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W/L IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT APPEAL N020l/ OF 2008 APPELLANT 3/ Devidayal Tripathi, son of Shri PETITIONER Mukta Prasad Tripathi, aged about 66 years, previously posted as Technical Assistant Grade II, Office of District Manager, Food Corporation India, of Dhamdanaka, Durg, District Durg, Chhattisgarh (NOW RETIRED) VERSUS RESPONDENTS /1_ Food Corporation of India, ‘ A Government of India Undertaking, and a duly company incorporated under the provisions of the Companies Act, through its Managing Director, 16— 20, Barakhamba Lane, Krishi Bhawan, New Delhi Zonal Manager (West), FCI Mumbai, Ministry Bhawan, DW Road, Church Gate, Mumbai, Maharashtra 3i Senior Regional Manager, FCI Bhopal, Maharana Pratap Nagar, Bhopal, Madhya Pradesh “4 Chairman, FCI, r1 6-20 Barakhamba Bhawan, New Delhi APPEAL TO DIVISION BENCH UNDER SECTION 2(1¥OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT 2006 READ WITH RULE 158(10) OF THE CHHATTISGARH HIGH COURT RULES 2007 IN THE OOURT OF CRHA’I‘TISGARH, BILASPUR DB: HON’BLE LM. QUDDUS! & HON’BLE EK. AGRAWAL, JJ WRIT APPEAL No.204 OF 2008 others WRIT APPEAL minim sEcTION 2m or“ THE CHHATTI$GARH HIGH COURT APP TO DIVISION BENCH) ACT, 200_6 APPEARANCE: Mr. Amrito Das, counsel for the appellant. Mr. Vmay Pandey, counsel for the respondems. Per LN. QUDDUSI ORAL ORDER A ‘23.06.2010) 1. This writ aypeal has been med against the juégment and cider dated 28th of July, 2008 passed by the lwmed single Judge in Wn't Petition No.2224/2001 dismissing the writ petition in which the petitioner has challenged the impugned Older dated 06.01.1995 passed under Clause (vi) of‘ of the Food Corporation of India, (Stam Regulau'on 54 Regulah’ons, 1971 whemby the penalty of reduction in rank permanently on the appellant fixing his pay scale in the inih’nl stage of gmde ie., Technical Assistant-ll was imposed as also the oxder dated 30.08.1996 whemby the appeal §Ied by the peiitioner was Iejected by respondent no.2 and the AX: \ \ . \ order dated 05.07.2000 wheleby the review pelilion med by \‘\ \\ AEPELLAIIT T T Devidqzygl Tripathi Vs‘ RESPONDENTS Food Catparation affndia dnd the petitioner was also mjecwd by the Manag'ng Dimctor of the mspondcnts Corporation. The petitioner was initially appointed as Technical Assistant Grade-II (for short ’l‘.A.ll) in the Food Corporan'on of India in the year 1968. Aiicr completion of 3 years of sclvice, he was promoted to the post of Technical Assistant Glade-I (for short 'l‘.A.l). Again after a long gap when the occasion arose for further pmmou'on to the post of Assistant Manager, Quality Connol, in the year 1991-1992 some of the contemporaries of the petitioner have been promoted to the said higher post but the petitioner has not been give pmmon'on. On the other hand, a charge sheet was served on him on 27.09. 1993 leveling the following allegations against him: Article 1 Shri D.D. Tripathi, T.A.1 while deployed for procurement of rice under levy horn Rice Millers at Durg during 1990-91 has committed a grave misconduct in as much as lot no.33 comprising of 283 bags PB dne rice accepted by him on 27.6.1991 horn M/s. Adarsh Rice Mi911, Durg, as per the sample referred by' him to Distt. Lab Raipur for placing was well Within tolerance limit for all rehactlona whereas the said lot contained broken and lower grade clearbl beyond specincau'ons as per test check carried out by Zonal squad on 02.07.1991. Factsofthecasc,inbxicf,axe: Shri DD Tripathi had therefore referred improvedsamples mt the purpose of pricing with a view to give undrie benedt to the supplier for his personal gains which resulted in a/loss of Rs.10888.37 towards quality rebate. \\ n Article-2 The said Shri D.D. Tn'pami, T.A.1 had weeptad, 246 bags RR $13 lice under lot No.24 mm M’s. Krhhna Traders, Durg on 14.02.1991. Zonal Sqd. Bnmbay in their tsst check of this lot found that the um ‘S’ mark bags contained brokcn rice bcyond spscEcah'on through the composite sample of the iot was malg'ml in mspect of Brokens against the sample referred by him for pxicing well within the speciheation. Shri DD Tripathi therefore had accepted heterogeneous stocks contlavenjng standing instructions. Article 3 The said DD Tn'pathi had unauthorisaily bmught 30 gunm'es hum Adarsh Rice Mills, Durg on 02.07.1991 with a view to substitute 39 bags selected‘for sampling by the Zonal Sqd with contents of other lots during the lunch bleak when the Sqd was not pleaent at the sampling spot. This was detected by the Squad which resulted in drawl of conect sample hum the bags with original stitching which was subsequmtly found beyond specihcah‘on. The attempt substitute orig'na} bags selected for sampling by the Sqd. was to avoid detecting the stocks beyond specifimtions 8s referring improved sample for his personal gains.’ The petitioner denied all the charges and by letter dated 26.4. 1994 sought for necessaxy documents for his defence. He received reply on 15.6.1994 with sonic documents. In the enquiry initiated by the mspondents, the peu‘tioner has participated, witnesses were pmduced by hoth the parties and the witnesses were examined and cross examined by the parties. The enquiry report was submitted in the ‘month of October, 1994 by one T.C. Garg, in the capacity of enquiry \\\ / / \ authority and the enquhy o$cer by cider damd 06.01.1995 imposed the penalty of rcduch'on in rank permanently on petia‘cner who was holding T.A—I i.e., he is mduced to the rank ofT.A.II where he will be med in the initial stage tofthe gmde. Against the order dt.6.01.1995, the petitioner preferred a departmental appeal to respondent no.2. The appellate authority respondent no.2 by order dated 30.08.1996 dismiqsed the appeal. Thereatter, mercy appeal] levision filed by the petin’oner was also dismissed by the Managing Director of respondent Corpomdon on 05.07.2000. Being aggrieved, the petitioner m/writ petition which has been dismissed by the leaxned single judge. Hence, this appeal. The Enquiry Odir'er submitted his mport mentiom‘ng that charge no.2 is not pmved; with regard to chaige nos.1 &. 3 they are pardally proved and with regard to charge no.1, it was mentioned that there was loss of Rs.10,888.37, but according to the Enquixy owl" himself, there was no loss to the Corporation. The Disciplinary Aumority accepted the report of the Enquiry O$cer in-toto. If we note the fact that Charges no. 1 an 3 were proved partially, but to our surprise, the disciplinary authority by awarding punishment mentioned as if Charge nos.,1 85 3 were fnlly proved. The relevant portion of the order dated 06.01.1995 is quoted as under : "And whereas the undersigied after careful consideration of the facts and circumstances of the case and in the light of the charge sheet, enquiry report, (lettuce brief etc, \‘ . x accepted the wings of the inquixy @cer that Articles No.1 8r, HI axe pmved. For good and sumcient reasons the undersigned hcreby decides to impose the Penalty as speciEed below which shall meet the ends ofjustiee. Now themfore me undersigned hereb imposes the penalty of mduction in rank permanently on Shn' DD Tripathi, T.A.I i.e., he is minced to' the rank ofmu here e in e $6d in the al stage of the Glad. Sd- K. K. autam Sr. ey‘onal Manage 5. Befom pmceeding further, it s necessaxy o mduce Regulation 54 of the Food Corporation f India (Siam Remeons, 1971 contained in an‘s, whch deals with Discipline and Appeal egulaons. Regulatio 54 vides for penalties which s quoted below: Minor Penalties: (I) Censum; (ill Withholdin fhis pmmoh’on; (iii Recovery mm pay of th hol r art of any peeum’axy loss cause b hi to th Comorat by negligence r bleach ofoxdes; 3 (iii) (a Reduction to a lower tag in the time ) se scal ofpay for a pen'o not exceeding (iv) Withhelding ofincxements of pay Major Penalties: (v) save as provided for in Regulation (iii)(a) above, mduch‘on to a lower stage in the time scale of pay for a specmed pen'od, with further directions as to whether or not the- employee of me Corpomu'on will earn increments of pay during the pen‘od of such teduction and whe&er on the expiry of such period, the xeduction will or will // x / < w h w b y mm e (/ G) R r i t mp o P i Rti n pm i g o ) his e we o p d y m e ion o r e d not have the eEect of fostpom‘ng the future incmments of his pay; (vi) reduction to a lower h‘me scale of pay or post which shall ordmanly be a bax to the promotion further dimch‘ons mgarding conditions of m‘stomtion to the post hm which tho employee of the Corporation was Induced and his seniority and pay on such mstomtion to that post (vi!) comphlsoxy mtirement; (viii) removal Mm service which shall not be disqualiiicatjon for future employment under the Corpomu’on. (ix) Dismissal &01n selvice which shall ordinarily be a disqualiocaoon for future employment under the Corpomh‘on. A perusal of Regulation 54(v1) would show that the Disciplinary Authon‘ty may impose penalty to the extent of reduction to a lower time scale of pay or post which shall ordinarily be a bar to the pmmotion of the employee to the time scale of pay or post mom which he was reduced, with or without further directions regalding conditions of restolation to the post hom which the employee ofthe Coxporah‘on ivas Ieduced and his seniority and pay on such restoration to that post meaning themhy the discipEnary authority has two options — one is to reduce the delinquent employee to a lower time scale of pay and the other is to leduce him to a lower post. But in the instant case the wn't appellant has not only been reduced to a lower post that is hum T.A-l to T.A.ll, but also his pay has been hxed at the Initial stage of ink ti‘ y :9 x :’ x n \ \ meaning themby he has bean reduced to a minimum 9f lower time scale am reduction to lower post. If We go into the provisions of Clauae (vi) ofRegulah'on 54, it shows that the won! ‘or’ has been specmcally mentioned betwecn the two phases ie., “reduction to a lower time scale of pay” and “post which shalt ordinarily be a bar m ‘ihe promotion of the empfoyee io the time scale (fpay. Further after the W011i ‘or‘, the following seotcncc has been written -—«r “posi from which he was rewwd, with or without further rdiredions regarding conditions of restoration to the post;#om which the employee of the Corporation was reduced and hie seniority andpay on such restoration to thai post’. Themfom, the woni ‘or’ does not give opu'on to the Dismplmaxy Authority to impose both the punishments on the same charge treating the .word ‘or’ as ‘and’. Themfoxe, if a delinquent employee has been awarded punishment of reduction to a lower post, he cannot be awarded punishment Lof Ieduction to the lowest time scale of that lower post as the question of mduction in 1' e scale would only arise When the punishment of xeduction to a lower stage in the time ‘ acale ofpay is Oldemd and given eh'ect to. In case of Li lacunae, Delhi and others we. EC Narlnder Sigh - (2004) 13 3C0 342, Hon’ble the Supreme Court held that second penalty basedron the qame cause of action would amount to double jeopaniy, therefore, such an action could not be sustained. In View of the above, the Disciplinary Authon‘ty had only one option either to reduce the delinquent employee to a lower post or reduce/ ‘\\. \ / x _\ 7. w _ However, in the instant case, by way of impugned onier dated 06.01. 1995 the writ appellant was not only reduced to a lower post that is hm T.A—I tb T.A.II, but aléo his pay scale was mmd at the initial stage of TA H Themfare, the Impugned order of pumshment would amount to double Jeopaniy and 1s not sustamable m the eye oflaw 9. Further, as discussed in para-4 hemin’ above, the impugned order of punishment passed by the Disciplinary Autbon'ty is susmin on this yound also. 10. For the masons stated above, we set aside the Older dated 28.07.2008 pamd by the leamed single judge. Conequently, the impugned orders passed by the Enquuy O$cer and that of the Dismphnary Authonty as also the reviewmg authonty are also set asule and we hereby Iemlt the matter back to the Dlsclplmmy Authority who shall consular the case of wnt appellant ahesh m the light of the observations made herem above and pass appmpnate orders ’l‘lus exemtse should be done mthm a penod of tbur months hum the date of mcelpt or production of winded copy of thls Older winch ever 1s earlier. 1 ccordmglY: wnt appeal 1s allowed No older as to cost. Sd/— woe) ‘ ’ . Sd/- w -‘\ LM Quddusi f N K Agrawal g Judge > I Judge 9