IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 14598 of 2008. Reserved on: 16.06.2010. Decided on: 02.07.2010. _______________________________________________________ Umed Ram. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, J. : Disciplinary proceedings were initiated against the petitioner vide memorandum dated 1.12.2004. He filed reply to the same on 1.1.2005. Inquiry Officer was appointed. He submitted the report to the disciplinary authority. The disciplinary authority disagreed with the findings of the Inquiry Officer and held the charges leveled against the petitioner to be established beyond any doubt for violation of Rule 3(1) and (III) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred as the “Conduct Rules”). The petitioner was permitted to make a representation within a period of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 15 days. He filed representation on 14.9.2006. The disciplinary authority imposed the penalty of withholding of future increments of pay for a period of three years with cumulative effect vide order dated 21.12.2006 (Annexure A-12). 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that though the petitioner has been served with charge-sheet under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the “CCS(CCA) Rules”), but major penalty of withholding of increments of pay for a period of three years with cumulative effect has been imposed by the disciplinary authority on 21.12.2006. In other words, her submission is that once the proceedings had been initiated against her client under Rule 16 of the CCS(CCA) Rules, only the minor penalties mentioned/provided under Rule 11 of the CCS(CCA) Rules could be imposed. Mr. Vikas Rathore, learned Deputy Advocate General has supported the issuance of Annexure A-12, dated 21.12.2006. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. A bare perusal of Annexure A-8 reveals that the departmental proceedings had been initiated against the petitioner under Rule 16 of the CCS(CCA) Rules for violation of Rule 3(1) and (III) of the Conduct Rules. The Inquiry Officer has submitted report to the disciplinary authority. The disciplinary authority disagreed with the findings recorded by the Inquiry Officer and the petitioner was permitted to make a representation vide order dated 31.8.2006. The - 3 - petitioner has filed representation/reply to the same on 14.9.2006. Rule 16 of the CCS(CCA) Rules only provides procedure for imposing minor penalties. Minor penalties have been provided for under Rule 11 of the CCS(CCA) Rules. Once the proceedings have been initiated in the instant case under Rule 16 of the CCS(CCA) Rules, the major penalty provided under Rule 11 of the CCS(CCA) Rules could not be imposed. In case the major penalty was to be imposed, the disciplinary proceedings were required to be initiated under Rule 14 of the CCS(CCA) Rules. In the present case, the penalty of withholding of future increments has been imposed upon the petitioner for a period of three years, that too, with cumulative effect, which amounts to major penalty. Their Lordships of Hon’ble Supreme Court in Kulwant Singh Gill versus State of Punjab, 1991 Supp (1) SCC 504 have held that stoppage of two increments with cumulative effect amounts to major penalty. Their Lordships of the Hon’ble Supreme Court have held as under (para 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 - 4 - 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. 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 - 5 - 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. 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.” - 6 - 5. In a similar case, their Lordships of the Hon’ble supreme Court in Mohinder Singh versus State of Punjab and others, 1995 Supp (4) SCC 433 have held as under (para 2):- “It has been brought to our notice that in a recent judgment in the case of Kulwant Singh Gill v. State of Punjab, this court has taken a different view and overruled the decision in Sarwan Singh case. Consequently, the punishment sought to be imposed on the petitioner was not a minor penalty but a major one, and an enquiry should have been held in terms of Regulations 8 and 9 of the Punjab Civil Services Rules. In the circumstances, we set aside the order of the High court and remand the matter to the High court for being disposed of afresh in the light of this court's decision. We have no doubt that as the matter is an old one, the High court will dispose of the matter as expeditiously as possible. The appeal is disposed of accordingly. There will be no order as to costs.” 6. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-12, dated 21.12.2006 is quashed and set aside. Consequences shall ensue. There will be no order as to costs. (Rajiv Sharma), Judge. July 02, 2010. (sck).