# Vinod Kumar Katheria v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-19
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-katheria-v-state-of-u-p-ors-43518
- **Pages:** 7

## Headnote

CONSTITUTION OF INDIA-Arts. 226, 227, 20(2)

Departmental proceedings- the constitutional protection against double jeopardy contained in
Article 20(2) of the Constitution of India applies only to criminal prosecution and punishment before a
court of law or judicial tribunal and has no application to departmental or disciplinary proceedings,
even if such proceedings are punitive in nature.

Double jeopardy- once the earlier punishment was awarded on the basis of distinct and separate
charges, initiation of subsequent disciplinary proceedings on different and more serious charges does
not amount to double jeopardy.

Punishment earlier awarded- where the subsequent charge-sheet contains serious allegations of
misconduct, including fraudulent mutation of Gram Samaj land in favour of the delinquent employee's
wife and mother-in-law, issuance of false certificates, manipulation of revenue records, financial fraud
3 All. Vinod Kumar Katheria Vs State Of U.P. & Ors.
181
 and unauthorized retention of official records, the penalty of dismissal from service cannot be said to
be impermissible or illegal.

Scope of judicial review.- in exercise of jurisdiction under Articles 226 and 227 of the Constitution
of India, the High Court cannot reappreciate evidence or interfere with the findings of the disciplinary
authority and appellate authorities, nor can it interfere with the quantum of punishment unless the
punishment shocks the conscience of the Court.

Dismissal from service-even a single grave charge involving lack of integrity and misuse of official
position is sufficient to warrant dismissal from service.

Disproportionate punishment -the punishment of dismissal from service imposed after a fullfledged departmental inquiry, following due opportunity of hearing and affirmed by appellate and
revisional authorities, does not suffer from illegality or disproportionality.

Writ petition dismissed.

List of Cases cited:

## Text

180 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The matter is, therefore, relegated to the lower Appellate Court to decide this issue
afresh after providing due opportunity to both the parties to lead their evidences. For the said
purpose, one month time is provided to both the parties. The petitioner and 19 respondent
No.3 shall file their evidence before the Courts below within the aforesaid period and the
Appellate Court shall decide this limited issue remitted to it expeditiously preferably within
a period of three months from the date of submission of a certified copy of this order.

45. At the cost of repetition, it is held that the findings recorded by the Courts below on
all other questions of need and hardship of the parties have been affirmed. The matter is
remitted to the Lower Appellate Court on the limited issue of occupation and availability of
Shop "P" to the landlord for the need set up by him to establish his son in business.

46. With the above observations and directions, the writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A No. - 38583 of 2011

Vinod Kumar Katheria ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Ashok Khare, H.M. Srivastava, Neeraj Srivastava

Counsel for the Respondents:
C.S.C.

CONSTITUTION OF INDIA-Arts. 226, 227, 20(2)

Departmental proceedings- the constitutional protection against double jeopardy contained in
Article 20(2) of the Constitution of India applies only to criminal prosecution and punishment before a
court of law or judicial tribunal and has no application to departmental or disciplinary proceedings,
even if such proceedings are punitive in nature.

Double jeopardy- once the earlier punishment was awarded on the basis of distinct and separate
charges, initiation of subsequent disciplinary proceedings on different and more serious charges does
not amount to double jeopardy.

Punishment earlier awarded- where the subsequent charge-sheet contains serious allegations of
misconduct, including fraudulent mutation of Gram Samaj land in favour of the delinquent employee's
wife and mother-in-law, issuance of false certificates, manipulation of revenue records, financial fraud
3 All. Vinod Kumar Katheria Vs State Of U.P. & Ors.
181
 and unauthorized retention of official records, the penalty of dismissal from service cannot be said to
be impermissible or illegal.

Scope of judicial review.- in exercise of jurisdiction under Articles 226 and 227 of the Constitution
of India, the High Court cannot reappreciate evidence or interfere with the findings of the disciplinary
authority and appellate authorities, nor can it interfere with the quantum of punishment unless the
punishment shocks the conscience of the Court.

Dismissal from service-even a single grave charge involving lack of integrity and misuse of official
position is sufficient to warrant dismissal from service.

Disproportionate punishment -the punishment of dismissal from service imposed after a fullfledged departmental inquiry, following due opportunity of hearing and affirmed by appellate and
revisional authorities, does not suffer from illegality or disproportionality.

Writ petition dismissed.

List of Cases cited:

1. Union of India v. Purshottam, (2015) 3 SCC 779;
2. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325;
3. Union of India v. P. Gunasekaran, (2015) 2 SCC 610;
4. B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749;
5. Union of India v. G. Ganayutham, (1997) 7 SCC 463;
6. Om Kumar v. Union of India, (2001) 2 SCC 386;
7. Coimbatore District Central Cooperative Bank v. Employees Association, (2007) 4 SCC 669;
8. Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the petitioner as well as learned Standing Counsel and
perused the record. Pleadings have been exchanged between the parties and with their
consent, the present petition is being disposed of at this stage itself.

2. The petitioner, who was working as Lekhpal in District- Mahawatpur, has come up
challenging the order of termination dated 7.2.2009 passed by the Deputy District
Magistrate, Karhal, Mainpuri, appellate order of dismissal from service dated 15.1.2010
passed by the District Magistrate, Karhal, Mainpuri and the revisional order dated 20.6.2011
passed by the State Government affirming the order of punishment.

3. Submission of learned counsel for the petitioner is two folds; one, that the order of
punishment amounts to double jeopardy as the petitioner had already been awarded
punishment for his misconduct by which he was reverted back to basic pay-scale and was
awarded censure entry and second, in any case, the punishment awarded is disproporationate
Neutral Citation No. - 2016:AHC:35204 2 to the charges levelled against the petitioner.

4. Vide order dated 31.3.2005, while the petitioner was working as Lekhpal Circle
Mahawatpur, Tehsil Bhogaon was issued chargesheet and ultimately after conducting
182 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry proceedings, he was reinstated in service reverting him back to basic pay-scale with
censure entry. Subsequently, petitioner was given chargesheet dated 1.7.2008 whereby
seven specific charges were levelled against him and he was granted time to submit reply.
After fullfledged inquiry proceedings were conducted, the Inquiry Officer filed a detailed
inquiry report dated 9.12.2008. Subsequently, the petitioner was issued a show cause notice
dated 17th December, 2008 to which he submitted his reply. After considering the reply of
the petitioner, the inquiry report and the evidence on record, the appointing authority,
Deputy District Magistrate (SDM), Karhal, District Mainpuri dismissed him from service
vide order dated 7.2.2009, which was affirmed by appellate and revisional authorities as
already noted.

5. Learned counsel for the petitioner has submitted that once the petitioner had already
been punished by reverting back to the petitioner to a minimum pay-scale and by awarding
censure entry. It is a case of double jeopardy as he has already been awarded punishment.

6. Insofar as first submission of learned counsel for the petitioner about double
jeopardy is concerned suffice to say in a recent judgment of Hon'ble Apex Court rendered in
Union of India vs. 3 Purshottamm, (2015) 3 SCC 779, it has been held that principle of
double jeopardy is not attracted in the case of departmental proceedings. Paragraph 13 of the
aforesaid judgment is quoted as under:-

""12 .The US Supreme Court has extensively excogitated over the conundrum as to
what constitutes a successive "punishment" for the purposes of attracting
Constitutional protection against Double Jeopardy, under the 5th Amendment. The
Court, in John Hudson v United States, 522 U.S. 93 (1997), affirmed the distinction
between civil punishment and proceedings and criminal punishment and prosecution,
and held that the Fifth Amendment proscribes two (or more) successive punishments or
prosecutions of a criminal nature only, and permits civil punishment or proceedings
either preceding or succeeding a criminal prosecution or punishment. In the case
before the U.S. Supreme Court, John Hudson was the Chairman of the First National
Bank of Tipton and the First National Bank of Hammon, and used his position to regain
bank stock he had used as collateral on defaulted loans through a series of bank loans
to other parties. Upon investigation the Office of the Comptroller of Currency (OCC)
found that the loans were made in violation of several banking statues and regulations.
The OCC fined and debarred Hudson for the violations. Later, he faced criminal
indictment in the Federal District Court for violations tied to those same events.
Hudson objected, arguing that the indictment violated the Double Jeopardy clause of
the 5th Amendment. Overruling United States v. Halper, 490 U.S. 436 (1989), wherein
the Court had ruled as unconstitutional successive proceedings taking place in similar
circumstances to Hudson's case, the Court in Hudson reaffirmed the distinction
established between the "civil" and "criminal" nature of the particular successive
punishment, in United States v. Ward, 448 U.S. 242 (1980). The U.S. Supreme Court
thus held in Hudson's case that the Double Jeopardy clause did not preclude his
subsequent criminal prosecution, because the OCC administrative proceedings were
civil, not criminal. Inter alia, the civil nature of the punishment was ascertained with
3 All. Vinod Kumar Katheria Vs State Of U.P. & Ors.
183
reference to the money penalties statutes' express designation of their sanctions as
"civil". This reference indubitably eases the resolution of the Double Jeopardy question
in the present Appeal. As has been detailed earlier, Article 20(2) does not within it 4
imbibe the principle of autrefois acquit. The Fifth Amendment safeguards, inasmuch as
it postulates both autrefois acquit and autrefois convict, could have been interpreted to
prohibit civil punishment even in the wake of an acquittal in prosecution, but was not
found by the U.S. Supreme Court to do so. A fortiori Article 20(2), which contemplates
"prosecuted and punished" thus evincing the conscious exclusion of autrefois acquit,
palpably postulates that the prescribed successive punishment must be of a criminal
character. It irresistibly follows that departmental or disciplinary proceedings, even if
punitive in amplitude, would not be outlawed by Article 20(2)."
(Emphasis supplied)

7. A reference may also be made to judgment of Hon'ble Apex Court in the case of
Maqbool Hussain vs. State of Bombay AIR 1953 SC 325. Paragraph Nos. 11 and 12
whereof are quoted as under:-

 "(11) These were the materials which formed the background of the guarantee of
fundamental right given in Art. 20 (2). It incorporated within its scope the plea of
"autrefois convict"as known to the British jurisprudence or the plea of double jeopardy
as known to the American Constitution but circumscribed it by providing that there
should be not only a prosecution but also a punishment in the first instance in order to
operate as a bar to a second prosecution and punishment for the same offence.

(12) The words "before a Court of law or judicial tribunal" are not to be found in
Article 20 (2). But if regard be had to the whole background indicated above it is clear
that in order that the protection of Art. 20 (2) be invoked by a citizen there must have
been a prosecution and punishment in respect of the same offence before a Court of law
or a tribunal, required by law to decide the matters in controversy judicially on
evidence on oath which it must be authorized by law to administer and not before a
tribunal which entertains a departmental or an administrative enquiry even though set
up by a statute but not required to proceed on legal evidence given on oath. The very
wording of Art. 20 and the words used there:- "convicted", "commission of the act
charged as an offence," "be subjected to a penalty", "commission of the offence",
"prosecuted and punished", "accused of any offence", would indicate that the
proceedings therein contemplated are of the nature of criminal proceedings before a
Court of law or a judicial tribunal and the prosecution in this context would mean an
initiation or starting of proceedings of a criminal nature before a Court of law or a
judicial tribunal in accordance with the procedure prescribed in the statute which
creates the offence and regulates the procedure."

8. As such, first contention of learned counsel for the petitioner regarding double
jeopardy is liable to be rejected.
184 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Even otherwise, nature of charges levelled against the petitioner assumes importance
to find out as to whether the peitioner was again subjected to punishment for the same
charges. Although the chargesheet dated 6th November, 2004 issued to the petitioner is not
on record, however a perusal of order dated 31.3.2005 indicates that the Charge Nos. 1, 3
and 4 levelled against the petitioner were regarding disobedience of the orders of the higher
authorities. Charge Nos. 2 and 5 were also to the same effect. Charge No. 6 is to the effect
that the petitioner is not residing in his area and he is living at a different place. Holding
charges against the petitioner fully proved, he was reverted back to the basic pay-scale and a
censure entry was awarded to the petitioner.

10. Perusal of the chargesheet dated 1.7.2008 indicates the same is in regard to the
illegalities committed by the petitioner during 30.8.1998 to December, 2006 and December,
2006 to 31.7.2007. Specific charges, which are serious in nature, have been levelled against
the petitioner. Charge Nos. 1, 2, 4 and 5 are to the effect that he had issued false certificate
and have made false entries in the revenue record in the name of various persons. Charge
No. 3 is to the effect that the land recorded in the name of Gram Samaj was illegally
mutated in the name of his wife Smt. Rekha Devi and his mother-in-law, Smt. Anita Devi as
transferable tenure holder. Charge No. 6 is to the effect that he had issued a cheque of Rs.
90,000/- in favour of one Siya Ram Baghel towards purchase of building material for
construction of school building in the name of his wife, Smt. Rekha (known as Dayal
Memoria School), which was dishonoured and thus had played fraud with Siya Ram and had
threatened Siya Ram and his son Laxmi Chand that he will lodge prosecution under SC/ST
Act. Charge No. 7 is that in spite of transfer order dated 31.7.2007, he did not hand over
charge of Circle Sansarpur and absconding with official records for which a First
Information Report was also lodged. Undisputedly, a fullfledged enquiry was conducted in
which opportunity of hearing was granted to the petitioner.

11. In view of the fact, charges levelled against the petitioner were different in the
chargesheet dated 6th November, 2004, which ultimately led to order dated 31.3.2005
whereby petitioner was reverted back to pay-scale and a censure entry. Apart from this,
charges levelled against the petitioner by chargesheet dated 1.7.2008 are of very serious in
nature and even one charge, specifically Charge No. 3 itself is sufficient for his dismissal
from service.

12. As such, first contention of learned counsel for 7 the petitioner is liable to be
rejected on merits also in view of the above noted discussion.

13. Insofar as, second submission that the order of punishment from dismissing the
petitioner from service is disproportionate in nature, suffice to say that the charges levelled
against the petitioner were of serious in nature. As already noticed, Charge No. 3 levelled
against the petitioner was to the effect that he had mutated names of his wife and his
mother-in-law as transferable tenure holderby deleting the name of Gram Samaj in revenue
record, which was found to be proved, alone is sufficient to attract dismissal from service.
3 All. Vinod Kumar Katheria Vs State Of U.P. & Ors.
185
14. In such view of the matter, I do not find that punishment awarded to the petitioner
is disproportionate in nature.

15. Reference may be made in this regard to a judgment rendered by the Hon'ble
Apex Court in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610.
Paragraphs 19, 20 and 21 of the judgment in the case of P. Gunasekaran supra are quoted
as under:

"19. The disciplinary authority, on scanning the inquiry report and having accepted
it, after discussing the available and admissible evidence on the charge, and the
Central Administrative Tribunal having endorsed the view of the disciplinary
authority, it was not at all open to the High Court to reappreciate the evidence in
exercise of its jurisdiction under Articles 226/227 of the Constitution of India.

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under
Article 226/227 of the Constitution of India, to go into the proportionality of
punishment so long as the punishment does not shock the conscience of the court. In
the instant case, the disciplinary authority has come to the conclusion that the
respondent 8 lacked integrity. No doubt, there are no measurable standards as to
what is integrity in service jurisprudence but certainly there are indicators for such
assessment. Integrity according to Oxford dictionary is "moral uprightness;
honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity,
blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness,
goodness, cleanness, decency, honour, reputation, nobility, irreproachability,
purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling
character with firm adherence to a code of moral values.

21. The impugned conduct of the respondent working as Deputy Office
Superintendent in a sensitive department of Central Excise, according to the
disciplinary authority, reflected lack of integrity warranting discontinuance in
service. That view has been endorsed by the Central Administrative Tribunal also.
Thereafter, it is not open to the High Court to go into the proportionality of
punishment or substitute the same with a lesser or different punishment. These
aspects have been discussed at quite length by this Court in several decisions
including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union
of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others
v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative
Bank v. Coimbatore District Central Cooperative Bank Employees Association and
another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar
Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai
Metropolitan Water Supply (supra)."

16. As such, for the discussion noted hereinabove, petition lacks merits and is,
accordingly, dismissed.
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186 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 7.12.2015

BEFORE

THE HON'BLE RAN VIJAI SINGH, J.

Writ A No. - 61445 of 2015

Mohit Kumar Goyal ...Petitioner
Versus
State Of U.P. & Ors ...Respondents

Counsel for the Petitioner:
Manoj Kumar Singh

Counsel for the Respondents:
C.S.C.

MOTOR VEHICLES ACT, 1988-Ss. 69(2), 80(2) proviso, 89(1)(g)

Inter-State stage carriage permit- an application for inter-State permit made under Section 69(2)
of the Motor Vehicles Act is governed by the procedural safeguards contained in Section 80 of the Act,
and refusal to grant such permit must necessarily be supported by recorded reasons and preceded by
affording an opportunity of hearing to the applicant.

Refusal to grant permit- refusal of a permit without disclosing reasons and without granting
opportunity of hearing results in violation of the principles of natural justice and leads to serious civil
consequences, particularly where the livelihood of the applicant is affected.

Absence of inter-State agreement- mere reference to alleged pronouncements of the Supreme
Court or High Courts, without citing or disclosing the decisions relied upon, cannot constitute a valid
reason for refusal of an inter-State permit.

Violation of fundamental rights-Right to privacy and free movement.- police surveillance
and maintenance of a history-sheet directly infringes the fundamental rights guaranteed under Articles
19(1)(a), 19(1)(d) and 21 of the Constitution of India. Freedom of movement under Article 19(1)(d)
means free movement in its real sense and not mere physical locomotion under constant police watch.

Opportunity of hearing-an appeal against an order refusing grant of permit is maintainable under
Section 89(1)(g) of the Act, being an order not covered under clauses (a) to (f) thereof, and dismissal
of such appeal as not maintainable amounts to failure to exercise jurisdiction vested in the appellate
authority.

Appeal-Maintainability-Failure to exercise jurisdiction -both the order of the State Transport
Authority refusing grant of inter-State permit and the order of the State Transport Appellate Tribunal
dismissing the appeal as not maintainable being arbitrary, unreasonable and violative of principles of
natural justice, are unsustainable in law and liable to be quashed. Matter remanded to the State
Transport Authority for fresh decision in accordance with law. Writ petition allowed.