Kulwant
Singh Gill Vs. State of Punjab [1990] INSC 280 (13 September 1990)
Ramaswamy,
K. Ramaswamy, K. Kania, M.H. Saikia, K.N. (J)
CITATION:
1990 SCR Supl. (1) 426 1991 SCC Supl. (1) 504 JT 1990 (4) 70 1990 SCALE (2)597
ACT:
Civil
Services: Punjab Civil Services (Punishment and
Appeal) Rules, 1970: Rules 5(iv), 5(v), 8 and 9--Penalties --Withholding of
increments with cumulative effect--Whether amounts to major penalty --Procedure
to be followed in such cases.
HEAD NOTE:
The
appellant, while working as Inspector, Food and Supplies, was found to have
purchased sub-standard wheat and hence chargesheeted for misconduct. He
submitted his expla- nation. Though Rules 8 and 9 of Punjab Civil Services
(Punishment and Appeal) Rules, 1970 envisage the procedure to conduct an
enquiry into the misconduct, the disciplinary authority, only on considering
the explanation, found that that the appellant committed a minor misconduct.
According- ly, an order was passed for stoppage of two increments with
cumulative effect. Appellant filed a suit for declaration that the said order
imposed a major penalty which was ille- gal in the absence of an enquiry under
Rules 8 and 9. The Trial Court granted a decree invalidating the said order.
On
appeal, the District Court confirmed the decree.
However,
on second appeal, the High Court held that the penalty imposed was a minor
penalty within the meaning of Rules 5(iv) of the Rules obviating the need to
make regular enquiry. Aggrieved, the appellant has preferred this appeal, by special
leave.
Allowing
the appeal,
HELD:
1. Withholding of increments of pay simpliciter without any hedge over it
certainly comes within the meaning of Rule 5(iv) of the Punjab Civil Services
(Punishment and Appeal) Rules. But when penalty was imposed withholding two
increments i.e. for two years with cumulative effect, it would indisputably
mean that the two increments earned by the employee was cut off as a measure of
penalty for ever in his upward march of earning higher scale of pay. In other
words the clock is put back to a lower stage in the time- scale of pay and on
expiry of two years the clock starts working from that stage afresh. The insi-
427 dious effect of the impugned order by necessary implication, is that the
appellant-employee is reduced in his time-scale by two places and it is in
perpetuity during the rest of the tenure of his service with a direction that
two years' increments would not be counted in his time-scale of pay as a
measure of penalty.
2.
Rule 5(iv) does not empower the disciplinary authori- ty to impose penalty of
withholding increments of pay with cumulative effect except after holding
inquiry and following the prescribed procedure. Then the order would be without
jurisdiction or authority of law, and it would be per se void. Considering from
this angle the impugned order would come within the meaning of Rule 5(v) of the
Rules, and the imposition of major penalty without enquiry is per se ille- gal.
Sarwan Singh v. State of Punjab & Ors., ILR 1985 2 P & H 193,
overruled.
3.
Rules 8 and 9 admittedly envisage, on denial of the charge by the delinquent
officer, to conduct an enquiry giving reasonable opportunity to the presenting
officer as well as the delinquent officer to lead evidence in support of the
charge and in rebuttal thereof, giving adequate opportunity to the delinquent
officer to cross-examine the witnesses produced by the Department and to
examine witness- es if intended on his behalf and to place his version;
consideration
thereof by the enquiry officer, if the disci- plinary authority himself is not
the enquiry officer. A report of the enquiry in that behalf is to be placed
before the disciplinary authority who then would consider it in the manner
prescribed and pass an appropriate order as per the procedure in vogue under
the Rules. The gamut of this proce- dure was not gone through. Therefore, the
issuance of the notice and consideration of the explanations not a procedure in
accordance with Rules 8 and 9.
4. The
Trial Court rightly granted the decree, and it is restored. The judgment and
the decree of the High Court is vitiated by manifest illegality and is set
aside. At this distance of time it is not expedient to direct an enquiry under
Rules 8 and 9 of the Rules.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No 2960 of 1987.
From
the Judgment and Order dated 18.2. 1986 of the Punjab & Haryana High Court
in R.S.A. No. 3204 of 1984. 428 0 K. Khuller and R .C. Kohli for the Appellant.
C.M. Nayar
for the Respondent.
The
Judgment of the Court was delivered by K. RAMASWAMY. J. This appeal by special
leave is against the judgment and decree dated February 18, 1986 in Second Appeal No. 3204 of 1984 of Punjab & Haryana
High Court at Chandigarh. The appellant/plaintiff while was
working as Inspector. Food and Supplies at Algaon. the Director. Food and
Supplies. Punjab on June 10. 1976 visited the place
and found him to have purchased sub-standard wheat landing him in receiving a
charge sheet on June 29. 1976 for his miscon- duct. The appellant had submitted
his explanation. Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules. 1970 for short 'the
Rules' envisage the procedure to conduct an enquiry into the misconduct. But
the disciplinary authority. on consideration of the explanation found that the
appellant committed a minor misconduct. Accordingly by order dated April 12.
1977 directed stoppage of two incre- ments with cumulative effect. The
appellant laid the suit for a declaration that the offending order amounts to
major penalty and imposition thereof without conducting enquiry as enjoined
under Rules 8 and 9 is illegal. On contest by the respondent state, the trial
court held that the impugned order amounts to major penalty and granted a
decree invali- dating the order. On appeal, though the Distt. Court con-
firmed, on further Second Appeal the High Court held it to be minor penalty
within the meaning of Rule 5(iv) of the Rules obviating the need to make
regular enquiry. Assailing the legality thereof this appeal has been filed.
The
only question that needs decision is whether stop- page of two increments with
cumulative effect is a major penalty'? Admittedly Rules 8 and 9 envisage
conducting an enquiry into misconduct after giving an opportunity to the
delinquent employee in the manner prescribed therein and on establishing the
charge to pass an appropriate order impos- ing a major penalty prescribed in
either clauses V to IX or minor penalty under clauses I to IV of Rule 5 of the
Rules.
If it
is a minor penalty indisputably the need to conduct regular enquiry has been
dispensed with. Rule 5 prescribes the penalties thus:
"5.
Penalties:--The following penalties may, for good and sufficient reasons. and
as hereinafter provided. be imposed on a Government employee. namely:
429
Minor Penalties (i) Censure;
(ii) withholding
of his promotions;
(iii) recovery
from his pay of the whole or part of any pecuniary loss caused by him to the
Government by negligence of breach of orders;
(iv) withholding
of increments of pay;
Major
Penalties (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 Government
employee will earn increments of pay 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, post or service which shall
ordinarily be a bar to the promotion of the Government employee to the
time-scale of pay, grade, post or service from which he was reduced, with or
without further directions regarding conditions of restoration to the grade or
post or service from which the Government employee was reduced and his
seniority and pay on such restoration that grade, post or service;
(vii) compulsory
retirement;
(viii)
removal from service which shall be a disqualifica- tion for future employment
under the Government;
(ix) dismissal
from service which shall ordinarily be a disqualification for future employment
under the Govern- ment'.
Clauses
VI to IX are not relevant to the facts of the case.
Withholding
of increments of pay simpliciter undoubtedly is a minor penalty within the
meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage
in the time-scale of pay for a specified 430 period with further directions as
to whether or not the Government employee shall earn increments of pay during
the period of such reductions 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. It is an inde- pendent head of penalty and it could be imposed as
punish- ment in an appropriate case.
It is
one of the major penalties. The impugned order of stoppage of two increments
with cumulative effect whether would fall within the meaning of Rule 5(v)? If
it so fails Rules 8 and 9 of the Rules require conducting of regular enquiry.
The contention of Shri Nayar, learned counsel for the State is that withholding
two increments with cumulative effect is only a minor penalty as it does not
amount to reduction to a lower stage in the time-scale of pay. We find it
extremely difficult to countenance the contention. With- holding of increments
of pay simpliciter without any hedge over it certainly comes within the meaning
of Rule 5(iv) of the Rules. But when penalty was imposed withholding two
increments i.e. for two years with cumulative effect, it would indisputably
mean that the two increments earned by the employee was cut off as a measure of
penalty for ever in his upward march of earning higher scale of pay. In other
words the clock is put back to a lower stage in the time- scale of pay and on
expiry of two years the clock starts working from that stage afresh. The
insidious effect of the impugned order, by necessary implication, is that the appel-
lant employee is reduced in his time-scale by two places and it is in
perpetuity during the rest of the tenure of his service with a direction that
two years' increments would not be counted in his time-scale of pay as a
measure of penalty. The words are the skin to the language which if pealed off
its true colour or its resultant effects would become apparent. When we broach
the problem from this per- spective the effect is as envisaged under Rule 5(v)
of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State
of Punjab & Ors., I.L.R. 1985 2 P & H. 193, P.C. Jain, A.C.J. speaking
for the division bench, while considering similar question, in paragraph 8 held
that the stoppage of increments with cumulative effect, by no stretch of
imagination falls within clause (v) of Rule 5 or in rule 4.12 of Punjab Civil
Services Rules. It was further held that under clause (v) of Rule 5 there has
to be a reduction to a lower stage in the time-scale of pay by the competent
authority as a measure of penalty and the period for which such a reduction is
to be effective has to be stated and on restoration it has further to be
specified whether the reduction shall operate to postpone the future increments
of his pay. In such cases withholding of the increments without cumulative
effect does not at all arise. In case 431 where the increments are withhold
with or without cumulative effect the Government employee is never reduced to a
lower stage of time scale of pay. Accordingly it was held that clause (iv) of
Rule 5 is applicable to the facts of that case. With respect we are unable to
agree with the High Court. If the literal interpretation is adopted the learned
Judges may be right to arrive at that conclusion. But if the effect is kept at
the back of the mind, it would always be so, the result will be the conclusion
as we have arrived at.
If the
reasoning of the High Court is given acceptance, it would empower the
disciplinary authority to impose, under the garb of stoppage of increments, of
earning future incre- ments in the time scale of pay even permanently with ex- pressly
stating so. This preposterous consequences cannot be permitted to be permeated.
Rule 5(IV) does not empower the disciplinary authority to impose penalty of
withholding increments of pay with cumulative effect except after hold- ing
inquiry and following the prescribed procedure. Then the order would be without
jurisdiction or authority of law, and it would be per se void. considering from
this angle we have no hesitation to hold that the impugned order would come
within the meaning of Rule 5(v) of the Rules; it is a major penalty and
imposition of the impugned penalty without enquiry is per se illegal.
The
further contention of Shri Nayar that the procedure under Rule 8 was followed
by issuance of the show cause notice and consideration of the explanation given
by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of
any substance. Conducting an enquiry, dehorse the rules is no enquiry in the
eye of law. It cannot be countenanced that the pretence of an enquiry without
reason- able opportunity of adducing evidence both by the Dept. as well as by
the appellant in rebuttal, examination and cross-examination of the witnesses,
if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules.
Those
rules admittedly envisage, on denial of the charge by the delinquent officer,
to conduct an enquiry giving reason- able opportunity to the presenting officer
as well as the delinquent officer to lead evidence in support of the charge and
in rebuttal thereof, giving adequate opportunity to the delinquent officer to
cross examine the witnesses produced by the Dept. and to examine witnesses if
intended on his behalf and to place his version; consideration thereof by the
enquiry officer, if the disciplinary authority himself is not the enquiry
officer. A report of the enquiry in that behalf is to be placed before the
disciplinary authority who then would consider it in the manner prescribed and
pass an appropriate order as per the procedure in vogue under the Rules. The
gamut of this procedure was not gone through.
Therefore,
the issuance of the notice and consideration of the 432 explanation is not a
procedure in accordance with Rules 8 and 9. Obviously, the disciplinary
authority felt that the enquiry into minor penalty is not necessary and
adhering to the principles of natural justice issued the show cause notice and
on receipt of the reply from the delinquent officer passed the impugned order
imposing penalty thinking it to be a minor penalty. If it is considered, as
stated earlier, that it would be only a minor penalty, the proce- dure followed
certainly meets the test of the principles of natural justice and it would be a
sufficient compliance with the procedure. In view of the finding that the
impugned order is a major penalty certainly then a regular enquiry has got to
be conducted and so the impugned order is clearly illegal. The Trial Court
rightly granted the decree. The judgment and the decree of the High Court is
vitiated by manifest illegality. At this distance of time it is not expedient
to direct an enquiry under rules 8 and 9 of the Rules. The appeal is
accordingly allowed and the judgment and decree of the High Court is set aside
and that of the trial court is restored but in the circumstances without costs.
G.N.
Appeal allowed.
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