IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.22 of 2006 Date of decision: 05.02.2009 M/s Indian Drugs and Pharmaceuticals Ltd. .....Appellants and another versus J.K.Sethi ....Respondent CORAM:HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR .JUSTICE H.S.BHALLA Present: Mr. Subhash Ahuja, Advocate for the appellants. Mr. Arun Nehra, Advocate for the respondent. 1. Whether reporters of local papers may be allowed to see the Judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ----- M.M.KUMAR, J. This appeal filed under Clause X of the Letters Patent, is directed against judgment dated 27.04.2005 passed by the learned Single Judge of this Court in C.W.P. No.16608 of 2002. The learned Single Judge has allowed the petition filed by the petitioner-respondent and has directed the appellant to consider his claim for promotion from the date persons juniors to him were promoted by treating him to be the senior most Executive Assistant from the date he was reinstated. Brief facts of the case necessary for disposal of the appeal are that the petitioner-respondent was appointed as Distribution Assistant in L.P.A. No.22 of 2006 - 2 - the appellant-Company on 24.04.1969. He was promoted to the post of Executive Assistant in the year, 1977 and thereafter on the post of Personnel Executive on 13.01.1986. A regular departmental enquiry was conducted against him and the charges were found to be proved. Consequently, he was dismissed from service by the punishing authority on 10.04.1990. However, he partially succeeded before the Appellate Authority and vide its order dated 05.06.1991, the Appellate Authority reduced the punishment by passing the following order viz. (a) that the petitioner be reinstated with immediate effect and the intervening period between the date of his termination and the date of rejoining was to be treated as break in service; (b) He was to be reduced to the lower post of Executive Assistant in the scale of pay of Rs.1090-1850 ; (c ) .............. The aforesaid order was challenged by the petitioner- respondent before Delhi High Court in C.W.P. No.2763 of 1991. The writ petition filed by him was dismissed by a Division Bench on 28.04.1992. The order dated 05.06.1991 was then implemented by placing him at the tale end of the seniority list of Executive Assistant. The petitioner-respondent claimed that he was entitled to be promoted w.e.f. 09.04.1972 as on reversion, he could not be placed at the tale end in the lower cadre of Executive Assistant. Therefore, he complained in the writ petition, allowed by the learned Single Judge, that persons junior to him were given promotion in the years, 1992, 1994 and 1997. It is pertinent to mention that earlier also, he filed C.W.P. No.2511 of 2002 in which he had prayed for issuance of directions to the appellant to fix his seniority in the lower cadre of Executive Assistant in accordance L.P.A. No.22 of 2006 - 3 - with the Fundamental Rule 29(3) of the Fundamental Rules and Supplementary Rules. The petition was disposed of by the Division Bench on 07.02.2002 with a direction to the appellant to decide his representation. The representation was rejected on 25.06.2002. Accordingly, he filed another petition decided by the learned Single Judge seeking the relief of issuance of direction to the appellant to fix his seniority in the cadre of Executive Assistant in terms of Fundamental Rule 29 (3) along with all consequential benefits. The learned Single Judge had also noticed all the preliminary objections raised by the appellants in their written statement namely that the petitioner had already retired from service on 31.03.2001. The service in the appellant- Company was not pensionable, the petitioner-respondent had already been paid his retiral dues. The appellant-Company has been declared sick with more than 90% of its employees have already been retrenched or relieved under the Voluntary Retirement Scheme and the Fundamental Rule 29 would not apply because the petitioner was not reduced in rank by way of punishment but was given fresh appointment as Executive Assistant. The learned Single Judge refused to accept the defence of the appellant that the petitioner was not reduced in rank by way of punishment. On the basis of the order dated 05.06.1991 dismissing the petitioner-respondent from service as modified by the Appellate Authority, the learned Single Judge concluded that the intervening period between the date of termination and date of rejoining was to be treated as break in service. Therefore, there was no escape from the conclusion that the petitioner had been reverted by way of punishment. L.P.A. No.22 of 2006 - 4 - The learned Single Judge also recorded the findings that the pay of the petitioner undisputably was protected in the pay scale of Rs.1090-1850. The learned Judge then went on to interpret Rule 29(3) of the Rules and held as under :- “A perusal of the aforesaid rule shows that a Government servant may be reduced to a lower service either for a specified period or for an unspecified period. In cases where the period has been specified, the Competent authority shall have to indicate the date from which it will take effect and the period for which the penalty shall be operative. However, in case the period of the penalty is not specified, the conclusion is that the penalty is for an unspecified period. Fundamental Rule 29(3) provides that when a Government Servant is reduced to a lower service grade or post whether for a specified or unspecified period, the pay in the lower service shall be regulated in accordance with FR 28. Therefore, even though there would be break in the service of the petitioner, it would have only the effect that the period would not be counted for the purposes of increments. The punishment of break in service is not provided under any of the punishment and appeal rules. The term “break in service” in the impugned order would not mean that the petitioner would be placed at the bottom of seniority of L.P.A. No.22 of 2006 - 5 - Executive Assistant. Since his pay was protected, he has to be placed at the top of the seniority of Executive Assistant on reinstatement. Even otherwise since the period of reduction was unspecified, the petitioner would be clearly entitled to be placed as the senior most Executive Assistant. He would thereafter be entitled to be considered for promotion on the basis that he was the senior most Executive Assistant.” (emphasis added) We have heard learned counsel for the parties and have perused the grounds of appeal, the judgment of the learned Single Judge and the pleadings of the parties. The principal ground of attack against the view taken by the learned Single Judge is that principle of res judicata would apply as the petitioner-respondent had filed C.W.P. No.2763 of 1991 in Delhi High Court, which was dismissed on 28.04.1992. However, a perusal of the order passed by Delhi High Court would show that the writ petition was primarily directed against the order dated 05.06.1991 passed by the Appellate Authority. The order dated 28.04.1992 is set out below for a ready reference :- “We have heard the counsel for the parties. We find there is no merit in this petition in as much as the findings of the enquiry officer and the appellate authority are based on evidence showing that initially, the petitioner had submitted a bill regarding his L.T.C. to the Head Office where certain objections were raised and the bill was not L.P.A. No.22 of 2006 -6 - passed and petitioner had taken back that bill and had submitted another bill to the Regional Office suppressing the objections which were raised in respect of the first bill. The punishment imposed on the petitioner is not excessive. The enquiry report was given to the petitioner before he had filed the appeal. The judgment of the Supreme Court that the enquiry report should be given before awarding punishment was delivered by the Supreme Court after the initial punishment was awarded to the petitioner and before he filed the appeal, he was given the copy of the enquiry report. Dismissed. Sd/- P.K. Bahri Judge Sd/- Mohd. Shamin April 28, 1992. Judge” A perusal of the order would show that there was no prayer made in the aforesaid petition with regard to fixation of seniority under Fundamental Rule 29 (2) nor such prayer could have been made as there was no such cause of action. It was as a result of implementation of the order dated 05.06.1991 that the cause of action to the petitioner- respondent became available as he was placed at the bottom of seniority list of Executive Assistant. The other objection raised by the appellant is that no findings were recorded with regard to delay in filing the petition. Firstly, the L.P.A. No.22 of 2006 - 7 - argument does not seems to have been raised before the learned Single Judge. Secondly, the petitioner filed C.W.P. No.2511 of 2002, which was disposed of by a Division Bench of this Court on 07.02.2002 by issuing direction to the appellant to decide his representation, which was rejected on 25.06.2002. Therefore, no question of delay would arise in such circumstances. The other ground of challenge is that Fundamental Rules were not applicable as the petitioner-respondent was not reduced to rank by way of punishment. The aforesaid argument has been considered by the learned Single Judge by concluding that the punishment of dismissal was reduced to the lower post of Executive Assistant by the Appellate Authority on 05.06.1991 and therefore, it could not be concluded that Rule 29 of the Fundamental Rules was not applicable. Rule 29 (3) which is applicable to the case of the petitioner-respondent reads as under :- “(3) Reduction to a lower service, grade or post, or a lower time-scale--Every order passed by a Competent Authority under sub-rule (2) of FR 29 imposing on a Government servant the penalty of reduction to a lower service, grade or post, or to a lower time-scale should indicate- (i) the date from which it will take effect and in cases where the reduction is proposed to be imposed for a specific period, the period (in terms of years and months) for which the penalty shall be operative. It should be noted that the reduction may L.P.A. No.22 of 2006 - 8 - be for an unspecified or an indefinite period and in cases where no period has been specified in the order of penalty, the conclusion is that the penalty is for an unspecified period. 2. When the Government servant is reduced to a lower service, grade or post, or to a lower time scale whether for a specified or unspecified period, the pay in the lower service, grade or post or lower time scale, should be regulated in accordance with FR 28. “ We have perused the Rule and are in agreement with the learned Single Judge that by no stretch of imagination, the rule could be made inapplicable to the case of the writ petitioner-respondent. The rule clearly postulates that when a Government Servant is reduced to a lower service grade or post whether for a specified or unspecified period, then the pay in the lower service is required to be regulated in accordance with the Fundamental Rules, 28. The interpretation given by the learned Single Judge is unexceptionable and we accept the same. For the reasons aforementioned, this appeal fails and the same is dismissed. (M.M.KUMAR) JUDGE (H.S.BHALLA) JUDGE 05.02.2009 sanjeev