REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2011 (Arising out of S.L.P. (C) No. 31461 of 2009)

State of U.P. & Ors.                             .... Appellant (s)

Versus

Madhav Prasad Sharma             .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  Leave granted.

2)  This appeal is directed against the final judgment and  

order  dated  29.06.2009  passed  by  the  High  Court  of  

Judicature at Allahabad in Special Appeal No. 614 of 2009  

whereby the Division Bench of the High Court dismissed  

the special appeal preferred by the appellants herein.

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3)  Brief facts:

(a) The respondent was appointed as Police Constable at  

Police  Lines,  Aligarh  vide  order  dated  01.02.1978.  On  

19.10.2001,  the  respondent  had  gone  for  some  official  

work and left the Police Station, Sikandarpur Vaishya and  

thereafter came back on his duty on 28.01.2002 after 101  

days.  After  initiation  of  departmental  proceedings,  the  

Disciplinary Authority issued notices to the respondent on  

various dates for seeking explanation for his unauthorized  

absence  from  duty.   On  23.03.2002,  the  Deputy  

Superintendent  of  Police  (in  short  “the  DSP”)  issued  

charge sheet against the respondent by leveling charges  

and directed him to submit the reply by 01.04.2002.  As  

the respondent did not reply to the notice, the DSP issued  

another  notice  to  the  respondent  on 04.04.2002.   After  

giving  several  opportunities  to  the  respondent,  the  

Disciplinary  Authority  fixed  the  date  as  01.07.2002  for  

recording of evidence but the respondent did not appear  

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before  the  Presiding  Officer.  Finally,  the  respondent  

appeared before the Presiding Officer on 16.09.2002 and  

informed that he has no defence witness.  After completion  

of the enquiry, the Presiding Officer, vide his order dated  

09.10.2002,  submitted  his  report  to  the  Disciplinary  

Authority.   Agreeing  with  the  enquiry  report,  the  

Disciplinary  Authority  issued show cause   notice  dated  

25.10.2002 to the respondent along with the copy of the  

enquiry  report  for  his  comments/reply  on  the  findings  

recorded  therein.   On  06.11.2002,  the  respondent  

submitted  his  reply  stating  that  he  had  accepted  the  

findings on the charge of unauthorized absence from duty  

on the ground of illness.  

(b) The Sr. Superintendent of Police (in short “the SSP”),  

Etah, vide order dated 23.11.2002, terminated the service  

of the respondent.  Feeling aggrieved by the said order, the  

respondent  preferred  Departmental  Appeal  before  the  

Deputy Inspector  General  of  Police  (in  short  “the DIG”),  

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Agra Zone, Agra.  Vide order dated 27.02.2003, the DIG  

rejected the appeal filed by the respondent herein.   

(c) Aggrieved by the said order, the respondent preferred  

writ petition being C.M.W.P. No. 53909 of 2003 before the  

High Court which was allowed by the learned single Judge  

vide his order dated 17.09.2008.  Against the said order,  

the appellants herein preferred special appeal being S.A.  

No.  614  of  2009  before  the  High  Court.   The  Division  

Bench  of  the  High  Court,  vide  its  order  29.06.2009,  

dismissed  the  special  appeal  on  the  ground  of  

maintainability.   Aggrieved  by  the  said  order,  the  

appellants  have  preferred this  appeal  by  way of  special  

leave before this Court.

4)   Heard  Mr.  Shail  Kr.  Dwivedi,  learned  Additional  

Advocate General for the State of U.P. and Mr. V. Shekhar,  

learned senior counsel for the respondent.

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5)  Without going into the merits of  the charges leveled  

against the respondent, let us consider the following two  

questions:-

(i)  Whether the Special Appeal No. 614 of 2009 preferred  

by the State before a Division Bench against the order of  

the learned single Judge allowing the writ petition filed by  

the petitioner therein is maintainable?   

(ii)  Even if we answer the first question in the negative,  

whether the order of the learned single Judge quashing  

the order of termination dated 23.11.2002 of the petitioner  

therein is sustainable.

6)   In  view  of  the  limited  issues,  there  is  no  need  to  

traverse all the factual details.  However, it is relevant to  

refer  the  charge  leveled  against  the  respondent  herein  

which reads as under:-

“You  left  Police  Station  Sikandarpur  Vaishya  on  19.10.2001  for  the  Office  of  Circle  Officer  in  connection  with  some  departmental  work  and  thereafter  you came back on 28.01.2002 and thus  remained unauthorizedly  absent  for  101 days from  your  service  without  any  sanctioned  leave/permission in this regard.”

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Pursuant to the Charge Memo, the delinquent was asked  

to show cause and ultimately enquiry was conducted and  

the Enquiry Officer submitted his report.  The Disciplinary  

Authority,  namely,  the  SSP,  by  order  dated  23.11.2002  

terminated the service of the respondent with immediate  

effect.   By  order  dated  27.02.2003,  the  Appellate  

Authority,  i.e.,  the DIG, Agra also dismissed the appeal  

filed by the respondent herein.   Against the said order,  

the  respondent  filed  Writ  Petition  No.  53909  of  2003  

before the High Court.  By order dated 17.09.2008, the  

learned  single  Judge,  after  finding  that  the  respondent  

herein  had  been  sanctioned  leave  without  pay  and  

subsequently  his  service  was  terminated  on  the  same  

ground and as such two punishments were inflicted for  

one charge which is not permissible in law, quashed the  

order of termination dated 23.11.2002.  We will consider  

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the merits of the order of the learned single Judge while  

considering the second issue.

About the First Issue:-

7)  Against the order of the learned single Judge, the State  

Government filed Special Appeal No. 614 of 2009 before  

the Division Bench of the High Court.  Rule 5 of Chapter  

VIII  of  Allahabad High Court  Rules,  1952 speaks about  

Special Appeal which reads as under:-

“Special Appeal.—An appeal shall lie to the Court from  a judgment not being a judgment passed in the exercise  of appellate jurisdiction in respect of a decree or order  made by a Court subject to the Superintendence of the  Court and not being an order made in the exercise of  revisional jurisdiction or in the exercise of its power of  Superintendence  or  in  the  exercise  of  criminal  jurisdiction or in the exercise of jurisdiction conferred  by  Article  226  or  Article  227  of  the  Constitution  in  respect of any judgment, order or award (a) of a tribunal  Court or statutory arbitrator made or purported to be  made  in  the  exercise  or  purported  exercise  of  jurisdiction under any Uttar Pradesh Act or under any  Central  Act,  with  respect  to  any  of  the  matters  enumerated in the State List or the Concurrent List in  the Seventh Schedule to the Constitution, or (b) of the  Government  or  any  Officer  or  authority,  made  or  purported  to  be  made  in  the  exercise  or  purported  exercise of appellate or revisional jurisdiction under any  such Act of one Judge.”

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8)     It  is  fairly  admitted  that  in  view of  the  fact  that  

against  the  order  of  termination  the  delinquent  availed  

departmental  appeal  to  the  DIG,  after  the  order  of  the  

learned single Judge no further appeal by way of special  

appeal before the Division Bench would lie.  The materials  

placed and in view of the fact that the order of the SSP  

was  considered  and  disposed  of  by  the  Appellate  

Authority,  i.e.,  DIG and  also  of  the  fact  that  the  order  

impugned in the writ petition was passed in exercise of  

appellate  jurisdiction  in  terms  of  The  Uttar  Pradesh  

Subordinate  Police  Officers/Employees  (Punishment  and  

Appeal)  Rules,  1991  (hereinafter  referred  to  as  “the  

Rules”), we concur with the conclusion arrived at by the  

Division Bench of the High Court  in the impugned order.  

However, in view of the fact that this Court issued notice  

in the special  leave petition as early  as on 20.11.2009,  

after hearing  the arguments of either side, we intend to  

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consider  the  merits  of  the  order  of  the  learned  single  

Judge dated 17.09.2008.   

About the Second Issue:-

The learned single Judge, without going into the merits of  

the claim made by both the parties with reference to the  

charge  leveled  against  the  delinquent,  enquiry  

proceedings, order of the SSP and DIG, quashed the order  

of termination on the simple ground that the delinquent  

was  inflicted  with  two  punishments  which  is  not  

permissible in law.  In the second paragraph, the learned  

single Judge after pointing out that due to illness of the  

delinquent  the  Department  has  sanctioned  his  leave  

without  pay  and  thereafter  his  service  has  been  

terminated  for  his  absence  which  amounts  to  two  

punishments  for  one  charge  and  quashed  the  order  of  

termination.  On going through the relevant rules, we are  

of the view that the learned single Judge committed an  

error in arriving at such a conclusion.   

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9)  Rule 4 of the Rules prescribes the mode of punishment  

which reads as under:

“4.  Punishment.—(a)  The  following  punishments  may,  for  good  and  sufficient  reasons  and  as  hereinafter  provided, be imposed upon a Police Officer, namely:--

(a) Major Penalties:-- (i)  Dismissal from service (ii) Removal from service (iii)  Reduction  in  rank  including  reduction  to  a  lower-scale or to a lower stage in a time-scale.

(b)  Minor Penalties:-- (i) With-holding of promotion (ii) Fine not exceeding one month’s pay (iii) With-holding of increment, including stoppage  at an efficiency bar. (iv) Censure

(2)  In addition to the punishments mentioned in sub- rule (1) Head Constables and Constables may also be  inflicted with the following punishments:--

(i)  Confinement  to  quarters  (this  term  includes  confinement  to  Quarter  Guard  for  a  term  not  exceeding fifteen days extra guard or other duty). (ii) Punishment Drill not exceeding fifteen days. (iii) Extra guard duty not exceeding seven days. (iv) Deprivation of good conduct pay.

(3) In addition to the punishments mentioned in sub- rules (1) and (2) Constables may also be punished with  Fatique duty, which shall be restricted to the following  tasks:-

(i) Tent pitching; (ii) Drain digging; (iii)  Cutting  grass,  cleaning  jungle  and  picking  stones from parade grounds;

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(iv) Repairing huts and butts and similar work in  the lines; (v) Cleaning Arms.”

We are not concerned about other rules.  The perusal of  

major and minor penalties prescribed in the above Rule  

makes it clear that “sanctioning leave without pay” is not  

one  of  the  punishments  prescribed,  though,  and under  

what  circumstances  leave  has  been  sanctioned  without  

pay is a different aspect with which we are not concerned  

for  the  present.   However,  Rule  4  makes  it  clear  that  

sanction of leave without pay is not one of the punishment  

prescribed.  Disciplinary authority is competent to impose  

appropriate penalty from those provided in Rule 4 of the  

Rules  which  deals  with  the  major  penalties  and  minor  

penalties.  Denial of salary on the ground of ‘no work no  

pay’ cannot be treated as a penalty in view of statutory  

provisions contained in Rule 4 defining the penalties in  

clear  terms.   Rule  7  empowers  the  Government  or  any  

Officer of the Police to award the punishment mentioned  

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in Rule 4.  Rule 8 provides for punishment of dismissal  

and removal.  Thus the punishment of dismissal from the  

service is the punishment which has been awarded to the  

Respondent  in  accordance  with  Rules  4  and  8  of  the  

Rules.  There is no question of awarding two punishments  

in respect of one charge.

10)  Doctrine of double jeopardy enshrined in Article 20(2)  

of the Constitution of India has no application in the event  

of  there  being  only  one  punishment  awarded  to  the  

respondent  under  the  Rules  on  charges  being  proved  

during the course of  disciplinary enquiry.   The law laid  

down by  this  Court  in  the  case  of  Union of  India vs.  

Datta Linga Toshatwad (2005) 13 SCC 709 and  Maan  

Singh vs. Union of India, (2003) 3 SCC 464 fully apply in  

the facts and circumstances of the present case.

11)  In State of Punjab & Ors. v. Bakshish Singh, AIR  

1999 SC 2626 = (1998) 8 SCC 222, this Court has dealt  

with a case wherein the Trial Court as well as the First  

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Appellate Court and the High Court had taken the view  

that  in  case  unauthorized absence from duty  had been  

regularized  by  treating  the  period  of  absence  as  leave  

without  pay,  the  charge  of  misconduct  did  not  survive.  

However,  without  examining the correctness of  the said  

legal proposition, this court  allowed the appeal on other  

issues. As the said judgment gave an impression that this  

Court  had  laid  down  the  law  that  once  unauthorized  

absence has been regularized, the misconduct would not  

survive.  The matter  was referred to  the larger  bench in  

Mann Singh’s case (supra) wherein this Court clarified  

that the earlier judgment in Bakshish Singh (supra) did  

not affirm the said legal proposition and after following the  

judgment  of  this  court  in  State  of  M.P.  v.  Hari  Har  

Gopal & Ors., (1969) 3 SLR 274 (SC) disposed of the case  

clarifying  that   this  court   in  Bakshish Singh (supra)  

dealt with only on the issue of remand by the High Court  

as  well  as  by  the  Ist  Appellate  Court  to  the  punishing  

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authority for imposing the fresh punishment.  This Court  

held as under:  

“Bakshish Singh’s case is not an authority for the  proposition that the order terminating the employment  cannot be sustained inasmuch as in the later part of the  same order the Disciplinary Authority also regularized  unauthorized  absence  from  duty  by  granting  an  employee leave without  pay.”   

This  Court  further  held  that  the  law laid down by this  

court in Hari Har Gopal (supra) wherein it had been held  

that in absence of regularization of unauthorized absence  

it may not be possible for the employer to continue with  

the disciplinary proceedings as there would be break in  

service  and  thus,  regularization  of  such  absence  even  

without pay is justified. It is so necessary to continue with  

the disciplinary proceedings.       

12)  In such circumstances, the conclusion of the learned  

single  Judge  that  the  delinquent  had  suffered  two  

punishments cannot be sustained.  At present, we are not  

inclined to go into the validity or otherwise of the order of  

termination  in  this  proceeding.   Inasmuch  as  learned  

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single Judge quashed the order of termination only on the  

ground  that  it  is  impermissible  to  impose  two  

punishments, we set aside the order of the learned single  

Judge  dated  17.09.2008  and  remit  the  matter  to  the  

learned single Judge for fresh disposal.  Both parties are  

permitted  to  put  forth  their  claim  with  regard  to  the  

outcome of the charge, order of the original and appellate  

authority for which we express no opinion and it is for the  

learned single Judge to consider and dispose of the same  

as expeditiously as possible, preferably within a period of  

six  months from the date of  receipt  of  the copy of  this  

judgment.  Civil Appeal is allowed to this extent with no  

order as to costs.

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (DR. B.S. CHAUHAN)  

NEW DELHI; JANUARY  10, 2011.    

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