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1972 DIGILAW 179 (KAR)

C. VEERA CHOWDAIAH v. STATE OF MYSORE

1972-07-31

DATAR, GOVINDA BHAT

body1972
DATAR, J. ( 1 ) IN this writ petition the short question that arises for consideration is whether the punishment imposed, withholding increment for a period of two years with cumulative effect is a major punishment or a minor punishment. It arises in this way. ( 2 ) PETITIONER who was working as supervisor in No. 4, Sub-Division, No. 1, brc Division, Bhadra Reservoir Project was by the order issued by the state Government on the 16th of November 1968 held to be guilty of the charges (b) and (c ). In the said order the punishment imposed against the petitioner was the withholding of three increments permanently and recovering a sum of Rs. 5,000. It is this order that is assailed in the present writ petition. ( 3 ) THE State Government on the 5th of June 1964 ordered holding of a departmental enquiry and appointed the Superintending Engineer (Designs) as Enquiry Officer under Rule 11 (2) of the CCA. Rules. The enquiry Officer conducted the enquiry and submitted his report. Thereafter the State Government consulted the Public Service Commission and passed an order as stated above. ( 4 ) IN this writ petition it is contended on behalf of the petitioner that as the penalty imposed on the petitioner was a major penalty, the State Government was bound to comply with the requirements of Rule 11 (9) to (11) of the Rules. It was stated that the state Government did not pass an order recofding its finding and give a notice to the petitioner as required by the rules. It was further submitted that in any event, even assuming that the penalty imposed is a minor penalty, it was necessary for the State Government to have followed the requirements of Rule 11 of the Rules and for the purpose of following rule 11, the State Government ought to have given a show cause notice along with a copy of the enquiry report and given an opportunity to him to make a representation. The consideration of the representation of the delinquent officer by the Disciplinary Authority was a mandatory requirement and as that had admittedly been not done, the order was unsustainable. ( 5 ) THIS Court in the case of J. Issac v. Director of Collegiate Education, wp. 2601 of 1963. had occasion to consider a question similar to the one that arises in this writ petition. ( 5 ) THIS Court in the case of J. Issac v. Director of Collegiate Education, wp. 2601 of 1963. had occasion to consider a question similar to the one that arises in this writ petition. The petitioner in that writ petition who was the Physical director in the Training College at Gulbarga was, as a result of the disciplinary proceedings, ordered to suffer two increments having the effect of the postponement of his future increments. The penalty imposed was challenged on the ground that it imposes a major punishment as contemplated in Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) rules, 1957, and since the procedure prescribed in imposing penalty had not been followed, the order was illegal and liable to be quashed. This court considering this argument stated thus:" The question therefore, is, whether the punishment imposed on the petitioner falls under the category of major penalty or not. Rule 8 of the rules referred to above states the nature of the penalties that may be imposed on Government Servants. Penalties specified in clauses (i), (ii), (iii) and (iv) are minor penalties. The penalties specfied in clauses (v), (vi), (vii) and (viii) are of the nature of major penalties. The contention of Mr. Tyengar was that the punishment imposed on the petitioner falls under clause (v) while the contention of the learned Government Pleader was that it falls under clauses (iii) of Rule 8. Clause (iii) mentions ' withholding of increments or promotion', and clause (v) mentions 'reduction to lower time-scale, or to a lower stage in a time-scale. It is not the case of the petitioner that there is a reduction to any lower service grade or post. His case is that there is a reduction to a lower stage in a time-scale. " ( 6 ) THEREAFTER it was stated that the effect of the order was not only that the increments due to him on 9-4-1961 and 9-4-1962 shall not be paid but that he will have to start on 10-4-1962 on the same pay that he was drawing before 9-4-1961. Then it was further observed that " In substance, so far as the service of the petitioner is concerned, the hand of the clock is put back by two years as though he was not in service for two years for the purpose of computation of increments ". Then it was further observed that " In substance, so far as the service of the petitioner is concerned, the hand of the clock is put back by two years as though he was not in service for two years for the purpose of computation of increments ". The position in the present case is also similar. The order specifically states that the increments are withheld for for a period of three years affecting the future increments. The result, therefore, will be that so far as the petitioner is concerned, the hand of the clock is put back for three years as though he was not in service for three years, for the purpose of computation of increments. If the effect of the order is the reduction of the petitioner to a lower stage, in the time scale, it necessarily means the imposition of a major penalty, as sepcified in the Rules. The imposition of such a penalty imposed contrary to the rules framed under the proviso to Art. 309 of the Constitution of India is liable to be quashed. ( 7 ) IT was however argued by the learned Government Pleader that the view taken by this Court in the case of J. Issac v. Director of Collegiate education (1), is not good law having regard to the decision of the Supreme court in the case of State of Punjab v. Kishan Das, AIR. 1971 SC. 766. . In that case their Lordships of the Supreme Court were considering the question as to whether the forfeiture of approved service resulting in loss of higher salary or reducing chances of promotion was a reduction in rank within the meaning of Art. 311 of the Constitution of India. The Supreme Court was not dealing with the question as to "whether the penalty imposed in a particular case was a major or a minor penalty within the meaning of the rules. In so far as the State of Mysore is concerned, penalties are, as already stated, classified into two categories; one is major penalty and the other is minor penalty. Different procedures have been laid down by the rules under the proviso to Art. 309 of the Constitution of India for the imposition of the penalties. In so far as the State of Mysore is concerned, penalties are, as already stated, classified into two categories; one is major penalty and the other is minor penalty. Different procedures have been laid down by the rules under the proviso to Art. 309 of the Constitution of India for the imposition of the penalties. What is alleged in the present case is that since the penalty imposed was major penalty as defined under the rules, procedure laid down under the rules was required to be followed. The question similar to the one, that arises in this case did not arise in the case of State of Punjab v. Krishan Das (2 ). Therefore, that decision is inapplicable. ( 8 ) EVEN assuming that the penalty imposed upon the petitioner is a minor penalty, in our view, the order passed in the present case is liable to be quashed as it has been passed offending the principles of natural justice. It is necessary to note that after the report of the enquiry officer was submitted to the State Government the present order was issued accepting the report without giving an opportunity to the petitioner to make his representation. Under the rules, both under Rule 11 as also under Rule 12 it is necessary that the official must be given an opportunity to make a representation against the action that the Government proposed to take. ( 9 ) THE disciplinary authority in the present case is the State Government and so the State Govt. was required to give an opportunity to the petitioner to make his representation. When the Government wants to accept the report of the enquiry officer and base its decision solely on that, the official is entitled to know what is it that he has to meet. Thus it is established that the order is opposed to the principles of natural justice. In that situation we consider it appropriate to allow this writ petition and quash the order dt. the 16th November 1968. It is ordered accordingly. No costs. --- *** --- .