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2004 DIGILAW 201 (HP)

RANGILA RAM v. STATE OF H. P.

2004-08-25

NARINDER SINGH THAKUR

body2004
ORDER Narinder Thakur, Honble Vice Chairman: The present Original Application is third sequel of earlier two O.S. As. Earlier the applicant filed OA No. 2235/1994 and this Tribunal directed the same to be treated as a representation to the Secretary (Law) and in the meanwhile the operation of impugned order was stayed. The Secretary Law considered and rejected the same. Against the order of rejection the applicant filed second OA No. 25/1995. In Second Original Application this Tribunal quashed the impugned order under challenge by holding the penalty of removal too harsh and issued further directions to re-instate the applicant with all the consequential benefits and impose and minor penalty. No appeal or writ petition was filed by the respondents against this order of 6.1.2000 passed by this Tribunal and the same has thus attained finality. However, the respondents imposed penalty of stoppage five increments with cumulative effect from respective dates i.e. from 20.9.1994 vide impugned order in the present Original Application dated 12.10.2000 Annexure/A/5. 2. Thus the moot question for my adjudication is that whether the impugned penalty is in consonance with the directions issued by this Tribunal on 6.1.2000. 3. Rule 11 of the CCS (CCA) Rules governs provisions with regard to nature of penalties. Minor penalties are provided under sub-rule (i) (iv) and major penalties are provided under sub-rules 5(xi). The impugned penalty imposed upon the applicant is of nature provided under sub rules (v) (vi) as such the same is major penalty in nature. It has been so held by various Honble High Courts and Honble Apex Court that the penalty of nature of stoppage of increments with cumulative effect is major penalty. These judgments are: (a) 1981 (2) SLR 807 (Cal. Food Corporation of India vs. State of West Bengal:- "6. Rule 8 of West Bengal rules lays done the penalties which may be imposed on the Government servant. Sub rule (ii) of the said rules provides: "Withholding of increments or promotions. These judgments are: (a) 1981 (2) SLR 807 (Cal. Food Corporation of India vs. State of West Bengal:- "6. Rule 8 of West Bengal rules lays done the penalties which may be imposed on the Government servant. Sub rule (ii) of the said rules provides: "Withholding of increments or promotions. No where in rule 8 is there such a penalty as withholding of increments with cumulative effect that withholding of increment simplicitor and withholding of increment with cumulative effect have different meanings and implication would be apparent on a reference to rule 16 (1a) of the Central Civil Services (Classification and Control) Rules, 1965 which provides both for withholding of increment of pay for a period exceeding three years of withholding of earned of pay with commutative effect for any period. As such I am of the view that the Regional Manager by imposing the penalty of stoppage of 5 increments with cumulative effect on the petitioner acted beyond the powers given to him by the West Bengal Rules. As such, the said order, copy being annexed D to the petition, and the appellant order passed subsequently thereto, have to be set aside." (b) 1982 (2) SLJ 62 (P & H) Punjab State vs. Ram Lubhaia:- "6. The next question would be whether both the penalties would be minor penalties and come within the preview of sub rule (iv) or only the first one would come within sub rule (iv). A comparative reading of sub rule (iv) and (v) shows that while sub rule (iv) only withholding of increments of pay is permissible, under sub rule (v), which is a major penalty, there is reduction to a lower stage in the time-scale of pay for a specified period and it is to be specified in order whether the employee will be earning increments during the period of reduction and whether the reduction will or will not have the fact of postponing the future increments of his pay. As provisions has been made in sub rule (v), similar provisions could have been made in sub rule (iv) also, if different eventualities was considered to flow by passing different kinds of orders and in that case the rule framer would have specifically provided so. As provisions has been made in sub rule (v), similar provisions could have been made in sub rule (iv) also, if different eventualities was considered to flow by passing different kinds of orders and in that case the rule framer would have specifically provided so. On the liberal reading of sub rule (iv) as also practical application of same, so far, it is not disputed done behalf of the state that if simple order 6f withholding of increments of pay is passed then such an order does not amount to withholding of increments with cumulative effect. It appears that the rule framers only wanted to provide imposition of minor penalties under sub rule (iv) of withholding of increments without cumulative effect so that there is temporary loss to the employee not having a permanent effect on his increments, whereas sub rule (v) provides for making a permanent loss in the increments and that is why it was included in the category of major penalties. Similar point arose before a Division Bench of Maysoor High Court and Single Bench of Calcutta High Court and they also come to the conclusion that the imposition of penalty of withholding of increments with cumulative effect is different from the penalty of withholding of increments from non-cumulative effect that has for reaching consequences. Reference in this connection may be made to (i) C. Verra Chowdaiah vs. State of Bihar and another, and (ii) Alakendu Sarkar vs. State of West Bengal and others. I am in agreement with the aforesaid two decisions and conclude that withholding of increments with cumulative effect would not be covered by sub rule (iv) and may fall under sub rule (v) and, therefore, would not be a minor penalty For the reasons record above I answer the point in for affirmative and hold that the stoppage of increment with cumulative effect is a major punishment. Accordingly appeal is dismissed with cost. (c)1991 Suppl. (1) SCC 504 Kulwant Singh Gill vs. State of Punjab. 4. Withholding of increments of pay simplicitor 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 period with further direction as to stage in the time scale of pay for a specified period with further directions as to whether or not the Govt. employees shall earn increments of pay during the period of such reduction and whether on the expiry such period of reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as a punishment in an appropriate case. "It is one of major penalty... ." 5. Similarly, Honble Apex Court in the judgment reported in 1995 Supl. (4) SCC 433 Mohinder Singh vs. State of Punjab has held that stoppage increments with cumulative effect is a major penalty. 6. It is well settled position of law by the Honble Apex Court as well as various High Courts of the country that stoppage of increments with cumulative effect is a major penalty. Further the imposition of a major penalty with retrospective effect that is w.e.f. 20.9.1994 is otherwise against law and is not sustainable as it resulted in double jeopardy affected promotional avenues to the applicant. No major penalty could be imposed with retrospective effect. Moreover, in the present case, this Tribunal had ordered the release of all withheld benefits vide judgment dated 6.1.2000 and the applicant had drawn all the annual increments due and admissible to him till then and even thereafter, which could and should not be withdrawn from the applicant by impugned order dated 12.10.2000 (Annexure-A/5). The learned counsel for the applicant submits that the applicant has already been retired from service and the impugned order imposing punishment of stoppage of five increments with retrospective effect, is liable to the quashed and set aside. 7. In view of the foregoing reasons, the present Original Application is allowed and the impugned order dated 12.10.2000 contained in (Annexure-A-5) is quashed and set aside being not in consonance with the directions of this Tribunal in OA No. 25/1995 issued on 6.1.2000. It will be quite equitable, just and fair, looking to the multiplicity of litigations to which the applicant has already been put to give quietus to the matter at this stage itself by restraining respondents from taking any further action against the applicant. With these observation the Original Application is disposed of with no order as to costs.