'••' ( HI6H COURT OF CHHATn:S64RH AJ BILASPUR Writ Petition No. 3456/2006 PETITIONER : R.S. Nayan, S/o Shri 6.5. Nayan. Aged about 40 years, Working as Junior Technical Assistont (J.T.A.), Chhattisgarh Warehousing Coryorution, Raipur, R/o Ketka Road, Surajpur, District Surguja (C.©.)at present R/o 97, Anand Nagar, Raipur (C.6.) ^ Vsrsys RESPONDENTS 1. Chhattisgarh S-hate Warehousing Corporation, through its Chairman, Mantrafaya, &au Kalyon Ssngh Bhowtin, Raipur (C.6.) 2. The Managing birector, Chhattisgarfi State Warehousing Corponxtien. Manl-raloya, &.SCS. Bhawan, Rdpur (C.6.) w Writ Petition Under Article 226/227 of the Constitutlon of India Division Bench: Hon'ble Shri I.M. Quddusi & Hon'ble Shri N.K. Aaarwai. JJ. Present: Shri Prashont Jayaswal, Senior Advocate wi-Ni Shpi Siailendni Sharma, counsei for the petitioneF. Shri 8.&. Suru. counse! for the reqiondents. OftAL OR&ER (Passed on 17th day of June. 2010} Per I.M. Quddusi. J. By means of this writ petition, thjs petitiorBr has pruy%d for quashing of the impugned order dated 27-04-2006 (Annexure P-3) Withholding three annua! increments with cumulative effect and also dechrin9 Kegulation 22(l)(c) read with 22(25(iv) of the Chhattisgarh Warehousing Staff Reguhtion, 1962 uitra-yires Article 14 of the Constitution of India. 1 us' 2. Brief facts of the case are that 1+ie petitioner was working as Bronch Manager in •rtie Chhattisgarh State Warehousing Corporation at Surojpur. A show cause notice wus issued to him on 13-01-2006 by the Managing Director of Chhatt-JS9arh State Warehousing Corporation, Raipur mentioning irregular-ities found in -riie inspection of his bnmch mcde during the period 25-11-2005 to 11-12-2005. TTie petitioner submitted his reply on 15-01-2006 ctarifying the position and denying caretessness from his side. 3. On the basis of reply to show cause, the Managing Diractor and •1+ie Disciplinary Authority issued the impugned order of punidiment withhotding his three annual mcremeirts with cumutative effect. Being aggrieved by the impugned order, tiie instont petition has been filed. 4. We have heard learned counsel for the parties oBid •Nhe perused the mcrterial availabte on record. 5. The question arose bsfore this Court as ts wrtie-ther the punishment imposed agninst tiie petitioner wiltiholding his ttwee annual increments with cumulative effect is u major puntehment or a minor punishment. 6. Before proceeding fufther it is necessary to reprcduce the relevant provisions of Chhattisgarh State Wafehousing S-haff Re9ulation, 1962 (for short the Regutation, 1962). Regulation 22 is relevant which is reproduced asunder: "22. Imposition of Penalties. 1. Any employees committing a breach of the regulations of the Corporation or being guilty of negligence, inefficiency or indolence in performarace of his duties or knowingly doing anything determmtal to the interests of the Cor-poration or in conflict with its instruction or commhting a brasch cf ''S.. ?'<f '•% 'A t!5»,^ t •~%;''] E l^ \^J '^iiiBsstiy disciplirre or being guihy of any oltier act of misdemetBiour or is convicted of a crimirul offence shalf be liable to the following penalties. (a) Fine (b) Cenaire (c) Deldy or stoppage of increment or promotton. (d) Reduction to a lower post in his permanent class or to a tower stage in his in his incrementail sco.Ie. (e) Recovery from pay of the whole or part of pecuniary loss caused to -the Corporation by the employee. (f) Removal (g) Dismissal Provided 1hat the penatty of fine didl be imposed on ensployees of class IV onty. 2. The power to impose a penalty under StA-regulation (1) shult be exercised: (i) In •rtie case of ciass I emptoyees o'ther than Atoneging Director, in respect of ail penaltiss by •ttie Board of Directors, and in the case of class II employees in respect of all penalties except the penaity as specified in CIauses (b) & (c) of Sub-Regulation (1) by the Executive Committee subject to rectification by -riie Board. (ii) In -tiie case of class III and class IV employees, in respect of all penaities, and in the case of cldss EE emp!oyees penalties as specified in ciouse (b) and (c) of 5ub-fteaukition (1) by the Managing birector. (Regional AAanagers to act as appomting authopit/, discipfinary ou'thority aid terminating cuthority in •their Region for Chas IV staff. Authority: Board of Directors meeting Resolution • No. 14 dt. 4.7.81). Qii) In the cose of -the Mana9ing Dir'ector in respect of all penaities except the penalties specified in clause (f) <md (s) of Sub-Regulation (1) by the Sta-te ©overnment in consultatjon with fhe Centnsl Warehousing Corporation. /^-^". ""•<, '\ ;.<>.. ' '•' ^J - ¥-' 4 a^ (iv) No punishment other than that specified in Sub- Reguiation (l)(a), l(b) ond l(c) slwil be imposed on any empioyee without formal charges being framed against him ond without aiying him an opportunity for tending on expianation in writing and cross examining the witness ogamst him, if any and if producing defence. (v) Notwithstanding any •Hiin9 contamed in Ihese regulations, punishment to employee on deputation from the State Sovemffient or Sovemment Institution or Cooperative Societies shaii be imposed in accordance with -the rules ond procedure laid down in this behaif in -their parent service. 6. A bare perusal of clause (c) of Re9ufcxtion 22(1) would show that only delay or stoppage of increments or promotion has been mentioned, but it has not been mentioned therein whether stoppage of increment with cumulative effect or without cumulative effect is liable to be owarded. But in Ctause (iv) of ftule 22 (2) provides 1+iat no punishment wther than that ^iecified in Sub-Regutation (l)(a), l(b) and l(c) shall be imposed on any employee without formal charges being frameda9ainst him and without giving him cn opporhjnily for tendm9 on ©(planation in writing and cross examining the witness against him, if nny and if producing defence. Therefore, -the punishmertt mentioned in Sub-regulations (l)(a), l(b) ond t(c) are minor punidiments and rest are major punishments. Delay or stoppage of incremfflil's or promotion are minor puniriiments as mentioned in Regulation 22(l)(c) whereas, reduction to a lower post in his permanent ctass or to a lower stage in his incremental scale bs mentioned in Regulation 21(l)(d) are major punishments. 7. Stoppage of annual increments con be in two ways IA. one is without cumulative effect and the other is with cumulattve effect. Awarding punishment of stoppage of annual mcrements v^s without cumukitive effect, does not affect -the fulure emoluments or scale of pay but if wi-thholding of incrennen-ts with cumubtive effect is awarded, it would crffect the career of eai emptoyee for ever till his retirement ra-tfier it will affect on his pensionary benefits atso. Therefore. in our opinion, punishment of withholding three annual increments wfHicumubtive effeet in the instant case would come in reduction to a lower stage in the incrementat scale of the petitioner which iscovered byclause (d) of Rule 22 (1) which is a major punishinent. It has been provided m Ctouse (iv) of ftule 22 that no punidiment shall be inyosed without formal char9es being framed against delinquent employee and without giving him an opportunity for tending an wqsfanotion in writing and cross-examining the witness against him, tf any and if producing defence. 8. In the case of Kulwwrt- Sfnali 6ilt vs. Thf ^ate of Pwilab: reported in 1990 (6) SIR 73. Hon'ble the Apex Court has enalysed the above situation in respect of Punjab Civil Services Punidiment ond Appeal) Rules, 1970 (for short 'the Rutes, 1970"). Rule 5 with regard to penalties is quoted as umters "5. Penalties:- The following penalties may, for 9ood and sufficient reaaons. and os hereinafter provyed, be imposed on a Sovemment employee namely:- Minor Penaltjes i) Censure; ii) withholding of his promotions: iii) recovery from his pay of 1te whote or part of any pecuniary loss caused by him to Ihe ©overnmentby negligence or breach of erders: iv) wHiholding of increments of pay; Maior Penalties v) reduction to a lourer stage in •the time saile of pay for a specified period, with further direcl-ions as to whether or not the ©ovemmentemployee wiU earn increments of pay during the period of such reduction and whether on the expiry of such period, the raluction \\3 will or will not have 1+ie effect of po^pening the future increments of his poy; vi) reduction to a lower time scate of pay, grade, post or seryice which ^ioH ordinarily be a bar to the promotion of the Sovemment emplayee to the time- scale of poy, grade, post or ssrvice from which he vws reduced, with or without furt+ier directions regarding conditions of restoration to the grade or pest OP service from the Sovsmment employee was reduced and his seniority ond poy on such restorotion Ihat grade, post or service; vii) compufsory retirement; viii) removat from service which riidl not be a disqualification for fu'hire employment under the Sovemmenl-; ix) dismissal from service which diall onlinarily be 01 disqualification for fu+ure employment undep the ©overnment." 9. In the above regard, Hon'ble -the Apex Gourt' Iws held that withholding of increments of pay sinyliciter certainly is a minor penalty comes within the meoning of Rule S(iv) of the Rules, 1970 but when penalty was impo«dwithhotding +wo increments i.e. for two years with cumulative effect, it would fridi^)utably means that the two increments eamed by the employee was cut off as a measur'e of penalty for ever in his upward march of earnhig higher scale of pay. In other words 1fte clock is put bettk to a lower stage in the time scate of poy and on eaqiiry of •(wo years the clock start-s working from 1hat stage afresh. The insidious effect of the impugrwd order by necessary imptication, is •that the appellant employee is reduced in his time scale by Iwo places and it is in perpetuity during the rest of •the tenure of his fiervice with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The rela^awt para 4 of the judgment is quoted os under: "4. Withholdin9 of increments of pay smpBciter undoubtedly is a minor penalty within 1fie meaning of | Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time-scale of pcy for a specified \ 1-0 period with further directions as to whether or not the Sovernment employee shdll eam mcrements ofpcfyf during the period of such reductipns and whether on the expiry of aich period -the reduction will or wdll not have •the effect of postponing -the fu'h4re incr«nents of his pay. It is an independent headof penalty oml it could be imposed os punishment in on oppropriffte ease. It is one of the mcyor penalties. The impugned order of stoppage of •two increments with cumutative effect whether would fall within the meaning of Rute 5(v)? If it so falls ftules 8 and 9 of Ihe Rules require conducting of regular enquiry. The contention of Shri Ncyar, leamed counsel for the State is -riwt withholdin9 two increments with cumulativ®effect is only a minor penalty as it does not cunount to reduction to a bwer stage in the time'scale of poy. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certamly comes within the meoning of Rule 5(iv) of the Rutes. But when penalty was imposed wi-thholding Iwo increments i.e. for two years with cumulative effect, it would indisputably mecn -Hiat the two increments eamed by •the employee was cut off as a measure of penal'ty for eyer in his upward march of eaming higher sca^e of pay. In other words the clock is put buck to a (ower stcge in •riie time-scale of pcy and on expipy of twe years the clock Starts uwrkin9 from •that stcge afresh. The insidious effect of the impugned order, by necessary implication. is thot the appellant employee is reduced in his time-scnle by two places and it is in perpe-hiity during tiie rest of tte Iwiure of his service wilh a direction that two years' increments would not be counted in his time-scale of poyas ameasure ofpenalty. The words are the skin to the languoge which if pealad off Its trueeolour OP its reailtant effects »»ouldbecome dpparent. When we broach -the problem from tkis perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted -that the Division Bench in Sarwon Singh v. Stote of Punjab & Ors, I.L.R. 19S5 (2) P & W. i93, speaking for the division bench, while considering simikir question, in paragroph 8 held that the stoppage of increments wi+h cumulative effect, by no stretch of imagination falls within ctause (v) of Kule 5 or in rule 4.12 of Punjab Civil Services Rutes. It was V^T 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 cuthority cs 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 whe-ttier the reduction shall operate to postpone the future increments of his pay. In aieh cases withholding of the increroents without cumulative effect does not at all arise. In ccise where the increments are wi-Ahoid with or without cumutative effect Ihe (Sovemment employee is never reciuced to a lower 3+098 of time scaie of pay. Accordingfy it was held thot clause (iv) of itute 5 is opplicable to the facts of that cose. With respect w» are unable to ogree with the 1-ligh Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if theeffect 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 1-ligh Court- is given acceptance, it would empower the disciptincry outhority to impose, under the garb of stoppage of increments, of earning future increments in •Ae time scale of pay even permanently wi1+i expressly stating so. This preposterous eonsequences cannot be permitted to be perineated. ftule 5CEV) does not empower the discipiinary autiiority to impose penalty of withhoiding incremsnts of poy with ajmulative effect except after holding inquiry ond following the prescribed procedure. Then •fhe order wouid be without jurisdiction or outhority of iaw, and it would be per se void. Considering from this oyigle we have no hesitation to hoid that the impugned order wouid come wi-riiin 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." 10. It is necessary to point out that in ckwse (d) of ftule 22(1) of the Regulation, 1962 ond clause (v) of Rule 5 of 1+ie Rutes, 1970 are similar. 11. At this stage, lecxrned counsel oppearing for -tiie respondents has relied upon subsequent judgment of Hon'ble the Apex Coyrt in the case of 5A»fe o^ Punjeto vs. Nirmal Singh: fl- reported in (2007) 8 SCC 108 in which -Hie punishment of stoppage of two annuat increments wi-Hi cumulative effect was imposed upon the respondent of that civil appeal (Nirmal Singh) yide order dated 20-10-2003 ond the Hon'ble the Apex Courl- had observed that stoppa9e of two annual increments with cumubtive effect is a minor punishment. 12. In view of above conflicting decisions in respect of the same Rute i.e. Rule S of fhe ftules, 1970, the three Judges bench of Apex Court in the case of Kulwant Sfngh 6ill (supra) has held that stoppage of two annual increments with cumulative effect would amount to major punishment cuid the ajbsequent decision of the Apex Court of two Judges bench in the case of Stffte ef Punjab (supra) jt has been held that stoppage of two increments wilh cumutative effect would amount to minor punishment. 13. Without 9oing further into this controversy, we come to the well settled law of Hon'bte the Apex Court that taw hid down by a bench of targer streng-th of the Apex Court woutd prevall over the bench of tesser strength. This is supported by a constitution bench in the case of Ceirtral Board of Dawoodi Bohra Community & enother vs. State of Mahamshtra S aworte/" reported inAIR 2005 SC 752 (see paragraph 12). 14. Since 1+ie ccise of Kutwatt Singh 6III (supra) has been decided by the three judges bench and the case of State of Punjab (supro) has been decided by two judges bench, in our opinion, the decision of the larger bench wilt prevail over •rtie decision of the lesser strength of two judgeS. Therefore, we hove no hesitation to hold that in the mstant case stoppage of three annual increments with cumulotive effect is a major punishment which woutd come under ckuse (d) of Rute 22 (1) of [ the Regulation, 1962 and in that case, the respondents should 10 p--5 have followed the provisions of Clause (iv) of Rute 22(2) thereof but the same has not been done. Therefore, the punishment imposed against the petitioner is without providing him reasonable opportunity to defend his case which is against the provisions of hw. 15. With regard to prayer regarding Rule 22 (1) (c) of the Regulation, 1962 ultra-vires the article 14 of the Constitution, in view of the above discussion, we are of the opinion that Regulation 22(1) (c) is not uttra-vires of the constitution as both the clauses i.e. stoppage of annual increments simpliciter, without cumulative effect and stoppoge of annual increments with cumulative effect would come under the category as already mentioned above. 16. Tsn the resutt, the writ petition is aliowed in part and the impugned order of punishment dated 27-04-2006 is quashed but 1+iis wili not debar the respondents to conduct enquiry in accordance wi'th law. order asto costs. Sdf- N.K. Agarwal Judge Sd/- '•IV. Quddusi Judge Kw