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2024 DIGILAW 1013 (PNJ)

Om Parkash (died) v. State of Haryana

2024-07-05

NAMIT KUMAR

body2024
JUDGMENT Mr. Namit Kumar, J. This Regular Second Appeal has been filed by the plaintiff-appellant( s) against the judgment and decree dated 30.01.1992 passed by the Court of learned Additional District Judge, Jind, whereby appeal preferred by the defendant-respondent was allowed and suit of the plaintiff for declaration was dismissed. 2. Parties to the lis are being referred to as per their status before the trial Court. Brief facts of the case are that the plaintiff filed a suit for declaration to the effect that order dated 10.04.1986 passed by the Collector, Jind, vide which one increment of the plaintiff was stopped with cumulative effect and pay in excess of subsistence allowance was withheld during suspension period and order dated 26.06.1986 passed by the Collector, Jind, whereby one increment of the plaintiff was stopped with cumulative effect, are bad in law. The suit of the plaintiff was decreed by the Court of learned Additional Senior Sub Judge, Jind, vide judgment and decree dated 03.10.1991 and impugned order dated 10.04.1986 vide which one increment was stopped with cumulative effect and pay in excess of subsistence allowance withheld during suspension period and impugned order dated 26.06.1986 vide which one increment of petitioner was stopped with cumulative effect, were set aside by recording a finding that since the said orders were passed without holding regular departmental inquiry, therefore, they cannot be sustained in the eyes of law as stoppage of increment with cumulative effect is a major punishment. However, liberty was granted to conduct fresh regular departmental inquiry on the basis of charge-sheet and allegations on which the impugned orders were passed. 3. The said judgment and decree dated 03.10.1991 was challenged by the defendant-respondent before the Court of learned Additional District Judge, Jind, in Civil Appeal No.113 of 91, which was allowed vide judgment and decree dated 30.01.1992 and the judgment and decree of the trial Court dated 03.10.1991 was set aside. Hence the present appeal. 4. Learned counsel for the plaintiff-appellants submitted that the judgment and decree passed by the learned lower appellate Court is not sustainable in the eyes of law as stoppage of increment with cumulative effect is a major punishment and the same could not be ordered in the absence of regular departmental inquiry and without affording proper opportunity of hearing to the employee concerned. Since the impugned orders are passed by the authority without holding the departmental inquiry and without adhering to the principles of natural justice, therefore, the same are illegal, without jurisdiction, null and void and not binding upon the rights of the appellants. 5. On the other hand, the learned counsel representing the State of Haryana submitted that previously the services of the employees were governed by the Punjab Civil Services (Punishment and Appeals)Rules, 1970 and the withholding of increment of pay was a minor punishment. He further submitted that the State of Haryana notified its own rules i.e. The Haryana Civil Services (Punishment and Appeal )Rules, 1987 and the punishment of withholding of increments of pay with cumulative effect for the first time was brought under the heading "Major Penalties" vide amendment notified on 19.11.1992. He has produced a copy of the said notification, which reads as under: - "2. In the Haryana Civil Services (Punishment and Appeal) Rules, 1987, in rule 4, in sub-rule (1).-- (i) Under heading "Minor Penalties", for clause (v), the following clause shall be substituted, namely:- "(v) withholding of increment of pay without cumulative effect," (ii) under heading "Major Penalties", the following clause shall be inserted, namely:- "(v-a) withholding of increments of pay with cumulative effect,"." 6. I have heard learned counsel for the parties and perused the record. 7. The present appeal was admitted on 03.08.1992. The only question which arises for determination by this Court is as to whether the punishment of stoppage of increment with cumulative effect can be imposed without holding regular departmental inquiry or not. 8. The Hon'ble Supreme Court in Kulwant Singh Gill v. The State of Punjab, 1991(2) S.C.T. 30 has held that stoppage of increment with cumulative effect is a major punishment and cannot be imposed without holding regular departmental inquiry. Paras 4 and 5 of the said judgment read as under: - "4. Withholding of increments of pay simplicator undoubtedly is a minor penalty within the meaning of Rule (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 Rules 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably means that the two increments earned by the employee were 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 timescale of pay as a measure of penalty. The words are the skin to the language which if pealed 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 and Ors., ILR 1985(2) P&H 193 speaking for the division bench, while considering a similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rules 5 of 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 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 is 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 the 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 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 storage of increments, of earning future increments in the time scale of pay even permanently without expressly stating 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. Conducting an enquiry, de hors the rules is no enquiry in the eye of law. It cannot be countenanced that the pretense of an enquiry without reasonable opportunity of abducting evidence both by the Dept. as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meanings 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 Dept. 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 is to be placed before the disciplinary authority who then is to consider it in the manner prescribed and to pass an appropriate order as per 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 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 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. In view of the above, present appeal is allowed and the judgment and decree dated 30.01.1992 passed by the lower appellate Court is hereby set aside and that of the trial Court dated 03.10.1991 is restored. Since the plaintiff has already died and his LRs have been brought on record, therefore, the liberty granted by the trial Court vide judgment and decree dated 03.10.1991 to hold fresh regular departmental inquiry is of no consequence and is also set aside. Necessary consequential benefits shall be released to the appellants within a period of three months from the date of receipt of certified copy of this order.