P. A. Varghese v. Union of India and Rubber Board and Chairman, Rubber Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 20TH DAY OF NOVEMBER 2014/29TH KARTHIKA, 1936** **WP(C).No. 9267 of 2013 (G)** **---------------------------** **PETITIONER(S):** **-------------** **P.A.VARGHESE, AGED 45 YEARS, S/O. P.V. ABRAHAM, ASSISTANT DIRECTOR(EXCISE) RUBBER BOARD, SUB OFFICE MUMBAI RESIDING AT PARUTHIKUNNEL RUBBER BOARD EMPLOYEES COLONY, RUBBER BOARD P.O., KOTTAYAM.** **BY ADVS.SRI.KRB.KAIMAL (SR.) SRI.M.SREEKUMAR SRI.K.JAYAKUMAR (SR.)** ## **RESPONDENT(S):** **-------------** **1. UNION OF INDIA,** **REPRESENTED BY SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE, UDHYOG BHAVAN, NEW DELHI - 110 001.** **2. THE RUBBER BOARD, REPRESENTED BY ITS CHAIRMAN, P.B. NO. 1122, SUB JAIL ROAD, KOTTAYAM-686 002.** **3. CHAIRMAN, RUBBER BOARD, P.B. NO. 1122, SUB JAIL ROAD, KOTTAYAM - 686 002.** **R2,R3 BY ADV. SRI.V.ABRAHAM MARKOS R2 BY ADV. SRI.MATHEWS K.UTHUPPACHAN R2,R3 BY ADV. SRI.BINU MATHEW R2 BY ADV. SRI.TERRY V.JAMES R2,R3 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) R2 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.P.PARAMESWARAN NAIR, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS.** _**WP(C).No. 9267 of 2013 (G)**_ ## **APPENDIX** **PETITIONER(S)' EXHIBITS : ------------------------** |**EXIHIBIT.P1**|**TRUE COPY OF THE ORDER NO. C1/2/2009-VIG. DATED**| |---|---| ||**7-10-2010 OF THE 3RD RESPONDENT.**| |**EXIHIBIT.P2**|**TRUE COPY OF THE ORDER NO. 3/24/1/2010/EST DATED**| ||**8-10-2010 DEPUTY SECRETARY (P& A) OF RUBBER BOARD.**| |**EXHIBIT.P3**|**TRUE COPY OF ORDER NO. 6(14)/2010 PLANT-C DATED**| ||**28-10-11 OF THE 1ST RESPONDENT.**| |**EXIHIBIT.P4**|**TRUE COPY OF THE ORDER NO. C1/2/2009-VIG. DATED**| ||**14-12-11 OF THE 3RD RESPONDENT.**| |**EXHIBIT.P5**|**TRUE COPY OF THE ORDER NO. 6/14/2010 PLANT-C DATED**| ||**19-10-12 OF THE 1ST RESPONDENT.**| |**EXHIBIT.P6**|**TRUE COPY OF ORDER NO.3/23/2012/EST DATED 7-11-12**| ||**OF THE 3RD RESPONDENT.**| |**EXHIBIT.P7**|**TRUE COPY OF REPRESENTATION FILED BY PETITIONER**| ||**BEFORE THE 3RD RESPONDENT DATED 5-12-12.**| |**EXHIBIT.P8**|**TRUE COPY OF ORDER NO.3/23/2013/EST DATED 23-1-13**| ||**OF THE DEPUTY SECRETARY (P&A) OF RUBBER BOARD.**| **RESPONDENT(S)' EXHIBITS : -----------------------** **NIL.** **/TRUE COPY/** **P.A.TO JUDGE** **RVS.** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 9267 of 2013** ---------------------------------------- Dated this the 20[th] day of November, 2014 ## JUDGMENT The petitioner, an Assistant Director (Excise) working in the respondent Board, was initially subjected to disciplinary proceedings on the allegation of graft charges which resulted in the reduction of his rank as punishment through Exhibit P1 order by the disciplinary authorities. When it was appealed against, the appellate authority remanded the matter through Exhibit P3 to the primary authority, i.e. the disciplinary authority. ## 2. Pursuant to the remand, the third respondent passed Exhibit P4 order, which reads as follows: “After a careful consideration of the facts, I review the penalty of reduction in rank passed by the then Disciplinary Authority vide Order No.C1/2/2009-Vig. dated 07.10.2010 imposed on Shri. P.A. Varghese and in exercise of the powers conferred on me under rule 11 read with rule 10 of the Rubber Board Service (CCA) Rules, 1961 impose on him the penalty of reduction to the post of Farm Assistant W.P.(c) No. 9267 of 2013 2 substantively in the lower service, to which he was initially recruited to the service of the Board as provided in clause (iv) of Rule 9. Accordingly, Sri. P.A. Varghese from Asst. Director (Excise) stands reduced to the post of Farm Assistant (formerly Field Asst) which was held by him at the time of his promotion as Excise Duty Inspector in the scale of pay of Rs. 5200-20200 (PB1) with the Grade Pay of Rs.2,400/- with effect from the date of the Order No. C1/2/2009-Vig. dated 07.10.2010. The reduction of the Charged Officer by Order No. C1/2/2009-Vig. dated 07.10.2010 to the post of Farm Assistant in the lower service which he was holding before he was promoted to the post of Excise Duty Inspector, will sustain in the following manner…” 3. As could be seen from the record, the petitioner laid further challenge against Exhibit P4 before the first respondent, the appellate authority. Eventually, the said authority passed Exhibit P5 order to the following effect: “7. After hearing Shri. P.A. Varghese and perusing the record on the file, I find that the offence of bribe taking is to be taken seriously even though the amount involved may be small. The matter was inquired into and the Disciplinary Authority has imposed a severe punishment upon Shri. Varghese. Even after the case was remanded, the Disciplinary Authority has upheld the punishment. However, while concurring with the findings of the Disciplinary Authority holding the official guilty of the charges, I find that the penalty imposed is too harsh and disproportionate to the gravity of the offence. Accordingly, I order a modification in the penalty whereby Shri. Varghese is hereby reinstated to the post of Assistant Director (Excise) with immediate effect but reduced to a W.P.(c) No. 9267 of 2013 3 lower time scale of pay by 3 stages for 3 years without cumulative effect.” 4. In the light of the modified punishment imposed by the appellate authority, the third respondent issued Exhibit P6 proceedings, reinstating the petitioner to the post of Assistant Director (Excise) with effect from 19.10.2012, i.e. from the date of order of the appellate authority. The period the petitioner was made to serve in the reduced rank prior to passing of the appellate order, however, remained undisturbed. In other words, Exhibit P5 order was applied prospectively keeping in tact the punishment imposed through Exhibit P4 till the appellate order came to be passed. Aggrieved thereby, the petitioner has approached this Court. 5. The learned counsel for the petitioner has submitted that in Exhibit P5 the appellate authority has clearly recorded the finding that the punishment imposed on the petitioner is too harsh and disproportionate to the gravity of offence. He has further submitted that in the light of the said submission, the appellate authority has modified the punishment imposed by the disciplinary authority in its W.P.(c) No. 9267 of 2013 4 entirety. Expatiating on his submissions, the learned counsel has contend that the doctrine of merger clearly applies in the present instance and going by the said accepted principle, Exhibit P5 order of the appellate authority shall take effect from the date when Exhibit P1 was passed, inasmuch as all previous orders passed by the disciplinary authority stand merged with and subsumed in Exhibit P5 order. 6. The learned Standing Counsel for the respondent Board has strenuously contended that the appellate authority has consciously passed the order in Exhibit P5 applying the modified punishment only prospectively. According to the learned Standing Counsel, in these circumstances the order is required to be read in plain terms thereby gathering the intention of the appellate authority. Any other interpretation, according to the learned counsel, will do violence to the plain language employed by the appellate authority. 7. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, apart from perusing the record. W.P.(c) No. 9267 of 2013 5 8. Indeed, it is too well established to be reiterated that in quasi-judicial proceedings, as well as judicial proceedings, an order of an appellate authority subsumes the order of the primary authority, thus bringing into operation the doctrine of merger. Once by way of merger the order of the primary authority loses its existence, it is deemed that the said order has not been in existence at all. Once this judicial dictum of vintage value is accepted, it is difficult to apply Exhibit P5 prospectively. In fact, there is some ambiguity in Exhibit P5 order, especially in paragraph seven thereof, as if the appellate authority had intended to have the order applied prospectively. 9. The doctrine of merger has its origin in common law. It has its application not only in the realm of judicial orders but also in the realm of estates. In its application to orders passed by the judicial and the quasi-judicial courts and authorities it implies that the order passed by a lower authority would lose its finality and efficacy in favour of an order passed by a higher authority before whom correctness of such an order may have been assailed in appeal or revision. The doctrine applies regardless of whether the W.P.(c) No. 9267 of 2013 6 higher court or authority affirms or modifies the order passed by the lower court or authority. (vide _CCE v. Pearl Drinks Ltd., (2010) 11 SCC 153)._ 10. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the case before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. (vide _Kunhayammed v. State of Kerala, (2000) 6 SCC 359)_ 11. If both orders are allowed to stand, though consecutively, it amounts to multiple punishments, if not W.P.(c) No. 9267 of 2013 7 double jeopardy, which, at any rate, does not apply to disciplinary proceedings. Thus, there cannot be any application of different modes of punishment in the same case in the name of prospective application. In other words, conceding that Exhibit P4 order should hold the field until Exhibit P5 order came to be passed would amount to giving judicial imprimatur to two orders concerning the same punishment. 12. In the facts and circumstances, having regard to the respective submissions of the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, Exhibit P6 is set aside, directing the respondent Board to apply Exhibit P5 order of the appellate authority from the date of Exhibit P1. It is further made clear that the respondent Board shall pass all further consequential orders accordingly. With the above observation, this writ petition is disposed of. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-