15. Thus, in view of the aforesaid, I am of the opinion that once disciplinary action was initiated
alleging misconduct against the petitioner giving details of facts and illegality committed by him
and after submitting reply to the said notice, the authority being satisfied with the same passed an
order holding that no misconduct was committed by the petitioner and that order was never
challenged by the authority further in any of the proceedings, the said order had attained finality
and, therefore, second charge-sheet and initiation of disciplinary proceeding on the same set of
charges that too after a period of four years and at the verge of retirement of the petitioner cannot
be said to be proper and it is otherwise contrary to law and apparently illegal action on the part of
the authority".
8. In view of the aforesaid enunciation of law, this Court is of the opinion
that the impugned charge-sheet dated 15.05.2020 (Annexure-P/1) contains
the same charge, enquiry in respect of which, has already been initiated and
concluded by the authority, therefore, further proceedings by issuing second
charge-sheet arising out of the same cause of action, cannot be permitted to
be continued. Accordingly, the impugned charge-sheet dated 15.05.2020
(Annexure-P/1) and also the impugned order dated 08.06.2021 (Annexure-
P/2) are set-aside.
9. Resultantly, the petition stands allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
Prachi
