RSA No.790 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.790 of 1993 Date of Decision: 17.3.2009 Hardayal ..Appellant Vs. The State of Punjab & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.O.P.Nagpal, Advocate, for the appellant. Mr.R.L.Gupta, Addl.A.G., Punjab, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments RSA No.790 of 1993 2 and decree dated15.1.1988 and 25.11.1992 passed by the learned courts below dismissing the suit filed by the plaintiff/appellant for mandatory injunction directing the defendants to pay arrears of pension, future pension, gratuity amount, arrears of fixed medical allowance and house rent as well as balance of enhanced dearness allowance along with unpaid monthly pay for the services rendered by the plaintiff as an employee of the defendants. The plaintiff brought a suit on the pleadings that he initially joined service of Government Works Centre, Rajpura on 1.5.1951 and he was compulsorily retired on 1.12.1982 while he was posted as senior technician and was posted as Master Craftsman. The plaintiff claimed that he was confirmed on the post of senior technician before his retirement. He was allowed leave period from 1.4.1979 to 30.12.1979 and then long leave from 5.2.1980 to 5.10.1980 and other leave periods from time to time. He was compulsorily retired due to his absence from duty and thus, he became entitled to all the benefits of service as his period was regularized by the defendants. He also claimed other allowances as admissible to him under rules. He also pleaded that he had not been paid medical allowance and other dues and also annual increments which became due to him. A plea was also raised that defendants have wrongly taken a plea that he had not crossed the efficiency bar and as such they had not paid the due pay and other benefits resulting on account of crossing of efficiency bar. The plaintiff claimed that there was no bar to cross efficiency bar as no adverse remarks for the last 3 years were conveyed to him in his RSA No.790 of 1993 3 confidential reports. It was also pleaded case that there was no legal ground as to why the case of efficiency bar could be decided against him. Decision of rejecting his case for crossing of efficiency bar was conveyed to him vide endorsement dated 10.2.1987 by the Joint Director, which was said to be against law and facts and therefore, was not binding on his right. The suit was contested. In the written statement it was admitted that the plaintiff joined services on 1.5.1951 and that he was compulsorily retired on 1.12.1982 while working as Master Craftsman in the officiating capacity as confirmed senior technician. Other contentions were denied and it was pleaded that he had absented from duty without getting leave sanctioned from the competent authority. He was charge-sheeted and a regular inquiry was held against him, and found guilty of remaining absent from duty willfully. In view of the finding recorded by the Inquiry Officer he was ordered to be retired compulsorily from service w.e.f. 1.12.1982. It was further the case of the defendants that by way of lenient view it was recommended to regularizing the period of absence by granting leave of the kind due so that his pension and gratuity case could be decided by the appropriate authority. Vide order dated 27.4.1984 period of absence was regularized by granting him extraordinary leave. All benefits to which the plaintiff was entitled to were settled and payment made to him. It was claimed that the decision regarding crossing of efficiency bar of the plaintiff was strictly in accordance with law and in accordance with Govt. instructions dated 26.10.1973 and the Rules. It was claimed that action taken did not amount to penalty as the plaintiff was not found to have crossed efficiency bar and therefore, was not entitled to any benefit of RSA No.790 of 1993 4 payment over and above the efficiency bar. It was claimed that the plaintiff had remedy of filing appeal against the order which he chose not to prefer. The suit was said to be premature. It was also claimed that other benefits were paid to him but he had not applied for encashment of earned leave of 12 days which were due to him at the time of retirement so the same was not paid. Thus, it was not disputed that he was entitled to the same. The only dispute in the case was with regard to the benefit of crossing of efficiency bar. The plea raised by the plaintiff/ appellant was that the order rejecting his claim for crossing of efficiency bar was passed in violation of service rules and also principle of natural justice as he was not given an opportunity of hearing. Furthermore, it was the contention of the learned counsel for the appellant that no adverse remarks in his annual confidential reports were ever conveyed to him to justify the order of stopping the plaintiff/appellant at efficiency bar. This plea was contested on the ground that the claim of the plaintiff/appellant for crossing efficiency bar was rejected in accordance with the circular dated 13.2.1968 placed on record as Ex.DQ. It was also claimed that the plaintiff/appellant failed to avail his remedy by way of statutory appeal though the decision was duly conveyed to him on 10.2.1987. Learned trial court rejected the plea that the stoppage of the plaintiff at the efficiency bar was amounted to double penalty by holding that stopping of an employee at efficiency bar in the time scale of pay is RSA No.790 of 1993 5 on the ground of his fitness to cross the bar and it does not amount to penalty within the meaning of the rules. In view of the explanation appended to Rule 5 of the Punjab Civil Services Rules (for short the Rules) it was held that the order could not be said to be a penalty. Learned trial court noticed that the plaintiff/appellant was to cross efficiency bar after 1.4.1979. However, he remained absent from 1.4.1979 to 31.12.1979 qua which inquiry was held and ultimately compulsorily retired vide order Ex.P.1. The learned trial court also held that according to Rule 4.8 of the Rules where an efficiency bar is prescribed in a time scale the increment next above the bar can not be given to a government employee without the specific sanction by the authority empowered to withhold the increment under Rule 4.7 of the Rules. Learned trial court also took into consideration the fact that no adverse remarks were ever conveyed to the plaintiff/appellant. However, the order of stopping of plaintiff at Efficiency bar was held valid in view of the instruction Ex.D.1 brought on record which read as under:- “ The undersigned is directed to say that a question has been raised as to the date from which a Government servant, whose case for crossing the efficiency bar has not been considered on account of the pendency of a disciplinary/vigilance case against him, should be considered for being allowed to cross the efficiency bar, after the inquiry is over. It has been decided in consultation with the Ministry of Home Affairs, that if, after the conclusion of the proceedings the Government servant is completely exonerated, he may be RSA No.790 of 1993 6 allowed to cross the efficiency bar with effect from the due date retrospectively unless the competent authority decides otherwise. If, however, the Government servant is not completely exonerated his case for crossing the efficiency bar cannot be considered with retrospective effect from the due date. Such cases can be considered only with effect from the date, following the conclusion of the disciplinary/vigilance case, taking into account the outcome of the disciplinary/vigilance case.” The learned trial court held that in view of the admitted position, the order stopping the efficiency bar of the plaintiff was in consonance with law and issue No.2 was rightly decided. There was no other dispute in suit it was ordered to be dismissed. Finding recorded by the learned trial court has been affirmed by the learned lower appellate court and thus, a concurrent finding has been recorded by the learned courts below holding therein that the order of the competent authority stopping the plaintiff's efficiency bar was valid order. Learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial question of law:- 1. Whether the finding of the learned courts below on issue No.2 is perverse and outcome of misreading of provisions of statutory rules in holding that the stoppage of the plaintiff at efficiency bar did not amount to penalty? RSA No.790 of 1993 7 In support of this contention learned counsel for the appellant vehemently contends that in view of the facts and circumstances of the case the order was to be held as a penalty, in service service record of the plaintiff/appellant no adverse remarks were recorded or ever conveyed till the passing of the impugned order. It is also the contention of the learned counsel for the appellant that the only ground of denying of crossing of efficiency bar of the plaintiff/appellant disclosed by the defendant is that on 5.4.1979 when he was to cross efficiency bar but he was found to be absent from duty for which he was charge-sheeted and therefore,order was a penalty which could not otherwise be sustained as it amounted to double jeopardy. On account of absence plaintiff was ordered to be retired compulsorily by way of punishment. However, on consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellant. Learned courts below have rejected the plea of the plaintiff/appellant, primarily relying upon the instructions of the Government which clearly stipulated that the person would not be entitled to cross efficiency bar if there is a departmental proceedings pending against an employee. It is not in dispute that on the date when the competent authority was to consider the case of the plaintiff/appellant for crossing of efficiency bar departmental proceedings were pending against him. It also cannot be disputed that the person is not entitled to increment in absence of specific order by the competent authority. There arose an occasion for the competent authority to pass order on 1.4.1979 due to pendency of RSA No.790 of 1993 8 departmental proceedings. It is also not in dispute that pursuance to the departmental proceedings the appellant/plaintiff stood compulsorily retired and therefore, the courts below rightly held that as per the instructions applicable to the case of the plaintiff i.e. Ex.D.1 he was not entitled to cross efficiency bar. The findings recorded by the learned courts below is based on appreciation of evidence, documentary and oral which does not call for any interference by this court in regular second appeal. The substantial question of law framed is answered against the plaintiff/appellant. Consequently the appeal is ordered to be dismissed but with no order as to costs. 17.3.2009 (Vinod K.Sharma) rp Judge