C.W.P. No. 8521 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8521 of 2009 Date of Decision: March 4th, 2010 G.C. Verma ----Petitioner Versus Union of India & others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Jagdeep Jaswal, Advocate for Mr. H.S. Saini, Advocate for the petitioner. Mr. S.S. Khurana, Advocate for Mr. K.C. Bhati, Advocate for respondents No. 1 to 4. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? **** M.M. KUMAR, J. The instant petition filed under Article 226 of the Constitution is directed against the order dated 05.07.2007 passed by the Central Administrative Tribunal, Chandigarh Bench (for brevity 'the Tribunal) in O.A. No. 990-HR/2005. Facts:- Petitioner has been working in the post of Chief Engineer, Western Command, Chandigarh-respondent no.3. The aforesaid office C.W.P. No. 8521 of 2009 -2- is under the control of Ministry of Defence, New Delhi- respondent no.1. After working on various posts, he came to be promoted to the post of Upper Division Clerk from 01.12.1969 and Assistant on 13.09.1995 and later on as Office Superintendent. He superannuated on 31.10.2002. During the period when he was working as Upper Division Clerk/ Cashier, he was issued a charge-sheet dated 15.05.1987 under Rule 14 of Central Civil Services (CCA) Rules, 1965. The charge-sheet culminated in an order of compulsory retirement dated 19.07.1988, which was challenged by him before the Tribunal in O.A. No. 1032/HP/1990. On technical ground of non furnishing the inquiry report, the order of compulsory retirement was set aside by the Tribunal vide its order dated 24.03.1992 (Annexure R3). Accordingly, the proceedings were re-commenced from the stage of supply of inquiry report. The aforesaid proceedings were finalized by passing an order dated 12.08.1992 (Annexure R4). Consequently the petitioner was awarded penalty of reduction of pay by three stages from Rs. 452/- to Rs. 416/- in the time scale of pay of Rs. 330-560. The petitioner was treated absent from duty from 27.06.1983 to 21.07.1983. He was considered under deemed suspension from 19.07.1988 to 12.08.1992. It is pertinent to notice that on 19.07.1988 the order of compulsory retirement from service was served on the petitioner. It was also concluded that the suspension period was to be treated as dies non. The statutory appeal preferred by the petitioner was dismissed on 20.02.1998. However, the revision petition to Vice Chief C.W.P. No. 8521 of 2009 -3- of Army Staff partly succeeded. The revisional authority upheld the reduction of pay by three stages from Rs. 452 to Rs. 416 in the scale of Rs. 330-10-380-EB-12-500-EB-15-560. However it was to remain in effect for a period of three years w.e.f. 06.09.1992 when petitioner joined after reinstatement. The revisional authority also held that the petitioner was to earn the increment of pay during the period, he has been given reduced pay for three years and that after three years, the reduction in pay was not to have the effect of postponing his future increments of pay. The period of absence from 27.06.1983 to 21.07.1983 was to be treated as dies non. The period from 19.07.1988 to 06.09.1992 was to be treated as deemed suspension and he was to be paid subsistence allowance. Accordingly the aforesaid order attained finality, as the petition made to the Union of India was rejected on 27.06.2005. Aggrieved by the order of punishment, the petitioner filed an Original Application No. 990/HR/2005. The Tribunal after noticing the facts, firstly considered the question concerning deemed suspension from 19.07.1988 (when petitioner was compulsory retired) to 06.09.1992 (when he was reinstated into service). It has also gone into issue whether reduction to a lower stage in the time scale was to be considered as major penalty, which was to adversely affect even pension. The Tribunal concluded in para 10 and 11 by observing as under: “.........10. After considering this clarification, rather change, and reading both these provisions C.W.P. No. 8521 of 2009 -4- together we have absolutely no doubt in our mind that even prior to amendment of 2004 the provisions of rule 11 (iii)(a) meant reduction to lower stage by one stage only as that was the necessary meaning of reduction to lower stage in the time scale. It also had the words “for a period not exceeding 3 years” whereas under clause (v), the distinction is that as distinguished from clause (iii) (a) if the punishment is reduction to a lower stage in the time scale of pay for a specific period, the penalty has to be treated as major penalty. Thus, if reduction is to the next lower stage in the time scale of pay, a person may be enjoying at one time, it is a minor penalty, but if it is by two stages i.e. more than one, then it has to be treated as major penalty. Hon'ble Supreme Court in more than one occasion has explained that for understanding the intention of the rule making authority if there be some ambiguity in rules, assistance can be taken from the amended provision to come to a conclusion that this was what the authority had intended from the very beginning unless the amendment brings a change altogether. 11. Considered in the light of this distinction and finding that punishment of reduction in the case of the applicant is by three stages even if it C.W.P. No. 8521 of 2009 -5- was not having any cumulative effect and that it is for a period of 3 years, the penalty imposed upon the applicant is held to be a “major penalty”. The Tribunal also considered the effect of compulsory retirement of the petitioner, which was set aside on account of non furnishing the inquiry report with liberty to competent authority to proceed further from the stage of supplying a copy of inquiry report to him. Thereafter, the proceedings were completed and petitioner was reinstated in service. He was awarded major penalty by reducing him to three stages. The period from the date of compulsory retirement up to the date of reinstatement was treated as deemed suspension under Rule 10(4). Accordingly, the decision of the competent authority to treat the period as deemed suspension has been upheld. Likewise, the contention of the petitioner that he has been acquitted in criminal proceeding and as such, the entire period is required to be regularized by treating him on duty with full pay allowance, has also been rejected. We have heard learned counsel for the parties at length and are of the view that the order of the Tribunal does not suffer from any legal infirmity, warranting interference of this Court. It is well settled that when a punishment based on disciplinary proceedings against a delinquent employee, results in permanent monetary loss then it has to be regarded as a major punishment. The matter is no longer as res integra in the case of Kulwant Singh Gill v. State of Punjab 1991 Supp (1) S.C.C. 504, the issue has cropped up before Hon'ble the C.W.P. No. 8521 of 2009 -6- Supreme Court where similar rule of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 has been discussed. The question has been answered by Their Lordships of Hon'ble the Supreme Court in para 4 in the following words: “.........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 & 9 of the Rules require conducting of regular inquiry. 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(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean 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 the stage afresh. The insidious effect of the impugned order, by necessary implication, is that the C.W.P. No. 8521 of 2009 -7- appellant employee is reduced in his time scale by two places and it is in 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 peeled 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. When we examine the facts of the present case in the light of the observations made in the aforesaid part and the provisions of Rule 11(iii)(a), the necessary corollary is that the stoppage of reduction to lower stage in the time scale by three stages would cause permanent loss and petitioner would not be able to regain the stage from which, he was reduced in his upward march of earning higher scale of pay. The petitioner may keep easing increments in the reduced pay scale by three stages but there is nothing in the order of the revisional authority that the effect of reduction to three stages could ever be nullified. The revisional authority has also clarified that the reduction in pay scale was not to have the effect of postponing the future increments of pay but all the same, the reduction by three stages in the time scale for a period of three years was not to ever come back. Therefore, it has to be regarded as major penalty. We are further of the view that the period from the date of compulsory retirement to the date of reinstatement on account of the C.W.P. No. 8521 of 2009 -8- order dated 24.03.1992 passed by the Tribunal in O.A. No. 1032/HP/1990 also does not suffer from any legal infirmity. A five Judge Bench of Hon'ble the Supreme Court in ECIL v. B. Karunakar 1993(4) SCC 727 had suggested the supply of inquiry report in such like cases where due procedure was not followed as per the law laid down by Hon'ble the Supreme Court and the delinquent employee is required to be placed under suspension from the date of issuance termination of order. The aforesaid constitutional position is evident from perusal of paras 29, 30(5) and 31 of the judgments. Therefore, the view taken by the Tribunal accords with the mandates of the judgment of Hon'ble the Supreme Court in B. Karunakar's case (Supra). The last issue concerning the acquittal of the petitioner in criminal case, has also been decided against the petitioner because on facts, the charges were found to be different, apart from the difference in standard of proof in criminal proceeding and inquiry proceedings. As a sequel to the above discussion, we find that there is no room to admit the petition and accordingly, we dismiss the same. (M.M. KUMAR) Judge (JITENDRA CHAUHAN) 4th March, 2010 Judge Atul