IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4423 of 2009 Date of decision: 22.09.2010 Rita Bharwal …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Anand Sharma, Advocate. For the respondents: Mr. Vivek Thakur, Additional Advocate General. Deepak Gupta, J. (Oral) 1. The only question which arises for consideration in this petition is whether the procedure prescribed in sub-rules 3 to 23 of Rule 14 of the CCS (CCA) Rules (hereinafter referred to as ‘the Rules) should have been followed in view of Rule 1-A of Rule 16. 2. Briefly stated the facts of the case are that the petitioner was working as Medical Officer in Regional Hospital, Una. On 4th July, 2009, a memorandum dated 4th July, 2009, was issued to the petitioner informing her that respondent-State proposes to take action against the petitioner in terms of Rule 16 of the Rules. The statement of imputation of misconduct and 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. misbehaviour on which action was proposed to be taken reads as follows: “That Dr. Rita Bherwal, Medical Officer, Regional Hospital Una was put on emergency duty and other duties for the month of March, 2009 but refused to receive the duty roster and is not performing any emergency duty, 2nd on call duty, Medico-legal duty and post-mortem duty etc. which is causing inconvenience to the public and by doing so she failed to maintain devotion to duty & thereby contravened the provisions of Rule 3 of the CCS (Conduct) Rules, 1964.” The petitioner filed reply to the memorandum and though she did not directly deny the fact that she had refused to take the document, as alleged, but according to her, she had continued working and no public inconvenience was caused due to her not accepting the said document. Therefore, at best what could be said was that she had not accepted the duty roster. However, the other part of the allegation that she was not performing any emergency duty, call duty, medico-legal duty or post-mortem duty was not accepted by her. In fact, vide earlier letter she had requested that she may be supplied with the letters / instructions directing her to perform emergency duty, call duty, medico-legal duty, post-mortem duty etc. According to her, she had not received the documents on the basis of which memorandum had been issued. After considering her reply, the Disciplinary Authority imposed a penalty of stoppage of three increments without cumulative effect. 3. Admittedly, no inquiry in terms of Rule 14 sub-rules (3) (23) was held but the State proceeded on the basis that this was a minor penalty, which could be imposed without holding an inquiry and only on consideration of the reply of the petitioner. 4. Mr. Anand Sharma, learned counsel appearing for the petitioner has withdrawn my attention to Rule 16 (1-A) of the Rules, which reads as follows: “(1-A) Notwithstanding anything contained in Clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under Clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty.” 5. A bare reading of Rule 1-A, quoted hereinabove, shows that this Rule envisages three contingencies, where even in case of imposition of minor penalty, inquiry has to be conducted in accordance with sub-rules (3) to (23) of Rule 14. The three contingencies envisaged by this Rule are: a. Where the withholding of increments of pay is likely to adversely affect the amount of pension payable to the Government servant; b. Where the increments of pay are withheld for a period exceeding three years, and c. Where the increments of pay are withheld with cumulative effect for any period whatsoever. In the present case, conditions (b) and (c) are not applicable, since the increments were withheld for a period of three years, i.e. less than a period exceeding three years and they have not been withheld with cumulative effect. However, the pension of the petitioner is definitely bound to be adversely affected, in case this order is permitted to stand. 6. The petitioner was born on 5th June, 1954 and, therefore, is to retire on 30th June, 2012. The order in question has bee passed on 6th October, 2009, meaning thereby that for three years, the petitioner will not be entitled to any increment. It is well known that pension and other retiral benefits are calculated on the basis of the last pay drawn by an employee. Therefore, the effect of this order dated 6.10.2009 is that the petitioner shall be drawing much less pay than she would have normally drawn at the time of retirement. So, this will have a permanent adverse effect on the pension of the petitioner and, therefore, the case is squarely covered under condition No. 1 envisaged by Rule 1 – A as detailed by me hereinabove. 7. In view of the above discussion, order dated 6.10.2009 is illegal, since the procedure under sub-rules (3) to (23) of Rule 14 was not followed while holding the inquiry and before imposing penalty, which would permanently affect the pension of the petitioner. Therefore, the order dated 6.10.2009 is quashed and set aside. No order as to costs. (Deepak Gupta) Judge September 22, 2010 (rajni)