P.C Borooah, J.:— The petitioner Mohammad Habibul Haque is at present employed as a Preventive Officer, Grade I under the Collector of Customs, Calcutta. Certain disciplinary proceedings were instituted against him and by an order bearing No. S. 24/8-72 Estt. dated August 9, 1973 passed by the Collector of Customs, Calcutta his pay was reduced to the stage of Rs. 150 in the scale of Rs. 150 to 300 for a period of one year with immediate effect. A copy of this order is Annexure ‘A’ to the petition. Against this order the petitioner made a representation to the Secretary, Central Board of Excise and Customs and an order dated February 6, 1974 the petitioner's appeal was dismissed. The petitioner, thereafter on July 2, 1974 presented a memorial to the President of India against the punishment imposed upon him. After the submission of the memorial the petitioner was promoted to the post of Preventive Officer, Grade I on August 9, 1977. The petitioner, thereafter, on November 21, 1974, withdraw the aforesaid memorial. On November 28, 1974 the petitioner received a show cause Memo dated November 21, 1974 under Rule 29(1)(i) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 asking him to show cause why the punishment imposed upon him by the order copy being Annexure ‘A’ should not be enhanced and why he should be removed from service. A copy of this order is Annexure ‘E’ to the petition.
2. In this application under Article 226 of the Constitution the petitioner has challenged the validity of the aforesaid order copy being Annexure “E” to the petition. It is contended on behalf of the petitioner by the learned Advocate General, Mr. D. Gupta, that after the petitioner was punished by the order, copy being Annexure ‘A’, and he was thereafter promoted, the authorities concerned must be deemed to have condoned his misconduct or misdemanour and a further show cause notice for enhancing the penalty does not lie.
3. Mr. S.K Rai Chowdhury, appearing on behalf of the respondents has argued that it is open to the petitioner to reply to the impugned show cause notice and submit that no penalty by way of enhancement should be imposed upon him in view of the fact that he had been promoted after the punishment, which is sought to be enhanced, had been imposed upon him.
4. The punishment which was imposed upon the petitioner by the order dated August 9, 1973 is a major penalty as defined in Rule 11(v) of the C.C.S (C.C & A.) Rules, 1965. When after imposing such a penalty the authorities concerned thought the petitioner fit to be promoted from Preventive Officer Grade II to Preventive Officer Grade I, it must be assumed that the authorities had condoned the misconduct against him for which he had been punished and his state had been wiped clean. When granting the promotion to the petitioner, the authorities concerned must also have considered the service record of the petitioner including the fact of the disciplinary proceedings and the punishment which had been imposed upon him.
5. When in spite of all this the petitioner was deemed fit to be promoted, then after having promoted him it is not open to the authorities to again ask the petitioner to show cause why the punishment already imposed upon him should not be enhanced. Moreover, in paragraphs 18 and 19 of the petition the petitioner has stated as follows:—
“18. Your petitioner states that after the expiration of the punishment period of one year as ordered,—vide Order No. S. 24-8/72 Estt. dated 9-8-73 subsequently upheld by Central Board of Excise and Customs,—vide letter dated 6th February 1974, your petitioner's case as your petitioner reasonably believes, was 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 with effect from 9th August, 1974.
Your petitioner further states that he reasonably believes that the Collector of Customs was also pleased to recommend that case of your petitioner for the purpose of fixation of his seniority in the cadre of Preventive Officer, Grade I 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.”
6. In the affidavit-in-opposition affirmed on behalf of the respondents Nos. 1 to 6 on May 3, 1976 it has been stated in paragraph 30 with reference to the averments in paragraphs 18 and 19 of the petition that the petitioner had since promoted to the post of Preventive Officer, Grade I with effect from 9-8-1974 as per the findings of the Departmental Promotion Committee and that no further comment was necessary as regards the contention of the petitioner made in the paragraphs under reply. Therefore, the averments made in paragraphs 18 and 19 of the petition go unchallenged.
7. For the reasons stated above, I must hold that the respondents after imposing a penalty and thereafter promoting him, cannot again ask the petitioner to show cause why the punishment which had already been imposed, should not be enhanced. By issuing the impugned order the Customs Authorities have taken up an inconsistent stand and the petitioner should not be subjected to further harassment by having to submit an explanation to the impugned show cause notice.
8. The application accordingly succeeds and the Rule is made absolute. The impugned show cause notice copy being Annexure “E” to the petition, is quashed. Let an appropriate writ issue accordingly.
9. In case the petitioner's seniority in service has been kept in abeyance by virtue of the impugned notice the same should be reconsidered in accordance with the Rules.
10. There will be no order as to costs.
11. Application allowed.