THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2110 OF 2008 DATED _____OCTOBER, 2010 BETWEEN G.Galaiah … Petitioner And The Andhra Pradesh State Road Transport Corporation, rep. by its Depot Manager, Dubbak Depot, Medak District and another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2110 OF 2008 O R D E R Deferment of the petitioner’s annual increments for a period of two years with cumulative effect under proceedings dated 06.06.2004 passed by the Depot Manager, Andhra Pradesh State Road Transport Corporation, Dubbak, confirmed in Review by proceedings dated 18.09.2006 by the Regional Manager, Andhra Pradesh State Road Transport Corporation, Sangareddy, Medak District, is called in question on the ground of procedural violations. The petitioner entered the service of the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’) as a Conductor in the year 1984. He was subjected to disciplinary proceedings under charge sheet dated 20.01.2004 in respect of certain irregularities allegedly committed by him while conducting the bus service en route Dubbak to Kamareddy on 18.10.2003. After considering his explanation dated 22.03.2004, the APSRTC instituted an enquiry in the matter. By report dated 03.06.2004, the Enquiry Officer held against the petitioner. Under proceedings dated 06.06.2004 the Depot Manager, APSRTC, Dubbak Depot, the first respondent, ordered deferment of the petitioner’s annual increments for a period of two years which would have effect on his future increments. His appeal to the Divisional Manager, APSRTC, Sangareddy, Medak District, was rejected on 28.06.2005 and thereafter, his Review to the Regional Manager, APSRTC, Sangareddy, Medak District, the second respondent, met with the same fate on 18.09.2006. Hence, this writ petition. The only ground of attack urged by the petitioner is that the APSRTC violated procedural norms in taking disciplinary action against him as he was not issued a show-cause notice prior to the imposition of the punishment. The APSRTC, in its counter, stated that the petitioner was appointed as a Conductor in its service on 10.07.1985. It pointed out that the allegation against the petitioner under charge sheet dated 20.01.2004 was with regard to the deviation from the route course resulting in cancellation of 124 Kms. The APSRTC further stated that after perusal of the enquiry report, the first respondent came to the conclusion that the charge leveled against the petitioner stood proved and thereupon imposed upon him the subject punishment. Except for stating that the petitioner had failed to question the non-issuance of the second show-cause notice in his appeal and thereafter his review, the APSRTC did not touch upon whether the same amounted to a procedural violation. Heard both sides. Though the APSRTC categorized withholding of increments as a minor penalty under Regulation 8(1)(iv) of the APSRTC Employees (Classification, Control and Appeal) Regulations, 1967, once the same was to have effect on future increments, it would inevitably amount to reduction to a lower stage in the time scale, which is admittedly a major penalty under Regulation 8(1)(vii). In the light of the law laid down by the Supreme Court in KULWANT SINGH GILL V/s. STATE OF PUNJAB[1], irrespective of the title given to the punishment, once it has the effect of a major penalty, the procedure prescribed for imposition of such penalty must necessarily be followed. The observations of the Supreme Court in this regard are apposite: “(4) Withholding of increments of pay simpliciter 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 words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. …” In that view of the matter, the APSRTC necessarily had to abide by the procedure prescribed by the Regulations for imposition of the major penalty of reduction to a lower stage in the time scale. Regulation 12(13) of the aforestated Regulations posits that if the disciplinary authority proposes to impose the penalty specified in Regulation 8(1)(vii), he should give the employee an opportunity to show cause why the said penalty should not be imposed. Admittedly, the APSRTC did not issue a show-cause notice to the petitioner after submission of the enquiry report indicating to him as to what was the punishment proposed to be imposed on him and giving him an opportunity to respond. This procedural lapse does not cease to have effect merely because the petitioner did not raise it in his grounds before the Appellate and thereafter the Reviewing Authorities. The illegality resulting from violation of the prescribed procedure does not attain validity nor does it mature like fine wine over a period of time or because of disclaimer. This error on the part of the APSRTC would inevitably vitiate the action taken by it against the petitioner. Reference in this regard may also be made to KOTTAPATI JAYACHANDRA REDDY V/s. DEPOT MANAGER, APSRTC, KADIRI DEPOT, ANANTAPUR DISTRICT[2], wherein a learned Judge of this Court while dealing with a similar fact situation interfered with the punishment of stoppage of an increment with cumulative effect on the ground that no show-cause notice was issued with regard to the proposed punishment after conduct of the departmental enquiry. Though in the normal circumstances, the matter would be remanded back to the disciplinary authority for fresh consideration as to the appropriate punishment to be imposed, this Court is mindful of the fact that the petitioner already attained the age of superannuation in February, 2008 and these disciplinary proceedings dating back to the year 2004 require to be set at rest in the light of his retirement from service. This therefore constitutes an exceptional case warranting exercise of jurisdiction by this Court in the area of the quantum of punishment also. Given the nature of the charge levelled and held proved against the petitioner which did not involve any financial irregularity or misappropriation, I am of the considered opinion that it would suffice in the interest of justice to modify the punishment imposed on the petitioner to that of deferment of his annual increments for a period of two years without effect on his future increments. The writ petition is accordingly allowed setting aside the proceedings dated 06.06.2004 and 18.09.2006 passed by the APSRTC and substituting the punishment imposed thereby with that of deferment of the petitioner’s annual increments for a period of two years without cumulative effect. The APSRTC shall accordingly give effect to the modified punishment, compute the petitioner’s retirement benefits in accordance therewith and remit the same expeditiously and in any event not later than two months from the date of receipt of a copy of this order. There shall be no order as to costs. -------------------------- SANJAY KUMAR,J ______OCTOBER, 2010 PGS (P.D.) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2110 OF 2008 DATED _____OCTOBER, 2010 [1] 1991 Suppl. (1) SCC 504 [2] 2005(6) ALD 247