Joseph William Jayakaran vs The Chairman, Coffee Board and Union of India (UOI)

P.D. Dinakaran, J.—Admittedly, the Petitioner was directly recruited as Assistant Coffee Inspector by the Coffee Board on 27.4.1978. But

alleging that the Petitioner had indulged in the disposal of 13,2255 kgs. of Coffee in the open market for personal gain by raising dubious invoices

in the names of local sale permit holders, a disciplinary action was initiated against him in spite of his denial of the said allegation.

No doubt, an enquiry officer was appointed, enquiry was conducted, opportunity was given to the Petitioner and it was found in the report

dated 10.1.1994 that the Petitioner, while functioning as Assistant Depot Manager, Pool Sales Depot, Trichy, from 11.6.1994 to 3.8.1992,

disposed of 13,255 kgs. of coffee (6,770 Kgs. of plantation and 6,485 kgs. of Robusta Grades) in the open market for personal gain by writing

dubious invoices in the names of local sales permit holders. Agreeing with the said findings of the enquiry officer, the disciplinary authority, namely,

the first Respondent herein, after issuing a second show-cause notice and considering the representation of the Petitioner dated 11.3.1994, by

proceedings dated 30.6.1994, which is impugned in the above writ petition, reduced the rank of the Petitioner from the Grade of Assistant Coffee

Inspector in the scale of pay of 1200-30-1560-EB-40-2040 to the post of Junior Clerk in the service of the Board as on 30.6.1994 in the

minimum scale of pay of 950-1500, placing the Petitioner at the bottom of the list of Junior Clerks, presumably applying Clauses 8(A)(v) and (vi)

of the Coffee Board Service (Classification, Control and Appeal) Rules, which read as follows:

Rule 8: Penalities: The following penalities may, for good and sufficient reasons and as hereinafter provided, be imposed on a Board Servant,

namely;

Major Penalities: (v) reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the

Board servant will earn increments during the period of such reduction and whether on the expiry of such period, the reduction will or will not have

the effect of postponing the future increments of his pay;

(vi) reduction, to a lower time scale of pay, grade or post which shall ordinarily be a bar to the promotion of the Board Servant to the time scale of

pay, grade or post from which he was reduced with or without further direction to the grade or post from which the Board Servant was reduced

and his seniority and pay on such restoration to that grade or post;

Rules S(vii), (viii) and (ix) providing for compulsory retirement, removal from service and dismissal respectively apply to all, promotees and direct

recruits, because they result in a person''s exit from service.

Aggrieved by the said proceedings dated 30.6.1994 of the first Respondent, the Petitioner, in W.P. No. 12137 of 1994, seeks the issue of a

writ of Certiorari to call for the records of the first Respondent, the Chairman, Coffee Board in Ref. No. Vig. 8/92(17)/787 dated 30.6.1994 and

to quash the same: and in W.P. No. 12138 of 1994, seeks the issue of a writ of Declaration declaring that Rule 8 of the Coffee Board Servants

(Classification, Control and Appeal) Rules 1967, in so far as it is invoked against a directly recruited employee of the Board is void,

unconstitutional, non-est and therefore any order that emanates from operating the said Rule 8 is without legal sanctity, null and void.

Mr. M.A. Sadanand, learned Counsel for the Petitioner, even though strongly challenges the findings of the enquiry officer which ultimately

culminated in the proceedings dated 30.6.1994, restricts his submissions to challenge the impugned punishment of reduction in rank, as referred to

in the impugned proceedings dated 30.6.1994, as without jurisdiction and that Rules 8(A) (v) and (vi) are not applicable to the case of the

Petitioner in view of the fact that the findings are challenged separately before the second Respondent in the appeal, which is still pending.

Placing reliance on the decisions in Nyadar Singh Vs. Union of India (UOI) and Others, and in P.V. Srinivasa Sastry and others Vs.

Comptroller and Auditor General and others, , Mr. M.A. Sadanand, learned Counsel for the Petitioner, contends that the Rules 8(A)(v) and (vi)

are not applicable in the case of persons who are reduced in rank than the post to which they were recruited initially directly, pursuant to a

disciplinary action.

Per contra, Mr. Gunalingam, learned Counsel appearing on behalf of the second Respondent, contends that as per the Coffee Board Service

(Classification, Control and Appeal) Rules, the post of Assistant Coffee Inspector could be filed up on the ratio of 50:50 by direct recruitment and

by promotion from the category of Junior Clerk, and therefore, it is contended that the post of Assistant Coffee Inspector is a promotional post,

and hence, the Respondents have exercised that power''s within the rules, imposing a punishment of reduction in rank to the Petitioner from the

post of Assistant Coffee Inspector at a time scale of pay of 1200-30-1560-EB-40-2040 to the post of Junior Clerk in the minimum scale of pay

of 950-1500.

7.I have given a careful consideration to the submissions of both sides.

The Apex Court, in Nyadar Singh Vs. Union of India (UOI) and Others, dealt with Rule 11(6) of the Central Civil Rules (Classification, Control

and Appeal) Rules, 1955, which reads as follows:

Rule 11 of the Rules enumerates the penalities which may for good and sufficient reasons be imposed on a government servant. Sub-rule (vi) of

Rule 11 provides:

The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed and as government servant namely:

Minor penalties: (Omitted as irrelevant here.)

Major Penalties: (vi) reduction to a lower time scale of pay, grade, post of service which shall ordinarily be a bar to the promotion of the

government servant to the time scale or pay, grade, post or service from which he was reduced, with or without further directions regarding

conditions of the restoration to that grade, of post or service from which the government servant was reduced and his seniority and pay on such

restoration to that pay, grade, post or service.

It is not in dispute that Rule 11(vi) of the CCS (CC&A) Rules are identical to that of Rule 8(A)(vi) of the Coffee Board Service (Classification,

Control and Appeal) Rules.

Interpreting the language of Rule 11(vi) of the CCS (CC&A) Rules, the Apex Court, in Nyadar Singh Vs. Union of India (UOI) and Others, ,

has held as follows:

The import of the expression reduction in rank has been examined in the context of the constitutional protection all ordered to government

servants under Article 311(2) in relation to the three major penalties of dismissal, removal and reduction in rank and the constitutional safeguards to

be satisfied before the imposition of these three major penalties, in Article 311(2), the penalty of ""reduction in rank"" is classed along with dismissal

and removal for the reason that the penalty of reduction in rank has the effect of removing a government servant from a class or grade or category

of post to a lesser class or grade or category, though the government servant is retained in service, however, as a result of the penalty, he is

removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression rank, in reduction in

rank has, for purposes of Article 311(2) an obvious reference to the stratification of the posts or grades or categories in the official hierarchy, it

does not refer to the mere seniority of the government Servant in the same class or grade or category. Though reduction in rank, in one sense,

might connote the idea of reversion from a higher post to a lower post, all reversions from a higher pose are not necessarily reductions in rank. A

person working in a higher post, not substantively, but purely on a officiating basis may, for valid reasons, be revered to his substantive post. That

would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitive element.

Referring to the said decision, the Apex Court, in P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, has held

as follows:

The expression reduction in rank in Article 311(2) has an obvious reference to different grades in service. Whenever there is a reduction in rank

it implies reversion from a higher post to a lower post. Reversion from a higher post to a lower post may be under exigencies of situation or by way

of punishment. The expression ""reduction in rank"" within the meaning of Article 311(2) as the expression itself suggests, means reduction from a

higher to a lower rank or post. But the question is whether in this process an officer can be reduced from a higher rank or a post to a rank to which

he never belonged and to a post which he never held? If the power to reduce an officer by way of punishment to a rank which was never held by

such officer is conceded, then a person directly appointed as Upper Division Clerk cannot only be reverted to the post of Lower Division Clerks,

but even to the post of a Peon: an Engineer to the post of a Fitter, a Headmaster of a School to the post of an Accountant or Clerk in the said

School. As such even while imposing the punishment of reduction in rank, the order must have nexus with the post held by the delinquent officer

concerned, from which he had been promoted to the post from which he is being reverted. If such an officer had not held that post or was not

member of the cadre then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold at any stage.

this Court in the case of Nadar Singh v. Union of India in connection with Rule 11(vi) of the Central Civil Services (Classification, Control and

Appeal) Rules, 1965 said: (SCC p. 181, para 30).

The argument that the rules enables a reduction in rank to a post lower than the one to which the civil servant was initially recruited for a specified

period and also enables restoration of the government servant to the original post, with the restoration of seniority as well, and that, therefore, there

is nothing anomalous about the matter, does not, in our opinion, wholly answer the problem. It is at best one of the criteria supporting a plausible

view of the matter. The rule also enables an order without the stipulation of such restoration. The other implications of the effect of reduction as a

fresh induction into a lower grade, service or post not at any time earlier held by the Government servant remain unanswered. Then again, there is

an inherent anomaly of a person recruited to the higher grade or class of post being asked to work in a lower grade which in certain conceivable

cases might require different qualifications... But, an overall view of the balance of the relevant criteria indicates that it is reasonable to assume that

the rule-making authority did not intend to clothe the Disciplinary Authority with the power which would produce such anomalous and

unreasonable situations. The contrary view taken by the High Courts in the several decision referred to earlier cannot be taken to have laid down

the principle correctly.

We are in respectful agreement with the aforesaid view.

Even though the learned Counsel for the second Respondent contends that as per Clauses 8(A)(v) and (vi) of the Coffee Board Service

(Classification, Control and Appeal) Rules, the post of Coffee Inspector could be filled up in the ratio of 50:50 by direct recruitment or by

promotion from the post of Junior Clerk respectively, and that the post of Assistant Coffee Inspector is a promotional post, and therefore, the

Respondents have exercised their powers by passing the impugned proceedings as per the Rules and consequently, the decisions referred to above

are not applicable to the facts and circumstances of this case, I am unable to agree with the said contention, as in the instant case, admittedly, the

Petitioner was directly recruited as Assistant Coffee Inspector on 27.4.1978. But by the proceedings dated 30.6.1994, the Petitioner''s rank was

reduced from the Grade of Assistant Coffee Inspector at a time scale of pay of 1200-30-1560-EB-40-2040 to the post of Junior Clerk at a

minimum time scale of pay of 950-1500, placing the Petitioner at the bottom of the list of Junior Clerks, which is admittedly a lower rank to which

the Petitioner was initially recruited directly, which is not permissible in view of the ratio laid down in the decisions, viz.,

i Nyadar Singh Vs. Union of India (UOI) and Others, and

ii P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others,

What is relevant is the fact that the Petitioner, who was directly recruited to the post of Assistant Coffee Inspector, was sought to be reduced

in rank to the post of Junior Clerk, which is lower than the post to which the Petitioner was initially recruited. Hence, I am of the considered

opinion that the ratio laid down in the decisions, namely:

i. Nyadar Singh Vs. Union of India (UOI) and Others, and

ii P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, are squarely applicable to the facts and circumstances of the

instant case, and therefore, holding that the impugned proceedings dated 30.6.1994, imposing a punishment of reduction in rank from the post of

Assistant Coffee Inspector to the post of Junior Clerk, is totally without jurisdiction, and hence, Rules 8(A)(v) and (vi) of the Coffee Board Service

(Classification, Control and Appeal) Rules, are not applicable in the case of employees who are directly recruited, while imposing a punishment of

reduction in rank which is lower than the post to which they were directly recruited, the impugned order is quashed and these writ petitions are

allowed. However, since the impugned proceedings 30.6.1994 itself stands quashed by this order, the matter is remitted to the original authority,

viz., the first Respondent, to consider the case of the Petitioner afresh with a further direction that the first Respondent shall pass appropriate

orders reinstating the Petitioner forthwith, with consequential attendant benefits, with a liberty to the Petitioner to challenge the findings of the

enquiry officer and raise all the grounds that are raised in the above writ petitions within three months from the date of receipt of a copy of this

order, and on receipt of such representation, the first Respondent shall pass appropriate orders in a manner known to law.

These writ petitions are ordered accordingly. No costs. Consequently, W.M.R Nos. 18335 of 1994 is closed.