IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1350 of 1990 Date of decision: December 14th 2011 Darshan Singh …Appellant Versus The Commissioner and Secretary to Govt. Haryana, Labour and Employment Department and another. …Respondent CORAM : HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present:- Mr. Parminder Singh, Advocate for the appellant. Mr. Rajeev Kwatra, Senior Deputy Advocate General, Haryana for State-respondent. *** MOHINDER PAL, J. Darshan Singh-appellant has filed this second regular appeal against the judgments and decrees dated 02.12.1986 and 26.04.1990 passed by both trial Court and First Appellate Court respectively. In the result, suit of the plaintiff was dismissed. Prayer in this appeal is to set aside the judgments and decrees of both the Courts below. The facts giving rise to the appeal are stated hereunder:- The plaintiff is an employee of Haryana Government serving as District Employment Officer. While posted at Town Employment Exchange Bahadurgarh from 20.12.1980 to 04.08.1982, RSA No.1350 of 1990 [2] he got registered the name of his wife Smt. Gurvinder Kaur in the trade of High School Teacher. Smt. Gurvinder Kaur at that time was serving as a teacher in Government Girls Higher Secondary School, Sunam on regular basis and was residing there. Show cause notice was issued upon the plaintiff by defendant no.1 at the instance of defendant no.2 on the accusations that registration of Gurvinder Kaur already working as a teacher was not permissible under the instructions contained in para 7.4 of National Employment Service Manual and also violation of other instructions of the government. In reply to show-cause notice, plaintiff clarified that instructions of the government are made applicable to only those persons who are employees of Haryana Government, whereas his wife was working under Punjab Government. After considering the reply submitted by the plaintiff, defendant no.1, vide order dated 03.12.1984, imposed the punishment of stoppage of two annual increments with cumulative effect on the plaintiff. This order was challenged by the plaintiff to be wrong, illegal, unconstitutional, non-speaking and against facts. In written statement, while controverting the averments made in the plaint, defendants stated that order passed by the authorities is perfectly in order. On the basis of the pleadings, the trial Court framed the following issues:- 1. “Whether the order dated 03.12.1984 stopping the two increments of the plaintiff with cumulative effect is against law, facts and unconstitutional and not binding upon the plaintiff on the grounds mentioned in the plaint? OPP. 2. Whether this Court has no jurisdiction to try the suit? RSA No.1350 of 1990 [3] 3. Whether the notice u/s 80 CPC is not valid? If so, to what effect? OPP. 4. Relief.” The parties led evidence in support of their respective claims. Under issue no.1 , the trial Court held that stoppage of two increments with cumulative effect is a minor punishment and for this no regular enquiry was required and decided the issue against the plaintiff. Other issues were decided in favour of the plaintiff and the suit of the plaintiff was dismissed. First appellate Court also affirmed the findings of the Trial Court and maintained the judgment of the trial Court. At the time of admission of this appeal, it was ordered vide order dated 28.08.1990 that this appeal be listed for hearing after decision of CWP No.8623 of 1988. Vide order dated 09.03.1994, the Division Bench of this Court disposed of the aforesaid writ petition and held as under:- “ Under the circumstances, the petitions are disposed of by holding that order impugned by which the petitioners were awarded the punishment of withholding of increments with cumulative effect would stand modify and be deemed to be orders of withholding of increments simpliciter. To make it more clear, it is held that the writ petitioners Sham Lal and Ved Parkash in CWP No. 8623 of 1988 and 4447 of 1993 respectively shall be deemed to have been awarded punishment of stoppage of one annual grade increment without cumulative effect and petitioner Sarb Dayal Rai in CWP No.14665 of 1989, withholding of three annual grade increments.” The following substantial questions of law are framed:- RSA No.1350 of 1990 [4] i) Whether under the given facts and circumstances, the order of punishment of two increments with cumulative effect, without regular inquiry or following principle of natural justice is ever sustainable in the eyes of law? ii) Whether stoppage or two increment with cumulative effect, is a major punishment or of minor punishment, under the law? iii) Whether the arbitrary approach and of without any instructions or rules set in the civil services rules, only incorporation of a name of candidate in the employment exchange is illegal, under the discriminatory approach of the respondent department? I have heard learned counsel for the parties and have gone through the record carefully. It is the case of the plaintiff that penalty of stopping increments with cumulative effect could not be inflicted without holding a regular inquiry. Short question involved in this appeal for adjudication is whether the order of stoppage of increments with cumulative effect comes under “minor punishment” or “major punishment”. Though this case was ordered to be listed for hearing after the decision of CWP No.8623 of 1988 but the case of the appellant is distinguishable from the decision rendered in the writ petition as the plaintiff/appellant has challenged the judgments and decrees of both the Courts below. It has been held by the Hon’ble Supreme Court of India in case of Kulwant Singh Gill v. State of Punjab 1990(6) S.L.R. 73, wherein it was held as under:- RSA No.1350 of 1990 [5] “ Withholding 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 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(v)? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding 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. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(v) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably means that 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 RSA No.1350 of 1990 [6] 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 services 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 pealed 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 that the Division Bench in Swaran Singh v. State of Punjab and 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 the 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 for 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 withheld 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 RSA No.1350 of 1990 [7] 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 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 or 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.” The aforesaid view of the Hon’ble Supreme Court of India has been followed by this Court in case State of Haryana Vs Naresh Kumar 1991(3) SLR 196”. It is evident from the facts of the present case and admitted by respondent-state that no regular enquiry was conducted before inflicting the penalty of stoppage of two annual increments with cumulative effect on the plaintiff by the disciplinary authority. Learned counsel for respondent-state frankly and fairly conceded before me RSA No.1350 of 1990 [8] that proper procedure as required under rules has not been adopted by the disciplinary authority. In view of the ratio of law laid down in Kulwant Singh’s case (supra), the impugned order passed by the disciplinary authority/defendant no.1 is not sustainable in the eyes of law and the same is set aside. All the substantial questions of law are answered in favour of the appellant. For the reasons recorded above, the findings recorded by both the Courts below on issue no.1 are reversed. The impugned order passed by the defendant no.1 is set aside. Resultantly, the appeal is allowed. The judgments and decrees of both the Courts below are set aside. Consequently, suit of the plaintiff is decreed. (MOHINDER PAL) December 14, 2011 JUDGE p.singh