IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2026 of 2010 Date of Decision: 7th September, 2010 __________________________________________________________ Atma Ram ….Petitioner. Versus State of H.P. & another ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. Rupinder Singh, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner has approached this Court on the allegations that he was appointed as Gram Sewak on 1.6.1990 and has undergone training upto 31.5.1991 and thereafter he joined as Gram Sewak at Gram Panchayat, Avam Vikas Adhikari. He submits that he was suspended on 11.3.1999 by Annexure P-1 for extraneous reason. By another memo dated 16.8.1999 Annexure P-2 his basic salary was reduced from Rs. 3900/- to Rs. 3120/-. He filed a detailed representation stating therein that he has an old mother etc. to look after and the penalty be withdrawn. By Annexure P-3 this penalty was maintained. Thereafter the petitioner submits that the respondent issued an order Annexure P-4 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 in which it has been admitted that the basic salary of the petitioner would be Rs. 5480/- but the same is applicable only from 7.7.2006. He also pleads that his special increments etc. have been withheld and that the penalty which has been imposed is in grave violation of the CCA and CCS Rules. 2. The crux of the defence by the respondent is: “That in reply to the contents of this para, it is submitted that in pursuance to the order dated 11.8.2009 passed by the Deputy Commissioner, Sirmaur (Annexure P-5), is not in consonance, with the spirit of the penalty, so imposed by the department vide letter dated 8.3.2000 and letter dated 24.6.2008 (Annexure P-4). It is further submitted that the said matter is under examination with this department to review the pay fixation order passed by the Deputy Commissioner, Sirmaur (Annexure P- 5). The petitioner has been granted, the benefit of ACPS after completion of 8 years as per the order dated 11.8.2009 (Annexure P-5), w.e.f. 1.6.1998 by fixing his pay at Rs. 4140/-. Similarly, the benefit of ACPS, after completion of 16 years has been allowed w.e.f. 8.7.2007 and the same is also under examination of the department as to why instead of 1.6.2006, it has been released after a delay of 37days i.e. on 8.7.2006 by the Deputy Commissioner, Sirmaur. A Communication has been put up to the Deputy Commissioner, Sirmaur, to release the benefit of Arrears of ACPS due after 8 years/16 years w.e.f. 1.6.1998 to 7.7.2006, to the petitioner.” 3. Learned counsel appearing for the petitioner relies upon two decisions of the Supreme Court, the first being is Kulwant Singh Gill vs. State of Punjab, 1991 Supp (1) SCC 504 holding that withholding of increments of pay simplicite undoubtedly is a minor penalty, but reduction 3 to a lower stage in the time scale of pay for a specified period with further directions that an employee shall earn/not earn increments of pay during such period is a major penalty. The Court held: “4. ……This preposterous consequence cannot be permitted to be premeated. 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.” (at p. 508) 4. Second judgment relied upon by the learned counsel is Municipal Council Ongole Municipality vs. Ongole Tax Payers Union, 1995 Supp (4) SCC 432 holding: “This appeal on behalf of the appellant- municipality is directed against the decision decreeing the respondent’s suit by both the courts below. The questions on which the suit was defended have been dealt with by the impugned judgment and we do not find any error there. The learned counsel for the appellant now attempts to challenge the maintainability of the suit itself and contends that the Division Bench decision of the High Court in Municipal Council of Vizianagaram vs. Shah Bibi Saheba AIR 1968 AP 194 was not correctly decided. This question was not pressed either in the trial court or before the High Court. Having regard to the facts of the case, we do not consider it expedient to permit the appellant to raise this question now before us. Having chosen to defend the suit on a number of pleas on the basis of which the suit was fought out by 4 the other side in the trial court and the High Court, they cannot now be allowed to turn back and challenge the maintainability of the suit itself. The appeal is therefore dismissed but in the circumstances without costs.” (at p.433) 5. Looking to the order passed against the petitioner, so far as the effect of reducing his salary is concerned, it cannot be said that the same is not a major penalty. Such punishment could be imposed upon him in accordance with law which procedure has not been followed. This writ petition is accordingly disposed of with following directions: (a) the imposition of penalty on the petitioner reducing him to a lower grade without holding regular inquiry is illegal and is accordingly quashed and set aside; (b) the State shall re-determine the benefits payable to the petitioner, including benefits as granted to him as submitted by the State in para 6 of its reply. 6. Writ petition stands disposed of. There shall be no order as to costs. (Dev Darshan Sud) Judge September 7th, 2010(ms)