In the High Court of Punjab and Haryana, Chandigarh R.S.A. No. 1840 of 1987 Date of Decision: November 27, 2009 The General Manager, Nigam Transport, Municipal Corporation, Amritsar and another …Appellants Versus Kartar Singh …Respondent CORAM: HON’BLE MR. JUSTICE M.M. KUMAR Present: Mr. T.S. Gujral, Advocate, 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. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) challenges concurrent findings of facts recorded by both the Courts below holding that the order Nos. 478-83/TA/AMI, dated 3.9.1980; 472-70/TA/AMI, dated 3.9.1980 and 968-69/AMI, dated 21.10.1981 (mentioned at Sr. Nos. (i), (ii) and (iv) of the head note of the plaint), stopping one annual grade increment each with cumulative effect of the plaintiff- respondent, are illegal and set aside. The suit of the plaintiff- RSA No. 1840 of 1987 respondent qua said orders has been decreed whereas the validity of order No. 189-94/AMI, dated 26.2.1981, inflicting punishment of stoppage of one increment without cumulative effect, has been upheld. 2. Brief facts of the case necessary for disposal of the instant appeal are that the plaintiff-respondent was working as conductor in the Punjab Roadways, Amritsar. His services were transferred to the Municipal Corporation, Amritsar, w.e.f. 1.1.1980 after constitution of the defendant-appellant Nagar Nigam Transport. The plaintiff-respondent filed a suit alleging that defendant-Appellant No. 1 has passed the aforementioned orders imposing major punishment of stoppage of increments with cumulative effect without following the Punjab Civil Service (Punishment and Appeal) Rules, 1970 (for brevity, ‘the Rules’) concerning the major penalties. It has been asserted that neither any enquiry was conducted nor any proper opportunity was given to him before passing the impugned orders. 3. The defendant-appellants contested the suit and took the stand that no inquiry etc. was required to be conducted in the matter because the punishment of stoppage of increments with cumulative is a minor penalty and the action taken against the plaintiff-defendant was in accordance with the Rules. They also raised an objection that notice under Section 396 of the Punjab Municipal Corporation Act was not served before institution of the suit. It was also urged that the suit was barred by time and not maintainable. The trial Court framed the following issues:- 2 RSA No. 1840 of 1987 “1. Whether the orders Nos. 478 dated 3.9.1980 is illegal, void etc. as alleged in the plaint? OPP. 2. Whether the orders No. 472 dated 3.9.1980 is illegal, void etc. as alleged in the plaint? OPP. 3. Whether the orders Nos. 189 of 26.2.1981 is illegal, void etc. as mentioned in the plaint? OPP. 4. Whether the orders Nos. 968 of 21.10.1981 is illegal, void etc. as mentioned in the plaint? OPP. 5. Whether the suit as framed is not maintainable? OPD. 6. Whether the suit is barred by time with regards to the orders dated 3.9.1980? OPD. 7. Whether a notice u/s 396 of the Punjab Municipal Corporation Act was necessary? OPD. 8. Relief.” 4. With regard to Issues Nos. 1, 2 and 4, the trial Court came to the conclusion that the punishments awarded to the plaintiff- respondent are major punishment and no proper procedure has been followed by the defendants. Accordingly, the trial Court set aside the orders detailed in the aforementioned issues. In so far as order No. 189-194, dated 26.2.1981 (Ex. PW2/8), covered under Issue No. 3, the trial Court found that one increment of the plaintiff without future effect was stopped, whereas the plaintiff-respondent in the head note of the plaint has claimed the same to be ‘one increment stopped with cumulative effect’. The trial Court has further observed that before 3 RSA No. 1840 of 1987 imposing the said punishment a show cause notice (Ex. PW2/6) was served upon the plaintiff-respondent to which he filed his reply (Ex. PW2/7). The reply was not considered as satisfactory and punishment was inflicted upon the plaintiff-respondent. The trial Court, thus, concluded that since the punishment was a minor one, there was no requirement of holding a regular inquiry and the punishment has rightly been inflicted. The remaining Issue Nos. 5, 6 and 7 have also been decided in favour of the plaintiff-respondent and against the defendant-appellants. 5. On an appeal filed by the defendant-appellants, the learned Lower Appellate Court has affirmed the findings recorded by the trial Court and dismissed the appeal, vide impugned judgment and decree dated 24.10.1986. 6. The only substantive question of law which would arise for determination of this Court is: “Whether stoppage of increments with cumulative effect is a major punishment obliging the punishing authority to hold a regular departmental inquiry as contemplated by Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970?” 7. According to Rule 5 as it stood at that time, stoppage of increment was one of the punishments provided by clause (iv) of that Rule. In other words it did not distinguish between the stoppage of increments ‘with cumulative’ or ‘without cumulative effect’. It would 4 RSA No. 1840 of 1987 be necessary to read Rule 5 as it stood at that time to substantiate the issue raised. The relevant portion of Rule 5 of the Rules reads thus:- “Rule 5. Penalties. – The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a Government employee, namely:- Minor Penalties (i) Censure; (ii) withholding of his promotions; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) withholding of increments of pay; Major Penalties (v) 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 will earn increments of pay during the period of such reduction will or will not have the effect of postponing the future increments of his pay; (vi) to (ix) xxx xxx xxx” (emphasis added” 8. A perusal of the aforesaid rule shows that stoppage of increment is one of the punishments provided by Rule 5 (iv) of the Rules. However, the reduction to a lower scale is the punishment 5 RSA No. 1840 of 1987 provided by Rule 5(v) of the Rules. When punishment of stoppage of increment with cumulative effect is inflicted then it results in reduction of salary permanently which adversely affects even pension which akin to the punishment provided by Rule 5(v) which deals with infliction of a major punishment. The Rule came up for consideration before Hon’ble the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab, 1991 Supp (1) SCC 504. Therefore, it has to be held that stoppage of increment with cumulative effect is a major punishment and the same cannot be inflicted without following the procedure laid down by Rule 8 of the Rules. It would be necessary at this stage to notice Rule 8(1) of the Rules, which reads thus: “8. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 5 shall be made except after an inquiry held, as far as may be in the manner provided in this rule and Rule 9 or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.” 9. A perusal of the aforesaid Rule shows that any major punishment could be inflicted only after holding an inquiry in accordance with the procedure prescribed by Rule 8 of the Rules. It requires the issuance of charge sheet, furnishing of reply by the delinquent and then holding of inquiry in accordance with various requirements of Rule 8. A detailed procedure unfolding various steps 6 RSA No. 1840 of 1987 of affording full opportunity to a delinquent employee have been prescribed by the Rule. In the absence of any such inquiry no major punishment like stoppage of increment with cumulative effect could be inflicted. It has to be concluded that in the absence of any regular departmental inquiry as contemplated by Rule 8 of the Rules no major punishment of stoppage of increment with cumulative effect could be inflicted. Therefore, the answer to the substantive question of law posed in the first para of the judgment has to be against the defendant-appellants and in favour of the plaintiff-respondent. Accordingly, the view taken by the Courts below deserves to be upheld. 10. It is needless to observe that there is no challenge to the order dated 26.2.1981 inflicting the punishment of stoppage of one increment without cumulative effect at the instance of the plaintiff- respondent. Nor any such challenge could have been made under the law. Therefore, the aforesaid order has been rightly upheld by the Courts below. There is no opportunity to upset those findings. 11. As a sequel to the aforesaid discussion, the appeal fails and it is accordingly dismissed. (M.M. KUMAR) November 27, 2009 JUDGE Pkapoor 7