Regular Second Appeal No. 301 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 301 of 1987 Date of decision:- 18.09.2009 State of Punjab ...Appellant Versus Darshan Singh ...Respondent. CORAM: HON'BLE MR. JUSTICE M.M.KUMAR Present:- Ms. Sudipti Sharma, AAG Punjab for the appellant. M.M.KUMAR, J. (Oral) The State of Punjab is in appeal against the judgments and decrees passed by both the Courts below whereby the order dated 25.01.1982 passed by the Director, Food and Supply, Punjab, against the plaintiff-respondent on 02.02.1982, was set aside. It is appropriate to mention that vide order dated 02.02.1982 the Department without holding any regular inquiry had inflicted punishment of stoppage of one increment with cumulative effect and also has ordered for recovery of a sum of Rs.978.75 paisa. Both the Courts below have concurrently recorded a finding that after issuing charge-sheet and filing of reply by the plaintiff- respondent, no regular departmental inquiry was held. It is appropriate to mention that the plaintiff-respondent was working as Sub Inspector in the Department of Food and Supplies in the State of Punjab. The punishment Regular Second Appeal No. 301 of 1987 -2- of stoppage of increment is provided by Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Before the amendment of these rules, there was no difference between stoppage of increment with cumulative effect or without cumulative effect. However, the judgment of Hon'ble Supreme Court clarified that Rule 5(iv) cannot be construed to mean that punishment holding of increment with cumulative effect could be inflicted without holding regular departmental enquiry because it would be part of major penalty. Therefore, the substantial question of law, which would arise in the present case is as follows:- “Whether stoppage of increment with cumulative effect is a major penalty or a minor penalty”? This Court in the case of State of Punjab and others v. Ram Lubhaya: I.L.R. 1983 (2) P & H 123 has held that Rule 5(iv) would not result into inflicting of stoppage of increment with cumulative effect, which would be a major penalty. The aforesaid view was also taken by this Court in Sarwan Singh v. State of Punjab: I.L.R.1985 (2) P & H 190. The aforesaid view has been approved by the Hon'ble Supreme Court in Kulwant Singh Gill v. The State of Punjab: 1990 (6) SLR (SC) 73 by holding as under:- “ XXXX 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 Regular Second Appeal No. 301 of 1987 -3- 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 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 Regular Second Appeal No. 301 of 1987 -4- 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 that the Division Bench in Sarwan Singh vs. State og 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 withold 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 Regular Second Appeal No. 301 of 1987 -5- 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 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.” It is, thus evident that the question of law has to be answered against the appellant State and in favour of the plaintiff-respondent. Even otherwise, the findings recorded by both the Courts below are that the impugned order dated 02.02.1982 passed by the Director, Food and Supplies, is not a speaking order and did not answer the basic Regular Second Appeal No. 301 of 1987 -6- requirements of natural justice. The appeal is wholly devoid of merit and the same is accordingly dismissed. September 18, 2009 ( M.M.KUMAR ) vj JUDGE