Sadanand Pandey v. Chief Secretary to Government of U. P
1992-11-12
A.K.BANERJI, V.N.KHARE
body1992
DigiLaw.ai
JUDGMENT V.N. Khare, J. - By means of this petition under Article 226 of the Constitution the petitioner, who is a professor and Head of Department of Applied Sciences in the College known as Madan Mohan Malviya Engineering College, Gorakhpur (hereinafter referred to as the College) challenges the minor punishments awarded to him by order dated 12th June, 1991. 2. The College is fully owned and controlled by the State Government and run by the society knows as Madan Mohan Malviya Engineering College Society (hereinafter referred to as Society). The College imparts education in different branches of Engineering and Technology and is affiliated to the Gorakhpur University. 3. The petitioner was initially appointed as Associate Lecturer in the department of Applied Sciences and subsequently was promoted to the post of Reader and thereafter became professor in the department of Applied Sciences. A inspection committee visited the College on 1st and 2nd of the February, 1991 and in that connection various Heads of the departments including petitioner submitted reports containing their achievements shortcomings and demands etc., before the Inspection Committee. During this meeting, petitioner alleges that a member of the Committee used indecent language to which he objected and pressed him to tender apology. Whereas {he case of the respondents is that in fact it was the petitioner, who misbehaved much with Dr. A.K. Vashistha and used indecent words and acted in indisciplined manner, with the result the Committee could not complete the inspection. We need not go into this controversy as it is subject matter of departmental enquiry. It appears that due to that incident which took place before the inspection committee petitioner was suspended by order dated 6th February, 1990, as the respondents contemplated to hold a departmental disciplinary proceeding against him. Subsequently the petitioner was served with a charge-sheet dated 19/21st February, 1991. By the said charge-sheet petitioner was required to furnish his explanation to the charges levelled against him before the Inquiry Officer. Petitioner was further informed that if he wants to avail opportunity of personal hearing or to examine witnesses in his defence, he may inform in respect thereof to the Inquiry Officer. The petitioner on 3rd March, 1991 submitted an explanation to the charges levelled against him and in the said explanation he expressed his desire to avail opportunity of personal hearing as well as examine and cross examine the witnesses.
The petitioner on 3rd March, 1991 submitted an explanation to the charges levelled against him and in the said explanation he expressed his desire to avail opportunity of personal hearing as well as examine and cross examine the witnesses. It appears that after the receipt of the explanation, the Inquiry Officer submitted his report to the State Government without giving any opportunity to the petitioner of personal hearing or opportunity to examine witnesses in his defence. It further appears that the State Government agreed with the report of Inquiry Officer and inflicted minor punishments to the petitioner in respect of his indecent behaviour with the members of the Inspection Committee by order dated 12th June, 1991. It is this order which is impugned in this petition. By the impugned order the three minor punishments were awarded to the petitioner. Firstly one increment of the petitioner has been withheld permanently, secondly an adverse entry and warning was directed to be incorporated in the Character roll of the petitioner and thirdly in future the petitioner was relieved from the office of the Head of department, being not competent to occupy the said office. 4. Learned counsel appearing for the petitioner made three submissions, against the minor punishment awarded to the petitioner. The first submission is that withholding of the increment permanently is not a minor punishment and in fact it is a major punishment and since the procedure prescribed for awarding major punishment having not undergone, the said punishment is illegal and deserves to be quashed. The second submission is that since the proceeding for inflicting minor punishment is quasi judicial proceeding the State Government ought to have given reasons in its order awarding minor punishments to the petitioner. Since the impugned order does not contain any reason, the order is illegal and not sustainable in the eye of law. And, thirdly, the punishing authority having initiated departmental proceedings for awarding major punishment to the petitioner it was obligatory on its part to have conducted the inquiry as contemplated in proviso to clause Vil of Rule 14 of the Rules which provides the procedure to be followed for awarding major penalties and since the petitioner was not given reasonable opportunity of showing cause of the action proposed to be taken against him as contemplated in proviso to Clause VII of Rule 14 of the Rules the impugned order is illegal. 5.
5. Learned counsel appearing for the respondents argued that the withholding of one increment permanently is minor punishment and the same was awarded to him after giving opportunity to furnish his explanation and it was not necessary for the punishing authority to give him an opportunity of showing cause. And, further it is no requirement of law that the punishing authority should give reasons in its order while awarding minor punishments to a delinquent officer. We will take up the arguments in seriatim. 6. So far as the first argument is concerned, learned counsel in support of his contention relied upon the decision of Supreme Court in the case of Kulwant Singh Gill v. State of Punjab 1990 (61) FLR 635 . There is no dispute that Rule 14 of the Rules deals with penalties which may be awarded to the delinquent officer. It is therefore, necessary to extract Rule 14 of the Rules: "Rule 14. The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on any member of the Staff; (i) Censure. (ii) Withholding of increments or promotion. (iii) Recovery of the whole or part of the pecuniary loss caused to the College by negligence; or breach of orders; (iv) Reduction to a lower service, grade or post or to a lower time scale or to a lower stage in a time scale; (v) Compulsory retirement; (vi) Removal from service which shall not be a disqualification for future employment under the College; (vii) Dismissal from service which shall be a disqualification for the future employment under the College; provided that no order imposing on any member of the staff of the penalties specified at (i), (ii) and (iii) above shall be passed by any authority subordinate to that by which he was appointed and unless the member of the staff concerned has been given an opportunity to make representation to the appointing authority: Provided further that no order imposing on any member of the staff, penalties specified at (iv) to (vii) above shall be passed by any authority subordinate to that by which he was appointed and except after an enquiry has been held and the member of the staff has been given reasonable opportunity of showing cause of the action proposed to be taken in regard to him".
A perusal of the rule would show that withholding of increments of pay has been treated as minor punishment but if the penalty is reduction to a lower service, grade or post or to a lower time scale or to a lower stage in a time scale it is treated as major penalty under clause (iv) of Rule 14 of the Rules. In view of this the question which requires consideration is as to whether withholding of one increment permanently is a minor penalty or tantamount to a major penalty. If it is held that it is major penalty, admittedly, the procedure required for awarding major penalties has not been complied with, the result such punishment would liable to be set aside. Under Rule 14 the penalties under Clause (i), (ii) and (iii) can be given which are the minor penalties, by giving opportunity to the delinquent officer to make representation to the appointing authority, whereas penalties under clause (iv), (v), (vi) and (vii) can only be given after delinquent officer has been given reasonable opportunity of showing cause of the action proposed to be taken in regard to him. No doubt withholding of increments of pay simplicitor is minor penalty within the meaning of clause (ii) of Rule 14 of the Rules. But sub-clause (iv) provides for reduction to a lower service, grade or post or to a lower time scale or in lower stage in a time scale, let us take a case where one increment of delinquent officer is permanently withheld. It means one increment earned by the petitioner which has been permanently withheld as minor punishment, is lost for ever in his upward march of earning higher scale of pay. The result will be that, the petitioner has been reduced to lower stage in time scale of pay. If the effect of loss of one increment is to reduce the petitioner in lower stage in the time scale, it would amount a major punishment within the meaning of clause (iv) of Rule 14 of the Rules. We are, therefore, of opinion that withholding one increment of the petitioner permanently amounts to reduction to a lower stage in the time sale, which is major punishment. Admittedly the procedure prescribed for awarding major punishment having not undergone, the order of punishment withholding the petitioner's increment permanently deserves to be quashed. 7.
We are, therefore, of opinion that withholding one increment of the petitioner permanently amounts to reduction to a lower stage in the time sale, which is major punishment. Admittedly the procedure prescribed for awarding major punishment having not undergone, the order of punishment withholding the petitioner's increment permanently deserves to be quashed. 7. Now, we will take up the second argument of the learned counsel for the petitioner, namely that while awarding minor punishment the punishing authority is required to give reasons in its order of punishment. Learned counsel for the petitioner in support of his submission has relied upon the decision of Supreme Court in the case of State of Punjab v. Bakhtawar Singh & Ors. AIR 1972 SC 2083 and decision of a learned Single Judge of Andhra Pradesh High Court in the case of G. Papaiah v. Assistant Director Medical Services, Secunderabad AIR 1976 AP 75 . But the question is as to whether in each case punishing authority is required to give reasons in its order inflicting minor punishment? In the case of Bhawani Shanker Sharma v. Union of India 1974 Vol. 11 SCC 9, it was held that while giving minor penalty of withholding increment it was not necessary to inform to the delinquent officer of the reasons for coming to the conclusion for inflicting minor penalty. Take a case where increment is withheld as a measure of minor penalty on the basis of delinquent officer's service record. In such a case what possible reasons can be given except the conclusion in the order of penalty. Similarly, if minor penalty given to the delinquent officer is passed upon the opinion formed by the superior officer in such case also reason is not required and the conclusion of the officer is enough in the order of minor penalty, as the inefficiency is some thing which cannot be concertised. In view of the decision of Supreme Court in the case of Bhawani Shanker Sharma (supra) we are unable to accept the broad proposition of law as submitted by the learned counsel for the petitioner that punishing authority in each case where minor penalty inflicted should give reasons in his order of punishment. But there may be case where reasons may be necessary in the order imposing minor penalty. The decision of Supreme Court in the case of State of Punjab v. Bakhtawar Singh & Ors.
But there may be case where reasons may be necessary in the order imposing minor penalty. The decision of Supreme Court in the case of State of Punjab v. Bakhtawar Singh & Ors. (supra) related to an order of removal of a member of Punjab Electricity Board from the office of the member without giving any opportunity to him and in that context Supreme Court held that the order of removal should be speaking order, therefore, it is distinguishable. Similarly the learned Single Judge of Andhra Pradesh High Court in the case of G. Papaiah, (supra) did not take notice to the earlier Supreme Court decision of Bhawani Shanker Sharma, (supra), therefore, this case is not helpful to the petition. But the position would be different if rule requires giving of reasons in the order inflicting minor punishment or if rule provides that the penalty may be given for good and sufficient reasons. We, therefore, again look into the provisions of the rule as to whether there is any requirement of giving reason in the order awarding minor punishment. We have earlier quoted Rule 14 of the Rules dealing with the punishment to a delinquent officer but at the cost of the repetition it is necessary to reproduce the relevant extract of Rule 14 of the Rules: Rule-14: "The following penalties may, for 'good and sufficient reasons' and hereinafter provided be imposed on any member of the Staff; 1 ......................................... 2. Withholding of increments or promotion". The above rule shows that a penalty can be imposed upon a delinquent officer only for "good and sufficient" reasons. The existence of "good and sufficient" reasons can only be found out from the order of awarding minor punishments. (See 1971 LIC 201, Dr. B.K. Talwar v. State of Haryana & Ors. The good and sufficient reasons necessarily has to be demonstrated in the order of punishment. While giving good and sufficient reasons the punishing authority is not required to give exhaustive judgment and meet each and every contentions raised in the explanation. The order imposing penalty should refer to the materials and also the process by which the officer reaches to the conclusion that the employee deserves punishment. In nut- shell the "good and sufficient" reasons should be manifest in the order itself and only then there would be compliance of the rule.
The order imposing penalty should refer to the materials and also the process by which the officer reaches to the conclusion that the employee deserves punishment. In nut- shell the "good and sufficient" reasons should be manifest in the order itself and only then there would be compliance of the rule. 11 the good and sufficient reason is absent in the order imposing minor punishment the order of punishment is not sustainable in law. In the present case, the impugned order does not refer any material or application of mind, there-fore, the impugned order inflicting minor penalties to the petitioner can be said to be for good and sufficient reasons. In view of this the impugned order deserves to be quashed. 8. Sri Upadhyay, learned counsel argued that so far as penalties No. 2 and 3 are concerned, the petitioner has been given opportunity to furnish his explanation. Thus, these two penaities are sustainable. No doubt, the order directing for adverse entry excluding censure and relieving the petitioner from the office of the Head of the department as being incompetent, cannot be treated as minor penalties within the meaning of Rule 14 of the Rules and they could have been given on the administrative side. The impugned order and the counter affidavit disclose that the adverse entries in the character roll of the petitioner and relieving the petitioner from the office of the Head of the department has been inflicted as a measure of minor punishment. In view of this, these minor punishments have also to be adjudged on the same principle of law oo which other minor punishment is required to be tested. We have earlier held that the minor penalties can only be given if good and sufficient reasons are demonstrated in the order of minor punishment. Since the order does not give good and sufficient reason, the whole impugned order must go. 9. So far as third submission of the learned counsel for the petitioner is concerned, it is not free from doubt, since writ petition is liable to be succeed, on first two points, we are not disposed to enter into the third submission of the learned counsel for the petitioner. In view of the above discussions, we quash impugned order dated 12th June, 1991 inflicting minor punishments to the petitioner.
In view of the above discussions, we quash impugned order dated 12th June, 1991 inflicting minor punishments to the petitioner. However, it will be open to the respondents to proceed against the petitioner either for minor penalty or major penalty in accordance with the procedure as laid down in the Rules. 10. The writ petition is allowed with costs.