IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 8304 of 1999 Between: G. Anjaneya Swamy S/o G. Venkateswara rao, 5-9-23, Hill Fort Road, Adarshnagar, Hyderabad - 500063 ..... PETITIONER AND 1 The Regional Director Employees State Insurance Corporation 5-9-23, Hill Fort road, Adarsh Nagar, Hyderabad 500063 2 Director of Administration (presently Addl. Commissioner of Admn.) Employees State Insurance Corporation, New Delhi 110002 3 The Director General (P&A) Employees State Insurance Corporation Rotla Road, New Delhi 110002 .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an order direction or writ particularly one in the nature of writ of Mandamus or any other appropriate writ and quash the order of the Hon'ble Central Admn. Tribunal, Hyderabad Bench, Hyderabad in O.A. No.1576 of 1998 dated 22-2-1999 and consequently set aside the punishment imposed on the petitioner vide proceedings No.52-C/14/14/69/93-Estt.I dated 12-9-1997 reverting the petitioner from the post of Assistant to L.D.C. Counsel for the Petitioner: MR.G.VIDYASAGAR Counsel for the Respondents.: MR.VEMURIVENKATESWARA RAO The Court made the following : O r d e r: (Per Justice Ghulam Mohammed) 1. This writ petition is filed by G.Anjaneya Swamy seeking a Writ of Mandamus to quash the order dated 22.2.1999 passed in O.A.No.1576 of 1998 on the file of Central Administrative Tribunal, Hyderabad Bench and consequently set aside the punishment imposed on him vide proceedings No.52-C/14/14/ 69/93-Estt.I, dated 12.9.1999 reverting from the post of Assistant/Head Clerk to L.D.C. 2. Brief facts of the case leading to filing of this writ petition by the petitioner are: The petitioner was appointed as L.D.C in the respondents- Corporation on 4.3.1974 and got promoted as U.D.C. in the month of May, 1979. Thereafter, the petitioner was further promoted to the post of Assistant, which is in the cadre of Head Clerk on regular basis with effect from 4.5.1990. On 3.2.1993 the petitioner was issued proceedings bearing No.52-C/14/14/69/93.Estt.I under Regulation 14 and para 3 of Third Schedule of ESIC (Staff and Conditions of Service) Regulations, 1959 alleging that he was engaged in part time employment with M/s Chandana Brothers, Hyderabad in preparing records and returns in connection with E.S.I. Act. The petitioner submitted his explanation denying the said charges on 12.2.1993. It is averred that without considering his explanation, on enquiry, the 1st respondent issued order dated 12.9.1997 imposing penalty of reversion, which reads as under: “ Hereby order reversion of Sri.G.Anjaneya Swamy, Assistant to the post of L.D.C. with immediate effect, until he is found fit, after a period of 3 years from the date of this order, to be promoted to the post of U.D.C. His pay in the post of L.D.C. will start at the minimum of pay scale application to the post of L.D.C.” Aggrieved by the above punishment, the petitioner preferred an appeal on 18.9.1997 to 2nd respondent, which was not forwarded to the competent authority. Hence, the petitioner filed O.A.No.1647 of 1997, which was disposed of on 12.12.1997 directing the appellate authority to dispose of the appeal within two months. The 2nd respondent upheld the order of punishment subject to modification that he shall be ranked senior most LDC until he is found fit after three years to be promoted to UDC and his pay in the post of L.D.C. to start at the minimum of the pay scale applicable to the post of L.D.C by order No.C16/14/177/97/Vig.97, dated 28.1.1998. The petitioner preferred a review against the order to 3rd respondent on 27.2.1998. The 3rd respondent rejected the revision by an order No.16/14/177/98-Vig. Dated 11.11.1998. He filed O.A.No.1576 of 1998 challenging the order dated 12.9.1997 reversion and memo dated 20.1.1998 and also reviewing authority order dated 11.11.1998, which was dismissed by an order-dated 22.2.1999. Hence, this writ petition by the petitioner. 3. Heard learned counsel appearing for the parties. 4. Learned counsel appearing for the petitioner submits that the appellate authority while confirming the punishment imposed by the disciplinary authority has enhanced the punishment without giving any notice or opportunity to the petitioner. He vehemently contends that the entire approach of the Tribunal was erroneous in as much as the double reversion order from Assistant/Head Clerk to L.D.C. He further contends that Rule 15 of CCS (Conduct) Rules, 1964 does not attract the petitioner as the petitioner did not take any remuneration from M/s Chandana Brothers and that he has rendered his free service as a friend in preparing the returns to be filed before the ESI Corporation. 5. Learned Counsel appearing for the respondents-Corporation contends that Rule 15 of CCS (Conduct) Rules, 1964 do attract the petitioner as he has not preferred to examine any of the persons from M/s Chandana Brothers so as to discharge his burden that he had not charged any remuneration or his services were only friendly in preparing the returns to be filed before the ESI Corporation. He has drawn our attention to the judgment of this court in ESI CORPORATION, HYD. V. G.VENUGOPAL[1], wherein it has been held that rendering possible assistance by the Corporation officials to registered employers in discharging their duties and obligations under the ESI Act can never mean that an employee can render part time/consultancy service to a registered employer. 6. A fact remains that the petitioner has rendered his services to M/s Chandana Brothers, Hyderabad. After the enquiry report was submitted, the disciplinary authority came to the conclusion that as per Rule 15 of CCS (Conduct) Rules, 1964 the petitioner has committed misconduct of rendering his services to M/s Chandana Brothers, Hyderabad in preparing the records and returns in connection with E.S.I. Act being a public servant and accordingly imposed punishment as stated supra. 7. It appears the judgment on which the learned counsel for the respondent relied on has been carried to the Supreme Court and the Supreme Court modified the quantum of punishment. Copy of the order dated 30.9.2002 passed in Spl.Leave to Appeal (Civil) No.2098 of 2002 has been placed on record. The order of the Supreme Court reads as here under: “ Heard learned counsel for the parties. By the order dated 27.4.1998 the Zonal Office, Andhra Pradesh Employees State Insurance Corporation imposed following punishment for the charges proved against the petitioner. “ Therefore, I, O.Abdul Hameed, Regional Director, under the powers conferred on me vide Regulation-12 of ESIC (Staff and Conditions of Service) Regulation, 1959, as amended, hereby order reduction of Sri.G.Venugopal, UDC-Cashier to the lower post of LDC with effect from the date of service of this order until he is found fit, after a period of five years, from the date of this order to be restored to the High Post of UDC/UDC- CASHIER. He shall not on his re-promotion to his original post regain his original seniority in the higher post of UDC/UDC-Cashier which was assigned to him prior to the imposition of penalty and as and when he is promoted to the post of UDC/UDC-Cashier, his seniority shall be fixed with reference to the date of such promotion. The period of reduction will also operate to postpone his future increments in the time scale of his original post, on his restoration to that post.” Considering the charges levelled against the petitioner, at our suggestion learned counsel appearing on behalf of the Corporation has agreed that the period of reduction to the lower post of Lower Division Clerk for a period of five years be modified to three years. Ordered accordingly. The Special Leave Petition stands disposed of.” 8. In the facts and circumstances of the case, we are of the view that the punishment imposed by the primary authority effecting double revision from the post of Assistant/Head Clerk to L.D.C. is shockingly disproportionate and excessive, which shocks the conscience of court. Though in rarest of rare cases we exercise discretion to interfere with the findings reached by the disciplinary authority with regard to the quantum of punishment, we deem it appropriate to modify the punishment of double reversion from Assistant-Head Clerk to that of U.D.C. (Upper Division Clerk). 9. Accordingly, this writ petition is disposed of modifying the punishment imposed on the petitioner from Assistant/Head Clerk to L.D.C. to that of Assistant/Head Clerk to U.D.C (Upper division clerk). No costs. 27th November, 2008. ( GHULAM MOHAMMED,J ) TNB/CS ( B.SESHASAYANA REDDY,J ) THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.8304 OF 1999 (Judgment of the bench delivered by Justice Ghulam Mohammed) Date:27th November, 2008. [1] 2001(6) ALD 422 (DB)