IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1581 of 1990 Date of Decision: September 13, 2010 Giani Ram …Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE GURDEV SINGH Present: None for the petitioner. Mr. Rameshwar Malik, Addl. AG, Haryana, for the respondent. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The petitioner has retired on attaining the age of superannuation as Block Development and Panchayat Officer on 30.11.1987. On 17.11.1987, an order was passed against him under Rule 4 (ii) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 (for brevity, ‘the Rules’), on the basis of the charges that he had left the headquarters on 31.12.1983 without obtaining the station leave up to 1.1.1984 and thereafter furnished an application on 2.1.1984. His one annual grade increment with cumulative effect was stopped (P-3). On 11.1.1988, an order was passed that the period of his suspension from CWP No. 1581 of 1990 22.3.1984 to 21.3.1985 was to be treated as a duty period and he was to be given only subsistence allowance (P-4). The petitioner has challenged both the aforementioned orders on the ground that no regular departmental inquiry was held and, therefore, the punishment of stoppage of increment with cumulative effect could not have been inflicted as it is a major penalty. For inflicting major penalty, a regular departmental inquiry has to be held. 2. Brief facts of the case are that the petitioner was posted as Block Development and Panchayat Officer at Sampla (Haryana). He was placed under suspension vide order dated 21.3.1984 (P-1) and he was reinstated vide order dated 12.3.1985 without prejudice to the disciplinary action that might be taken against him in consequence of the disciplinary proceedings. Thereafter a charge sheet was served on him on the allegation that he left the headquarters on 31.12.1983 without obtaining station leave for 31.12.1983 and 1.1.1984 from the competent authority and that on 2.1.1984 he sent an application to the Deputy Commissioner, Rohtak, from his village Ram Rai, District Jind, for grant of leave from 2.1.1984 to 27.1.1984. It was pointed out in the charge sheet that he could not have left the headquarters without prior permission of the competent authority as per the provisions of Appendix-17, Serial No. 5 of the Punjab Civil Services Rules, Volume-I, Part-II and he should have got his leave sanctioned from the competent authority before availing it. Therefore, it was alleged that he remained absent from duty from 31.12.1983 to 27.1.1984, which constitute a grave misconduct. 3. The petitioner denied the charges and explained his position stating that he had left the headquarters by forwarding his application in that 2 CWP No. 1581 of 1990 regard vide Memo. No. 3414, dated 30.12.1983, from his office to the office of Sub Divisional Officer (Civil), Rohtak. Therefore, the allegation that he left the headquarters without seeking permission was false. With regard to leave application sent from home, the petitioner has stated that for the period from 2.1.1984 to 27.1.1984 he got the leave extended on account of search of a suitable match for his daughter who was of marriageable age. He was at pains to point out to the respondents that when he reached his village, he was told about the suitable match of his daughter at few places and he believed that talk of marriage of his daughter is likely to mature. Therefore, he applied for leave. The office of the Deputy Commissioner, Rohtak, started asking questions from the petitioner with regard to the date of marriage of his daughter as per the telegram dated 18.1.1984 when the marriage was yet to mature. However, the petitioner joined his duty on 27.1.1984. The case of the petitioner is that the punishing authority without considering his reply to the charge sheet, stopped his one annual grade increment with cumulative effect, vide order dated 17.11.1987 (P-3) and has restricted his pay and allowances in respect of the suspension period from 22.3.1984 to 21.3.1985 to the payment of subsistence allowance already made, vide order dated 11.1.1988 (P-4). 4. It has remained undisputed that no regular departmental inquiry was held against the petitioner. The petitioner has seriously disputed the charge of absence from station from 31.12.1983 to 1.1.1984 and subsequent absence from duty by stating in his reply dated 28.8.1984 (P-2) that he had forwarded the leave application. 5. After hearing learned counsel we are of the considered view that under Rule 4(ii) of the Rules the punishment envisaged is stoppage of 3 CWP No. 1581 of 1990 increment without any further rider whether ‘with or without cumulative effect’. The aforesaid punishment figures under the list of minor penalties enumerated in Rule 4. The aforesaid rule came up for interpretation before Hon’ble the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab, 1991 Supp (1) SCC 504 and it has been held that under the heading of penalties in Rule 4, the punishment of stoppage of increment with cumulative effect cannot be inflicted because it has serious consequences affecting permanently the salary, pension and other retiral benefits. Such a punishment cannot be inflicted without holding a regular departmental inquiry in accordance with Rule 7 of the Rules. Accordingly, the order dated 17.11.1987 (P-3) cannot be sustained in the eyes of law. 6. The other order dated 11.1.1988 can also not be sustained in the eyes of law because no punishment would be deemed to have been inflicted. It is well settled that if no punishment has been inflicted on an employee either under Rule 4(iii) by following the procedure envisaged by Rule 7 or any of the punishment envisaged by Rule 4(i)(ii)(iv) on the basis of procedure envisaged by Rule 8 of the Rules then the period of suspension cannot be justified on any ground. In other words, the period of suspension would be considered unjustified. Therefore, once the order dated 17.11.1987 (P-3), inflicting punishment on the petitioner has been quashed then in law no punishment would be deemed to have been inflicted upon him. Moreover, it is also well settled that if a charge sheet has been issued for imposing major penalty contemplating holding of a regular departmental inquiry then even for inflicting minor penalty, the procedure for imposing major penalty as envisaged by Rule 7 of the Rules has to be followed. For 4 CWP No. 1581 of 1990 the aforesaid view we place reliance on a Full Bench judgment of this Court rendered in the case of Dr. K.G. Tiwari v. State of Haryana, 2002 (4) SLR 329. Still further even the minor penalty cannot be imposed in the absence of admission of the allegations because under Rule 4 the penalties stated therein could be inflicted only for ‘good and sufficient reasons’ and not otherwise. The petitioner has seriously disputed the allegations with regard to leaving of station and his subsequent leave from duty. Therefore, holding of departmental inquiry in any case was obligatory. Therefore, the impugned order dated 11.1.1988 cannot be sustained. 7. In view of the above, the writ petition succeeds. Orders dated 17.11.1987 and 11.1.1988 (P-3 & P-4) are hereby quashed. The petitioner shall be entitled to all consequential benefits, which may be calculated and paid to him within a period of three months from the date of receipt of a copy of this order. 8. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (GURDEV SINGH) September 13, 2010 JUDGE Pkapoor 5