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Himachal Pradesh High Court · body

2012 DIGILAW 69 (HP)

SHIV CHAND ROKHA v. STATE OF H. P.

2012-03-01

RAJIV SHARMA

body2012
ORDER : RAJIV SHARMA, J. 1. Memorandum was served upon the petitioner vide Annexure A-1 dated 8.3.2004, under rule 16 of the Central Civil Services (Control, Classification and Appeal) Rules, 1965 (hereinafter referred to as 'Rules' for brevity sake). The gist of the charges levelled against the petitioner was that though he was transferred, vide order dated 10.1.2003, but he did not join his duties till 27.2.2004. Petitioner filed reply to the same, vide Annexure A-2 dated 23.3.2004. The Additional Director Health Services conducted inquiry against the petitioner and submitted the report to the Disciplinary Authority on 20.8.2004. Petitioner was called upon to explain within 15 days his position on 8.9.2004. Petitioner filed reply vide Annexure A-6 on 18.12.2004. The Disciplinary Authority imposed the penalty of withholding of two increments with cumulative effect, under rule 11 of the Rules on 11.4.2005. 2. Mr. M.L. Sharma has strenuously argued that in case the major penalty was to be imposed upon his client, regular inquiry was required to be conducted as per the provisions of rule 14 of the Rules. 3. Mr. Vikas Rathore has supported the order dated 11.4.2005. 4. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 5. Rule 16 of the Rules lays down the procedure for imposing minor penalties. Sub-rule 1-A was also inserted in rule 16 vide notification dated 20.4.1968. It reads thus: "(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government Servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government Servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government Servant any such penalty. (2) The record of the proceedings in such cases shall include (i) a copy of the intimation to the Government Servant of the proposal to take action against him; (ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him; (iii) his representation, if any; (iv) the evidence produced during the inquiry; (v) the advice of the Commission, if any; (vi) the findings on each imputation of misconduct or misbehaviour; and (vii) the orders on the case together with the reasons therefor." 6. It is clear from the language in sub-rule 1-A of rule 16 that in case of withholding increments of pay with cumulative effect for any period, an inquiry is to be held in the manner laid down in sub-rules (3) to (23) of Rules 14. In the instant case, no inquiry as per rule 14 has been held and in view of sub-rule 1-A of rule 16, the major penalty could not be imposed without holding regular inquiry. 7. In the instant case, memorandum was issued to the petitioner under rule 16. He has furnished the reply to the same. Inquiry Officer was appointed. He has furnished the reply to the Disciplinary Authority on 20.8.2004. Thereafter, the petitioner has been given opportunity to explain his position vide Annexure A-6. He has furnished the reply, as noticed above, on 18.12.2004. The Disciplinary Authority has imposed the penalty of withholding of two increments with cumulative effect. The imposition of penalty of withholding of two increments with cumulative effect is a major penalty. The major penalty could only be imposed upon the petitioner after holding regular inquiry as visualised under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 8. Their Lordships of the Hon'ble Supreme Court in Kulwant Singh Gill v. State of Punjab, 1991 Supp (1) SCC 504 while construing Punjab Civil Services (Punishment and Appeal) Rules, 1970 have held that imposition of penalty of stoppage of two increments with cumulative effect without conducting regular enquiry as enjoined by Rules 8 and 9 of the Rules was illegal. Their Lordships of the Hon'ble Supreme Court have further held that mere service of show cause notice preceding the order imposing penalty was not enough. Their Lordships have held as under: "4. Withholding of increments of pay simplicities undoubtedly is a minor penalty within the meaning of Rule 5(iv). Their Lordships of the Hon'ble Supreme Court have further held that mere service of show cause notice preceding the order imposing penalty was not enough. Their Lordships have held as under: "4. Withholding of increments of pay simplicities 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 - 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 independent head of penalty and it could be imposed as punishment 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 falls 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. Withholding 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 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. The insidious 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. The a words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective 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, P.C. Jain, A.C.J. speaking for the Division bench, while b 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 c 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 where the increments are withheld 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, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly staling so. 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, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly staling so. This preposterous consequence 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 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 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. 5. 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, de hors the rules is no enquiry in the eye of law. It cannot be a countenanced that the pretence of an enquiry without reasonable opportunity of adducing evidence both by the department 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 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 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 to be placed before the disciplinary authority who then is to consider it in the manner prescribed and to pass an appropriate order as for the procedure in vogue under the Rules. The gamut of this procedure was not gone through. A report of the enquiry in that behalf to be placed before the disciplinary authority who then is to consider it in the manner prescribed and to pass an appropriate order as for 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 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 procedure 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." 9. Thus, order Annexure A-7 dated 11.4.2005 is without authority and jurisdiction and the same is declared void. 10. The matter is required to be considered from another angle. The petitioner has been called upon to explain his position by the Disciplinary Authority after the receipt by the inquiry report. The petitioner has filed representation to the same on 18.12.2004. However, the Disciplinary Authority has not taken into consideration in right perspective the representation submitted by the petitioner while imposing major penalty upon the petitioner. 11. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-7 dated 11.4.2005 is quashed and set aside. There shall, however, be no order as to costs.