IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1016 of 1987 Date of Order: 25.9.2009 State of Punjab and another ...Appellants Versus Tilak Raj ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Ms. Sudeepti Sharma, DAG, Punjab, for the appellants. None for the respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The short issue raised in this appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the ‘Code’) is whether punishment of stoppage of increment with cumulative effect or reduction of the pay of the employee to the minimum of the pay scale, is a major penalty and could the same be imposed without holding a regular departmental inquiry. Brief facts of the case may first be noticed. The plaintiff was working as a Conductor in the Punjab Roadways, Pathankot. For non-issuance of tickets to passengers on different occasions despite charging the fare from them, four punishments were inflicted upon him by the General Manager, Punjab Roadways, Pathankot, which are R.S.A. No. 720 of 1987 as follows: 1. Stoppage of one increment without cumulative effect, vide order No. 525/ECC, dated 11.7.1970. 2. Stoppage of one increment with cumulative effect, vide order No. 3428/ECC, dated 18.5.1972. 3. Reduction of pay to the minimum of time scale for a period of two years with cumulative effect, vide order No. 5637/ECC, dated 10.10.1972. 4. Stoppage of one increment with cumulative effect, vide order No. 2994, dated 7.8.1975. The plaintiff filed a suit for declaration to the effect that the aforementioned orders have been illegally passed without following the provisions of the service rules and are liable to be set aside. Consequential relief of all the increments and pay scale was also sought. The trial Court framed the following issues:- “1) Whether the impugned orders are illegal, void, unconstitutional and against the principles of natural justice and service etc.? OPP. 2) Whether the plaintiff is entitled to the declaration prayed for? OPP. 3) Whether this court has no jurisdiction to try this suit? OPD 4) Whether this suit is within time? OPP. 5) Whether the suit is bad for want of notice u/s 80 C.P.C.? OPD. 6) Whether the suit is bad for non joinder of necessary parties? OPD. 2 R.S.A. No. 720 of 1987 7) Relief.” The trial Court decided Issue No. 1 partly in favour of the plaintiff holding that impugned orders dated 18.5.1972 and 7.8.1975 (mentioned at Sr. Nos. 2 and 4 above) were passed in violation of Rule 8 read with Rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for brevity, ‘the Rules’). The aforesaid rules contemplate holding of regular departmental enquiry before inflicting the punishment of major penalty. The trial Court, however, upheld the validity of remaining two orders dated 11.7.1970 and 10.10.1972 (mentioned at Sr. Nos. 1 and 3 above). The plaintiff as well as the defendant State of Punjab preferred appeals against the judgment and decree dated 16.2.1985 passed by the trial Court. The learned Lower Appellate Court dealt with all the four punishment orders separately in para Nos. 8 to 11 of its judgment and came to the conclusion that all the impugned orders were illegally passed. Accordingly, the learned Lower Appellate Court dismissed the appeal filed by the defendant State and reversed the judgment of the Trial Court while allowing the plaintiff’s appeal, vide judgment dated 3.1.1986, which is subject matter of challenge in the instant appeal. I have heard the learned State counsel and perused the paper book with her able assistance. The orders dated 11.7.1970, 18.5.1972, 7.8.1975, imposing punishments of stoppage of one increment each with/without cumulative effect and order dated 10.10.1972 reducing the pay of the plaintiff to the minimum of time scale for a period of two years with cumulative effect, suffers from patent defects. This Court in the case of State of Punjab v. Ram 3 R.S.A. No. 720 of 1987 Lubhaya, ILR 1983 (2) P&H 123, had taken the view that the penalty contemplated by Rule 5(iv) of the Rules i.e. withholding of increment of pay was a minor penalty if it is confined only to the stoppage of increment without cumulative effect. Even then such a punishment could be imposed for good and sufficient reasons as per the requirement of the Rules. However, the penalty of stoppage of increment with cumulative effect or reduction to a lower time scale which affects promotion, were major penalty, which could be imposed only after regular departmental enquiry. The view taken by this Court in Sarwan Singh v. State of Punjab, ILR 1985 (2) P&H 190, was approved by Hon’ble the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab, 1991 Supp (1) SCC 504, by holding as under:- “4. Witholding 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(iv)? If it so falls Rules 4 R.S.A. No. 720 of 1987 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned Counsel for the State is that witholding 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. Witholding 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 means 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 pleaded 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 5 R.S.A. No. 720 of 1987 that the Division Bench in Sarwan Singh vs. State of Punjab & Ors. ILR 1985(2) P&H 193 speaking for the division bench, while 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 by the competent 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 withhold 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 6 R.S.A. No. 720 of 1987 stoppage of increments, of earning future increments in the time scale of pay even permanently with expressly stating so. This preposterous consequences cannot be permitted to be permitted. 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.” In respect of order dated 11.7.1970, imposing punishment of stoppage of one increment without cumulative effect, the learned Lower Appellate Court has categorically found that the plaintiff-respondent was initially placed under suspension for allowing the passengers to travel without tickets. He was placed under suspension and then reinstated on the telephonic message of Chaudary Ram Singh, Ex. M.L.A. The order dated 11.7.1970 was passed without issuing even show cause notice calling upon him why he be not punished with the stoppage of increment without cumulative effect. It has further been found that the General Manager, who had passed the order, did not maintain objectivity and merely on the report of the checking staff, the services of the plaintiff were terminated. It was thereafter that the order of suspension was 7 R.S.A. No. 720 of 1987 passed, which eventually resulted in passing of order of stoppage of one increment without cumulative effect. It is evident from the perusal of Rule 5 of the Rules that various penalties given from Sr. Nos. (i) to (iv) and (v) to (ix) could be imposed for good and sufficient reasons. In respect of order dated 11.7.1970 even show cause notice was not issued and the recording of reasons would be empty formality in the absence of any show cause notice and consideration of reply of the plaintiff-respondent, therefore, the aforesaid order would not stand the scrutiny of this Court and the learned Lower Appellate Court has rightly held that the order is liable to be set aside. With regard to order dated 18.5.1972, it has been categorically noticed by the learned Lower Appellate Court that on receipt of the report of the checking staff against the plaintiff, the General Manager called for his explanation. The plaintiff in his reply gave assurance that he will not repeat his mistake in future. He was then reinstated in service and punishment of stoppage of one increment with cumulative effect was imposed. In respect of order dated 7.8.1975 it has been found that on receipt of the report of the checking staff, the General Manager ordered that show cause notice be issued to the plaintiff calling upon him to show cause why he be not punished with stoppage of three increments. Similarly, in respect of order dated 10.10.1972, imposing punishment of reduction of pay to the minimum of time scale for a period of two years with cumulative effect, the learned Lower Appellate Court has recorded the finding that the explanation of the plaintiff was called but the reply did not find favour. The plaintiff was charge sheeted and 8 R.S.A. No. 720 of 1987 regular inquiry was ordered. But no regular inquiry was held. The General Manager on the inquiry filed recorded that the delinquent has confessed his guilt and he did not want any enquiry. Resultantly, the aforementioned punishment was imposed upon the plaintiff. The Lower Appellate Court has rightly observed that even though the regular departmental inquiry was dispensed with in view of admission of guilt by the plaintiff, yet, it was incumbent upon the punishing authority to issue show cause notice before inflicting the punishment. However, that procedure has not been followed. Thus, it can be safely concluded that while passing the orders dated 18.5.1972, 10.10.1972 and 7.8.1975, inflicting major penalties in terms of the law laid down by Hon’ble the Supreme Court in Kulwant Singh Gill’s case (supra), proper procedure has not been followed by the punishing authority, which renders the aforementioned orders as illegal and the learned Lower Appellate Court has rightly set aside the same. As a sequel to the above discussion, the appeal filed by the appellant State is liable to be dismissed and the view taken by the learned Lower Appellate Court deserves to be upheld. Accordingly, this appeal fails and the same is dismissed. (M.M. KUMAR) September 25, 2009 JUDGE Pkapoor 9