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2010 DIGILAW 115 (JHR)

Ranjan Kumar v. Union of India (UOI)

2010-01-21

D.G.R.PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. Heard the learned Counsel for the parties. 2. The petitioner, in this writ application, has prayed for quashing the order dated-28.09.2000 (Annexure-3), whereby the punishment of withholding of annual increments for a period of three years has been passed against the petitioner. The petitioner has also prayed for quashing the order dated-25.07.2001 (Annexure-4), passed by the Appellate Authority dismissing the Appeal preferred by the petitioner against the order of punishment, passed by the Disciplinary Authority. 3. The petitioner is a Sub-Inspector in the Central Industrial Security Force. A departmental enquiry was initiated against him on 03.07.2000 on the charges that he was found indulging in unfair means while appearing at the examinations. The Enquiry Officer had found the petitioner guilty of the charges levelled against him. The copy of the Enquiry Report was furnished to the petitioner and thereafter, finding the show-cause replies of the petitioner, not satisfactory, the Disciplinary Authority imposed the punishment in the following terms:- “Therefore, in exercise of powers conferred upon me under Rule 29(A) read with Schedule-II and Rule 31(e) of C.I.S.F. Rules 1969, I hereby award the penalty of "Withholding of Next Increment for A Period of Three Years to No. NYA SI/Exe (UT) Ranjan Kumar. It is Further Ordered That on Expiry of This Period, The Penalty Will Have The Effect of Postponing His Future Increments of Pay.” 4. The petitioner has challenged the impugned order of punishment on the ground that by the second part of the order, making the penalty to have the effect of postponing the petitioner's future increments of pay, the Respondents have virtually inflicted the punishment of withholding the petitioner's annual increments with cumulative effect and thereby forfeiting the petitioner's right for claiming the benefits of the annual increments for the three years for ever. 5. Learned Counsel for the petitioner informs that vide interim order dated-19.07.2006, while admitting this writ application, this Court had stayed the operation of the second part of the impugned order, during the pendency of the writ application. Consequent upon the order of interim stay, the Respondents have though commenced the payment of increment from the fourth year including release of the increments, which were stopped for the previous three years, but the arrears of the amounts of increments, which was withheld during the past three years, have not been paid to him. Consequent upon the order of interim stay, the Respondents have though commenced the payment of increment from the fourth year including release of the increments, which were stopped for the previous three years, but the arrears of the amounts of increments, which was withheld during the past three years, have not been paid to him. Referring to a Clarification dated-14.10.1992 issued by the Headquarters of the C.I.S.F. (Annexure-6), learned Counsel submits that the Clarification had to be issued pursuant to a judgment of the Andhra Pradesh High Court, which had declared that under the provisions of Rule 31(e) of the C.I.S.F. Rules, 1969, withholding of increments with cumulative effect, is not permissible. The Clarification, therefore, as issued by the Headquarters of the C.I.S.F. had declared that the punishment as per Rule 31(e) of the Rules, should not add the words "with cumulative effect". Learned Counsel submits that though the words "with cumulative effect" has been omitted but in its place, the penalty had been made to have the effect of postponing the future increments of pay, which indirectly amounts to maintain the cumulative effect. Referring yet to the judgment of the Supreme Court in the case of Kulwant Singh Gill Vs. State of Punjab, 1991 Supp (1) SCC 504, learned Counsel submits that withholding of increments with cumulative effect, would amount to a major punishment, which is not permissible under the provisions of Rule 31(e) of the C.I.S.F. Rules. 6. Learned Counsel for the Respondents on the other hand, while adverting to the statements contained in the counter affidavit, submits that the petitioner's contention that the second part of the impugned order amounts to imposing the penalty by way of having cumulative effect, appears to be misconceived. The impugned order of punishment, has been passed in accordance with the provisions of Rule 31(e) read with Rule 40 of the C.I.S.F. Rules, which provides for withholding the annual increments for specified periods. Learned Counsel submits further that the penalty as imposed under Rule 31(e) is a minor punishment. 7. Upon hearing the learned Counsel for the parties and after having gone through the documents on record, I find that the punishment as imposed upon the petitioner has been declared to be under Rule 31(e) of the C.I.S.F. Rules. Rule 31(e) of the C.I.S.F Rules, 1969, which reads as under: "31. Nature of penalties. - (e) withholding of increment or promotion;" 8. Rule 31(e) of the C.I.S.F Rules, 1969, which reads as under: "31. Nature of penalties. - (e) withholding of increment or promotion;" 8. As explained under Rule 34, the punishment under Rule 31(e) is a minor punishment and lays down for withholding of increments or promotion. The provision of Rule 31(e) does not make any further qualifying statement although Rule 40 of the Rules provides that in the case of withholding of increment as a punishment, the order shall state the period for which the increment is to be withheld and whether it shall have the effect of postponing the further increments. Thus, the provisions of Rule 31(e) has to be read in consonance with the provisions of Rule 40. However, the punishment of postponing the payment of annual increments cannot be construed as postponement forever, thereby depriving the C.I.S.F. Personnel of the benefits of the increments forever. The postponement, cannot be interpreted to mean that the Personnel has forfeited his right to claim the benefits of increments for the period withheld, forever. Even in terms of the explanation and observation contained in the judgment of the Supreme Court in the case of Kulwant Singh Gill (Supra) , if the withholding of the increments for a period of three years read together with the second part of the impugned order is intended to mean that the increments earned for the three years by the employee is cut off as a measure of penalty forever and the employee is reduced in his time scale by three places and it is in perpetuity during the rest of tenure of his service, with a direction that the three years' increments would not be counted in his time scale of pay as a measure of penalty, such an interpretation would mean that that the withholding of increments has been made with cumulative effect, which, as observed above, is not envisaged under Rule 31(e) of the C.I.S.F. Rules. It further appears that the impugned order has been passed only under Rule 31(e) of the Rules, and does not advert to the provisions of Rule 40. 9. It further appears that the impugned order has been passed only under Rule 31(e) of the Rules, and does not advert to the provisions of Rule 40. 9. As regards the other issues raised by the petitioner in the writ application relating to certain purported discrepancies in the evidences recorded in the departmental proceeding, which, as claimed by the petitioner, have been ignored by the Enquiry Officer and the Disciplinary Authority as also by the Appellate Authority, I find that these are issues on facts, which have been adequately considered by the Disciplinary Authority as well as by the Appellate Authority. Furthermore, on consideration of the fact that the petitioner has himself admitted the fact of recovery of the chits of notes, from his possession at the time of Examination, the disputes on these factual aspects has no relevance. Learned Counsel for the petitioner has also raised an issue that on the same day in the Examination Hall another candidate was caught with a bundle of note chits but ultimately, he was let off without any punishment, whereas the petitioner from whose possession, a single note chit was allegedly recovered, has been punished. The answer of the Respondents is that though some chits of papers were seized from the possession of another candidate, namely, N. A. Khan, but it was found that the chit notes, were not transferred in the answer sheets of the candidate whereas, in the petitioner's case, the comparison made had confirmed that the chit notes were transferred in the answer sheets by the petitioner. 10. In the light of the discussions made above and the facts and circumstances of the case, I do not find any illegality in the order of punishment of withholding the annual increments for three years. However, it is declared that the later part of the impugned order, whereby on expiry of the period of three years the penalty has been made to have the effect of postponing the petitioner's future increments of pay, is illegal as it amounts to depriving the petitioner of his increments forever and thereby lowering the petitioner in the time scale, and inflicting upon him a major punishment. The above mentioned second part of the impugned order is hereby quashed. 11. With these observations, this writ application stands disposed of.