Union Of India & Others () v. Md. Habibul Haque ().

M.M Dutt, J.:— This appeal is directed against the judgment of P.C Barooah, J. whereby the Rule obtained by the respondent under Article 226 of the Constitution was made absolute and the show-cause notice issued by the President of India for the enhancement of penalty was quashed.

2. The respondent was at the material time a Preventive Officer Grade II of the Calcutta Customs. A charge-sheet was served upon him wherein it was alleged that he committed an act of gross misconduct and thereby failed to maintain absolute integrity and devotion to duty in that on June 28, 1968 he added and abetted in the attempt at smuggling certain articles belonging to one C.I Rodrigues, Chief Steward of the M.V Bampora which was lying berthed at 4, King George's Block. After an enquiry was held against the respondent he was dismissed by the Collector of Customs. The order of dismissal was, however, set aside by this Court on the writ petition filed him. Next time when the second show-cause notice was served upon him whereby permitted the respondent to submit his reply to the second show-cause notice and directed the Collector of Customs to pass final orders in the disciplinary proceeding within a certain date from the date of receipt of the reply to the second show-cause notice. The Collector of Customs, after considering the reply of the respondent, passed an order awarding the penalty of reduction of pay of the respondent to the stage of Rs. 150 in the scale of Rs. 150-300 for a period of one year without cumulative effect. The respondent was also reinstated in service with immediate effect. The respondent preferred an appeal against the said order of punishment, but the appeal was dismissed. Thereafter, on July 2, 1974, he filed a memorial to the President of India. In the meantime, the respondent was promoted to the post of Preventive Officer Grade-I. After his promotion, he withdrew his memorial on November 21, 1974. In spite of that, the impugned show-cause notice was served upon him by the President of India through the Under Secretary to the Government of India purporting to act under Rule 29(1)(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. By that show-cause notice it was satated inter alia that provisionally it was decided to enhance the penalty of the respondent to that of removal from service. The respondent was directed to submit his representation within one month of the receipt of the said show-cause notice issued by the President of India. The learned Judge, however, took the view that as the respondent was granted promotion to the post of Preventive Officer Grade I, there was condonation of his past misconduct for which he was penalised, and that accordingly he could not be punished or that there could not be any enhancement of the penalty which he had suffered. In that view of the matter, the learned Judge quashed the impugned show-cause notice. Hence this appeal.

3. On behalf of the appellants it is contended that the disciplinary authority and the authority conferred with the power of review under Rule 29 of the Rules who in this case is the President of India, are two different authorities and it was completely within the competence of the latter authority to consider whether the penalty should be enhanced or not, and as the President of India thought that the penalty should be enhanced he was within his jurisdiction to issue the said show-cause notice in accordance with the Rules. There can be no doubt that the disciplinary authority and the reviewing authority are two different authorities.

4. But the question is whether there has been condonation of the misconduct of the respondent for which he was charged and penalised. In paragraphs 18 and 19 of the writ petition the respondent stated as follows:—

“18. Your petitioner states that after the expiration of the punishment period of one year as ordered vide order No. 5-24-8774 Estt. dated 9-8-73 subsequently upheld by the Central Board of Excise and Customs vide letter dated 6th February, 1974, your petitioner's case as your petitioner reasonably believes, were put before the departmental promotion committee for consideration of the case of his promotion and your petitioner was found to be fit for promotion to the post of Preventive Officer, Grade I, which effect from 9th August, 1974.

Your petitioner further states that he reasonably believes that the Collector of Customs was also pleased to recommend the case of your petitioner for the purpose of fixation of his seniority in the cadre of Preventive Officer, Grade and the Consequential benefits arising therefrom.

19. Your petitioner states that the Respondents herein for oblique reasons and/or collateral purposes are withholding the proper placement of your petitioner in the seniority list and/or vis-a-vis the consequential benefits accruing therefrom.”

5. The statements in paragraphs 18 and 19 of the writ petition were not denied in the Affidavit-in-Opposition of the appellants but the same were admitted. In paragraph 30 of the affidavit-in-opposition it was stated as follows:—

“30. In regard to paragraphs 18 and 19 of the writ petition I say that the petitioner has since been promoted to the post of Preventive Officer Grade I with effect from 9-8-74 as per the findings of the departmental promotion committee. Besides this, no further comment is necessary as regards the contentions of the petitioner made in the paragraph under reply.”

6. It follows from the statements made in Paragraphs 18 and 19 of the writ petition and paragraph 30 of the affidavit-in-opposition that before granting promotion to the respondent his records were considered. It may be reasonably inferred from those statements that the authorities concerned also considered the fact that the respondent was charged for misconduct and was penalised by the reduction of his pay and that after such consideration he was found fit for promotion and was granted the promotion. The learned Judge, in our view, has rightly observed that the authorities had condoned the misconduct of the respondent for which he had been punished and his state had been wiped, clean. It is, however, contended on behalf of the appellants that the fact that the respondent was granted promotion in spite of the fact that he was punished is a matter to be considered by the reviewing authority. We are however, unable to accept this contention. In our view, before issuing the show-cause notice, that authority should have taken into consideration the fact of the respondent's being promoted to the post of Preventive Officer, Grade I. The authority, therefore, did not apply its mind properly before it proposed for the imposition of the penalty of dismissal on the respondent.

7. In the facts and circumstances of the case, we are of the view that the learned Judge was right in quashing the show cause notice.

8. For the reasons aforesaid, this appeal fails and it is dismissed but there will be no order for costs.

Sharma, J.:— I agree.

9. Appeal dismissed.