Anilma Associates And Ors. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 712 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner No. 1 (hereinfter referred to as 'the petitioner firm'), which is a partnership firm, engaged in the manufacture and supply of power and control cables as well as telecommunication cables, has preferred this writ petition against the impugned order dated 29th January, 2002 passed by the Joint Secretary and the Chief Vigilance Officer/respondent No. 2 banning the petitioner firm for a period five years with effect from 29th January, 2002 from having any commercial/business dealings with all departments/Ministries/offices of the Government of India. Before passing this order, the respondent No. 2 had served a show cause notice dated 7th September, 1999 at the instance of the DGS&D to ban the petitioner firm on the alleged ground of evasion of excise duty. It is not in dispute that most of the supplies of the petitioner firm are with the Government departments, namely, the Railways, DGS&D and Bharat Sanchar Nigam Limited.

2. Brief facts, as disclosed by the petitioner firm, which led to passing of the impugned order, may be noted at this stage.

3. It is stated in the writ petition that in September, 1996 the officers of the Central Excise department conducted a search in the business premises of the petitioner firm and took away all the relevant records lying therein, including invoices, RT-12 forms and various other files. The petitioner firm voluntarily deposited a sum of Rs. 55 lacs towards excise duty with the Central Excise Department in September, 1997. However, on 13th February, 1998 a show cause notice was issued by the Commissioner of Central Excise (for short 'the CCE') directing the petitioner firm to pay excise duty of Rs. 63,50,509/- besides calling upon it to show cause why the penalties be not imposed upon it on the alleged ground of evasion of excise duty. It is a detailed show cause running into 21 pages wherein the manner in which the excise duty was evaded by the petitioner firm was elaborately spelt out. Para 29 of this show cause notice wherein action was proposed, is in the following terms:

"Now, therefore, in view of the facts aforesaid M/s. Anilma Associates, Delhi are hereby called upon to show cause to the Commissioner of Central Excise, Central Excise Commissionerate Delhi-I, C.R. Building, I.P. Estate, New Delhi within 15 days of the receipt of this notice as to why:

(i) The proviso to Section 11A of the Central Excise Act, 1944 should not invoked against them for short payment/non-payment of Central Excise Duty evaded by them by means of fraud and willful suppression of facts.

(ii) The Central Excise Duty amounting to Rs. 63,50,509/- of which an amount of Rs. 55,00,000/- has already been deposited by the party should not be demanded from them in terms of Rule 9 (2) of the Central Excise Rules, 1944 read with proviso to Section 11A of the Central Excise Act, 1944 for the period from 1.2.93 to 31.8.96.

(iii) The penalty should not be imposed on them under each of the Rules 9 (2), 52A, 173Q and 226 of the Rules ibid separately for contravening the provisions of these Rules read with Section 11AC of Central Excises Act, 1944.

(iv) The interest on the duty evaded should not be demanded under Section 11AB of Central Excise Act, 1944.

(v) The land and building of the factory of the firm at 227, Village Nangli Sakrawati, Najafgarh Road, N. Delhi and at B 17, Jhilmil Industrial Area, Shahdra, Delhi and machinery installed therein should not be confiscated under Rule 173Q of the Central Excise Rules, 1944."

On 28th May, 1998, the CCE passed an order of adjudication thereby confirming the demand of Rs. 63,50,509/- and also imposed a penalty of Rs. 50 lacs on the petitioner firm as well as Rs. 10 lacs each on both its partners and two other persons employed with the petitioner firm. Against the aforesaid order the petitioner firm preferred an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal (for short 'the CEGAT') on account of deposit of Rs. 55 lacs already made by the petitioner firm. In September, 1997, the mandatory requirement of pre-deposit during the pendency of the appeal was dispensed with vide interim order dated 22nd December, 1998.

It is also stated that the Railways issued a memorandum dated 29th December, 1998 against the petitioner firm calling upon it to show cause why business dealing with it be not banned on account of alleged evasion of excise duty. The Railways passed a banning order against the petitioner firm which was effective for a period of two years with effect from 5th May, 1999. Immediately after passing of the aforesaid banning order dated 5th May, 1999 by the Railways, as pointed out, the respondent No. 2 issued a show cause notice dated 7th September, 1999 against the petitioner firm calling upon it to show cause as to why dealings with it by the Government be not banned. Pursuant to the said show cause notice, the petitioner firm made various representations to the respondents vide its letters dated 12th October, 5th November and 25th November, 1999 whereby the petitioner requested the respondents that in the absence of all relevant records being seized by the Central Excise Department in a search conducted in September, 1996, the petitioner firm was not in a position to adequately reply to the allegations of evasion of excise duty since various files, including a file listed at S. No. 121 of the Panchnama, which contained duty paying documents, as well as other files, had not been supplied to it since its seizure in September, 1996.

It may be mentioned at this stage that while proceedings pursuant to the aforesaid show cause notice were pending before the respondent No, 2, appeal filed by the petitioner firm before the CEGAT against adjudication order dated 28th May, 1998 of the CCE came to be decided on 1st March, 2000. The appeal of the petitioner firm was allowed and the matter was remanded back to the CCE, inter alias, observing:

".. ..the case is document based. We also note that a number of documents were required as is evident from the Panchnama. The Panchnama does not give the detailed description of the documents. But the documents were taken over at the time of search of the official premises of the appellants. We note that letters were written by the appellants to the authorities for supply of certain documents. From the records, we find that there is no indication that any reply to these letters was given. We also note that the appellants could not even submit the reply to the show cause notice. In these circumstances, we consider it a fit case for remand..."

4. The petitioner firm duly communicated this order to the respondents 1 and 2 on 5th April, 2000. After the remand of the appeal by the CEGAT, the CCE proceeded to pass the adjudication order on 31st January, 2001 and confirmed its duty demand of Rs. 63,50,509/- along with penalties on the petitioner firm as well as its partners and employees. The petitioner firm again preferred an appeal against this order which is still pending. However, the mandatory requirement of pre-deposit has been waived by the CEGAT vide interim order dated 18th June, 2001.

5. It would be noticed that operation of banning order passed by the Railways came to an end on 5th May, 2001 after the expiry of two years. On 25th September, 2001 the petitioner firm furnished an indemnity bond as required by the Railways for the resumption of business dealings and thereafter on 15th October, 2001 the Ministry of Railways revoked the ban against the petitioner firm with immediate effect. The petitioner firm sent another representation to the respondents 1 and 2 on 15th December, 2001 informing them about the revocation of the banning order by the Railways. However, thereafter on 29th January, 2002 the respondent No. 2 passed the impugned order thereby forbidding the petitioner firm from having any commercial/business dealings with all departments/Ministries/offices of the Government of India in the non-statutory sphere for a period of five years with effect from 29th January, 2002. This writ petition is preferred against the aforesaid order.

6. In support of the writ petition challenging the impugned order, following contentions are advanced by the learned Counsel for the petitioner:

(i) The impugned order is based on earlier order 28thMay, 1998 passed by the CCE which itself was set aside by the CEGAT in appeal, and therefore, reliance on that order could not have been placed by the respondents.

(ii) No proper opportunity was given to the petitioner firm to defend itself. It was submitted, in this behalf, that the documents which were seized by the CCE were not supplied to the petitioner firm which was precisely the ground on which on earlier occasion the CEGAT set aside the order of CCE too and inspite thereof documents were not supplied. For want of these documents, the petitioner firm could not make effective representation against the show cause notice issued by the respondent No. 2.

(iii) For the same alleged violation, the Railways had passed ban order which remained operative for two years. Passing the impugned ban order would thus clearly amounted to double jeopardy.

(iv) The impugned ban order was even otherwise in violation of the Code for Supplier as per which the ban could be imposed by a single Ministry of multiple Ministry and not by both.

(v) The impugned ban order was passed by the respondents because of action taken by the Central Excise authorities. However, the CCE had itself, vide letter dated 4th May, 2000 written to the petitioner categorically stated that the Central Excise Department will have no objection for having business by the Railways with the petitioner firm. It was thus clear that the only complainant i.e. the Excise authorities had no grudge against the petitioner firm. In these circumstances, the respondents should not have taken action against the petitioner firm.

(vi) The impugned ban order was not only mala fide but very harsh on the petitioner firm. The petitioner firm had earlier been banned by the Railways, although that ban order was for a period of two years, in effect ban order continued for a period of four years. If the date from which the Railways stopped dealings with the petitioner firm till date i.e. 15th October, 2001 when the order was passed by the Railways revoking the ban, is taken into consideration, present ban is for a period of five years and in this manner, the petitioner firm is made to suffer a ban for almost nine years, which according to the petitioner firm, is completely arbitrary, unjustified and in violation of certain principles of law.

7. While dealing with the aforesaid submissions, case of the respondents shall also be noticed.

8. As far as these arguments raised by the petitioner firm as noticed in sub-paras (i) and (ii) are concerned, I do not find any merit therein. What is contended is that the primary ground for slapping the ban order for five years against the petitioner firm was founded on the show cause notice dated 13th February, 1998 issued by the office of the CCE, whereas the order of the CCE had been upset by the CEGAT in appeal that may be so. However, what the petitioner firm ignores is that after the remand of the case by the CEGAT to the CCE, the CCE passed fresh adjudication order confirming its earlier penalties. The petitioner firm preferred appeal there against before the CEGAT once again and this time the appeal was dismissed by CEGAT vide order dated 18th February, 2002. This order is annexed with the writ petition and learned Counsel for the petitioner tried to point out that there were certain infirmities in the said order and the petitioner was contemplating to move for reference to the High Court against this order. That by itself cannot be a ground to contend that the respondents should have stayed their hands. It is clear that on the basis of show cause notice dated 13th February, 1998 issued by the CCE, an order of penalty is ultimately passed which is upheld by the CEGAT also.

For same reasons the argument that documents are not still supplied to the petitioner firm will not cut much ice inasmuch as in the order dated 18th February, 2002, while dismissing the appeal of the petitioner firm, the CEGAT has brushed aside this contention of the petitioner firm.

Plea of double jeopardy was raised with all vehemence. Elaborating submissions on this point, the learned Counsel for the petitioner submitted that the ground for inflicting the ban for five years against it by virtue of the impugned order is alleged evasion of excise duty by the petitioner firm which was founded on the show cause notice dated 13th February, 1998 issued by the office of the CCE. The charge of evasion against the petitioner firm as per the said show cause notice has been computed by the Central Excise authorities with reference to the supply of goods to the following departments:

(i)    Railways : Rs.

39,14,201/-

(ii)   Various Government Departments through DGS&D.

Rs.

11,86,308/-

(iii) Evasion by wrong availment of benefit : under Notification No. 1 /93-CE dated 28.2.1993 Rs.

12,50,000/-

It was submitted that for the alleged evasion of excise duties in respect of supplies made to the Railways, the Railways issued show cause notice dated 29th December, 1998 and thereafter passed order dated 5th May, 1999 imposing the ban for a period of two years. The banning order of two years by the Railways was admittedly based upon the alleged evasion of excise duty by the petitioner firm. Before the banning proceedings initiated by the Railways, a letter was sent by them to the Director and Chief Vigilance Officer, Department of Supply seeking an advice whether any action has been taken by the Department of Supply/DGS&D regarding banning of business dealings with such firms. When the Railways passed the banning order against the petitioner firm on 5th May, 1999 the respondents 1 and 2 who were aware of the aforesaid ban order, issued a show cause notice on 7th September, 1999 against the petitioner firm banning it from having any commercial/ business dealing with all departments/Ministries/offices of the Government of India which is also based upon the same allegations of evasion of excise duty by the petitioner firm as in the case of the Railways. It is founded on the same charge of alleged evasion initiated on the basis of Central Excise Department's show cause notice dated 13th February, 1998 and the adjudication order dated 28th May, 1998 on which the Railways had already taken out the proceedings for banning the petitioner firm. The impugned show cause notice dated 7th September, 1999 referred to the same allegations which were levelled in the case of Railways which are to the following effect:

" .....On inquiry and scrutiny of documents, it was observed that the firm had maintained parallel sets of GPT/invoice by clearing the goods clandestinely under parallel invoice/GPT or by issuing two sets of invoice one for collecting duty at the full rate i.e., 25% from the Railway and one for payment of excise duty at concessional rate of 15% or 20% as applicable. Thus the firm had claimed 25% of the Excise Duty while real deposit @ 15% or 20%."

It was also submitted that the respondents also violated the provisions of Standardised Code for Supplies (hereinafter referred to as 'the Code') and Rule 13 thereof in particular. Submission was that as per Rule 13 of the Code banning of business dealings with a firm can be two types, namely, (a) banning by one Ministry and (2) banning by all Ministries. It was argued that an order of banning by one Ministry can only be passed on fulfillment of certain conditions so mentioned therein one of which stated that such an order may be passed in cases where the offence is not considered serious enough to merit a banning order of the second type. It was also submitted that once an order of banning has been passed by one Ministry i.e. the Railways, the initiation of banning proceedings by the respondent No. 2 for banning the petitioner firm from all Ministries is clearly impermissible, illegal and arbitrary. The respondents 1 and 2 could not, all over again, initiate the banning proceedings of the second type after the banning of first type has already been passed on 5th May, 1999 and completed its terms of two years on 5th May, 2001. Moreover, the respondents were barred from invoking both the options i.e. banning by one Ministry and banning by all Ministries against the same firm and on the same allegations. It is also clear from the Code that banning by one Ministry cannot take place without approval and clearance of the Government of India, Department of Supply.

9. There is substance in this submission of the petitioner. As already noted above, the allegations against the petitioner firm are that it maintained more than one set of invoices/GPIs and did not submit copies of invoices and gate pass issued by it along with RT-12 returns. It further did not pay the amounts collected from its buyers, namely, the Railways and DGS&D, representing the due of excise to the Government exchequer although this amount towards excise was duly received by the petitioner firm from these buyers. It is also alleged that the petitioner firm maintained parallel transactions in three Bank accounts on the basis of any disclosed invoice. For these alleged violations, the excise authorities have taken the action under the provisions of Central Excise Act, 1944. Likewise the Railways also issued show cause notice for suspension/banning the petitioner firm from dealing with the Railways and these proceedings culminated in passing the order dated 5th May, 1999 as per which the Railways decided to ban business dealings with the petitioner firm with immediate effect from the date of order for a period of two years or clearance of dues by the petitioner firm with the excise authorities, whichever is later. It may be noted that the petitioner firm had challenged this order dated 5th May, 1999 passed by the Railways by means of writ petition filed in this Court under Article 226 of the Constitution of India being CWP No. 2971/99 entitled Anilma Association and Ors. v. Union of India and Ors. which was dismissed by a Division Bench of this Court vide order dated 21st September, 1999 and the judgments . Since the petitioner firm cleared the dues with the excise authorities and as two years banning period also expired, in May, 2001, the Railways revoked the banning order vide communication dated 15th October, 2001.

10. After passing of the banning order dated 5th May, 1999 by the Railways, the DGS&D also issued show cause notice dated 7th September, 1999 on the same allegations which has resulted in passing the impugned order dated 29th January, 2002 whereby dealings with the petitioner firm are banned for a period of five years. It would thus be seen that banning order is passed first by the Railways and thereafter by the DGS&D on same set of allegations.

11. Whereas the petitioner firm has termed this two fold action as double jeopardy and in violation of the Code, contention of the respondents is that these two are independent authorities who independently had jurisdiction to deal within the limited sphere of their authority on the basis of alleged irregular acts of the petitioner firm. Therefore, in order to appreciate the respective contentions, one will have to first see the provisions of the Code. This Code contains provisions and procedure for dealing with the suppliers. As per para 3 thereof, every Ministry/Department/Office which makes regular purchases, should maintain up-to-date list of approved suppliers after taking into consideration their financial standard, capacity, past performance etc. For this purpose, it is stressed that there should be co-ordination between the DGS&D and other departments of the Government of India with a view to preparation of a common list of suppliers. It is the DGS&D who makes available to the Ministry/Department the list of approved suppliers maintained by them. There are provisions made for removal of a firm from this approved list. Para 6 outlines the contingencies, happening whereof may prompt the Competent Authority to remove a firm from the list of suppliers. These grounds are as under:

"6. Removal from the list of approved suppliers may, at the discretion of the Competent Authority, be ordered if a firm:

(a)    fails to execute a contract or fails to execute it satisfactorily;  
 

(b)    no longer has the technical staff or equipment considered necessary;  
 

(c)    fails to furnish income-tax clearance certificate as required under the rules; and  
 

(d)   is declared bankrupt or insolvent or its financial position has become unsound, and in the case of a limited company, it is wound up or taken into liquidation."    
 

12. Para 12 deals with suspension of business under certain circumstances. Thereafter para 13 deals with banning of business with a firm which is of two types, namely, banning by one Ministry including its attached and subordinate offices and banning by all Ministries including their attached and subordinate offices. Banning by one Ministry is dealt with in para 14 and procedure for banning by all Ministries is stipulated in para 15. Para 16 deals with the grounds on which such banning may be ordered. Paras 14 to 17 and 22 to 23 are relevant for our purposes which are reproduced below:

"I BANNING BY ONE MINISTRY:

14(i) An order of the first type for banning business dealings with a particular firm shall be passed by a Ministry/Department concerned. It will, however, be open to it, before such an order is issued, to consult the Department of Supply, if necessary.

(ii) Such an order may be passed in cases where the offence is not considered serious enough to merit a banning order of the second type, but, at the same time, an order removing the name of the firm from the list of approved suppliers is not considered adequate.

(iii) It shall be passed for a specified period, (iv)

It shall be extended to the allied firms also.

(v) It shall not be circulated to other Ministries/Departments but shall cover all the attached/subordinate offices of the Ministry issuing the order. A copy of the order should, however, be sent to the Department of Supply.

(vi) No contract of any kind whatsoever shall be placed with a banned firm including its allied firms, by the Ministry/Department issuing the order and its attached and subordinate offices after the issue of a banning order. Contracts concluded before the issue of the banning order shall, however, not be affected by the banning order,

II. BANNING BY ALL MINISTRIES

15. An order of the second type for banning business dealings with a firm implies that all Departments/Ministries/Offices of the Govt. of India are forbidden from dealing with that firm.

16. The grounds on which such banning may be ordered are:

(i) if security considerations including question of loyalty to the State so warrant;

(ii) if the proprietor of the firm, its employee, partner or representative is convicted by a Court of Law following prosecution by the Central Bureau of Investigation or under normal process of law for offences involving moral turpitude in relation to business dealings;

(iii) if there is strong justification for believing that the proprietor or employee, or representative of the firm has been guilty of malpractices such as bribery, corruption, fraud, substitution offenders, interpolation, misrepresentation, evasion or habitual default in payment of any tax levied by law;

(iv) if the firm contumaciously refuses to return Govt. dues without showing adequate causes, and Govt. are satisfied that this is not due to a reasonable dispute which would attract proceedings in arbitration or Court of Law; and

(v) if the firm employs a Govt. servant, dismissed/removed on account of corruption, or employs anon-official convicted for an offence involving corruption or abetment of such an offence, in a position where he could corrupt Govt. servants.

17. (i) Banning of firms and the revocation thereof shall be ordered by the Department of Supply.

(ii) A banning order passed in respect of a firm shall be extended to all its allied firms.

(iii) Such an order shall be endorsed to and automatically implemented by all Ministries/Departments including their attached and subordinate offices.

18. XXX

19. XXX

20. XXX

21. XXX

22. A banning order will be circulated to all Ministries/Departments in accordance with the following procedure:

(i)    The Department of Supply will circulate it to:--  
 

(a)   All other Ministries/Departments of the Central Govt.  
 

(b)   All offices under its control.  
 

(ii)   Other Ministries and Departments will, in their turn, communicate the order to offices under their control.  
 

REVOCATION OF ORDERS  
 

23. (i) An order for banning/suspension passed for a certain specified period shall be deemed to have been automatically revoked on the expiry of that specified period and it will not be necessary to issue a specific formal order of revocation, except that an order of suspension/banning passed on account of doubtful loyalty or security consideration shall continue to remain in force until it is specifically revoked.

(ii) An order of banning for the reasons mentioned at para 16 (ii) above may be revoked if, in respect of the same facts, the accused has been wholly exonerated by a Court of Law.

(iii) A banning/suspension order may, on a review, be revoked by the Competent Authority if it is of the opinion that the disability already suffered is adequate in the circumstances of the case."

13. Reading of para 14 makes it clear that banning by one Ministry can be passed when the offence alleged against a firm is not considered serious enough to merit a banning order by all Ministries. Such a banning order is restricted to the Ministry which passed the first order, including its attached/subordinate offices and is not to be circulated to other. Ministries. However, before initiating an action by one Ministry under para 14, it is open to the said Ministry to consult Department of Supply, if necessary. On the other hand, if the offence is considered as serious then order of the second type for banning business may be passed in which case all departments/Ministries/offices of the Government of India are forbidden from dealing with that firm. Detailed provisions in respect of second type of banning are contained in paras 15 to 22.

14. A conjoint reading of these provisions would indicate that if the alleged offence is not considered serious, then banning order would be passed by one Ministry, i.e., the concerned Ministry which dealt with the offended firm. Since the approved list is prepared and circulated by the DGS&D to all the Ministries, the concerned Ministry would normally consult the DGS&D before taking such action. The purpose could be two fold, namely, (a) apprising DGS&D of the alleged offence committed by a particular firm and (b) taking a view as to whether the said alleged offence is to be considered serious or not. If the offence is to be considered serious, then the Government may decide to pass an order of second type. In such a case order is to be passed by the Department of Supply as order passed by this department has to be implemented by all Ministries/Departments.

15. In the instant case, as noted above, before initiating the action against the petitioner firm the Railways apprised and consulted the DGS&D. The Railways enquired from the DGS&D as to whether any action had been taken by the department on the basis of show cause notice issued by the CCE. Vide order dated 29th June, 1998, the DGS&D informed the Railways that no such action had been taken by it. It is only thereafter the Railways issued show cause notice dated 29th December, 1998. The DGS&D was thus aware of the nature of allegations against the petitioner firm. It was made aware of the fact that the Railways wanted to initiate action against the petitioner firm on the basis of the said allegations. The DGS&D did not inform the Railways that the allegations were serious enough which needed banning by second type i.e. 'banning by all Ministries'. On the other hand, by letter dated 29th June, 1998 the DGS&D gave tacit consent to the Railways to proceed in the matter and thus clearly treated it to be a case of 'banning by one Ministry'. It is only when the Railways issued show cause notice dated 29th December, 1998, eliciting reply thereto and passed banning order dated 5th May, 1999 that the DGS&D started action by issuing show cause notice dated 7th September, 1999. As noted above, para 13 of the Code talks of two types of banning orders and if the offence is not considered serious order of 'banning by one Ministry' has to be passed and if the offence is considered to be serious it is covered by any of the grounds mentioned in para 16, i.e. order of 'banning by all Ministries' is to be passed. One thing which clearly emerges from the reading of these provisions is that order of both types cannot be passed simultaneously. If banning of first type is resorted to, namely, 'banning by one Ministry', thereafter order of second type for 'banning by all Ministries', is not to be passed. In the instant case, it is also clear that, as already pointed out above, before initiating action the Railways consulted the DGS&D and the DGS&D allowed the Railways to proceed in the matter, rather than initiating the action for passing a banning order of the second type. In these circumstances, after passing the banning order of first type, impugned order which is an order of second type for banning by all Ministries would clearly amount to double jeopardy.

16. Learned Counsel for the respondents argued that para 16 enumerates the grounds on which an order of second type can be passed and the allegations against the petitioner firm were serious enough to justify the banning order of second type, particularly having regard to the ground (iii) of para 16. It cannot be doubted that on the allegations against the petitioner firm, case could be made out for passing an order of second type for banning business dealings with the petitioner firm. However, knowing fully well these allegations, the respondents in their wisdom thought it fit to initiate the action of passing an order of the first type for banning business relations with the petitioner firm. Having chosen this course of action, it would not be proper on the part of the respondents to allege the seriousness of the allegations and contend that as the petitioner firm is guilty of malpractices of serious nature, impugned action is justified.

17. Learned Counsel for the respondents submitted that the impugned order has been passed by the respondents in the administrative sphere of its jurisdiction and judicial review of such an action is limited. He referred to the judgment of the Supreme Court in the case of Tata Cellular v. Union of India in this behalf. There cannot be any quarrel about this proposition. It goes without saying that judicial review is concerned with reviewing not the merits of the decision but the decision making process. This Court is not to sit as Court of Appeal but has to merely review the manner in which the decision was made. It is exactly this exercise which is undertaken here. The manner in which the decision has been made by the respondents is impermissible and found to be blemished, namely, after passing the order of banning for the first type, the respondents were precluded from passing another order of banning of second type and still the respondents ventured to take this action.

18. It has already been noted above that learned Counsel for the petitioner had also argued that the punishment imposed, i.e. banning for a period of five years was very harsh. Learned Counsel for the respondents, on the other hand, submitted that keeping in view the seriousness of the allegations the quantum of punishment was decided by the Appropriate Authority and this Court would not normally substitute its own conclusion of penalty and impose some other penalty unless the punishment was "outrageous" or in defines of logic as held by the Supreme Court in the cases of Union of India and Anr. v. G. Ganayutham, , B.C. Chaturvedi v. Union of India and Ors., and Om Kumar and Ors. v. Union of India, VIII (2000) SLT 463-AIR 2000 SC 3689.

19. However, it is not necessary to deal with this aspect in view of the finding that the second type of order passed by the respondents was not permissible after an order of banning of first kind and, therefore, amounted to double jeopardy. The impugned order warrants to be quashed on this ground.

20. This writ petition is allowed. Rule is made absolute. Impugned order is hereby quashed.

21. There shall be no order as to costs .