Writ Petition No.56 of 1993

31st August, 2005

Petitioner Counsel: Mr. ROHIT DEO
Respondent Counsel: Mr. S. S. GHATE

Cases Cited:
Kulwant Singh Gill Vs. State of Punjab, 1990(II) CLR SC 686 [Para 3,7]

JUDGMENT

D. D. SINHA, J.:- Heard Mr. Rohit Deo, learned counsel for the petitioner and Mr. S. S. Ghate, learned counsel for Respondent Nos.1 and 2.

2. Learned counsel for the petitioner has stated that the respondent No.2 issued charge-sheet dated 30-8-1990 and in para 5 of the charge-sheet the Disciplinary Authority has observed that it has been decided to institute Disciplinary action against the petitioner under Regulation 8(1) of Bank of Maharashtra Officer Employees' (Discipline & Appeal) Regulations, 1976 for the lapses on the part of the petitioner mentioned in para 1 to 4 of the charge-sheet. Learned counsel contended that Regulation 8(1) deals with minor penalty. It is contended that the Disciplinary Authority imposed the following penalty for breach of conduct regulations :

(1) No.13(1).....proved fully.

Penalty : Withholding of one increment with cumulative effect.

(2) No.13(2).....proved fully.

Penalty : Withholding of one increment with cumulative effect.

(3) No.3(1).....proved partly.

Penalty : CENSURE

All the penalties are awarded concurrently.

3. Learned counsel for the petitioner further contended that in view of the law laid down by the Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab - 1990(II) CLR SC 686, the punishment of withholding of increments with cumulative effect is a major penalty and could not be imposed without conducting the departmental enquiry as well as the procedure required to be followed by the department before imposing major penalty. It is further contended that in the instant case there was no departmental enquiry conducted by the respondents before imposing major penalty, and therefore, in view of the law laid down by the Apex Court in the above referred judgment, the order of the Disciplinary Authority dated 26-2-1991 and the Appellate Authority dated 10-8-1991 as well as order of the Reviewing Authority dated 3-3-1992 cannot be sustained-in-law.

4. Learned counsel for the respondents-Bank has contended that as per sub-clause (b) of Regulation No.4 of Regulations, 1976 demonstrates that withholding of increments of pay with or without cumulative effect is included in the category of minor penalties, and therefore, summary procedure is required to be followed by the Disciplinary Authority, which in fact has been followed in the present case. It is contended that the charge-sheet was served on the petitioner and the explanation of the petitioner was called within 15 days from the date of service of the charge-sheet. The petitioner has submitted his reply to the charge-sheet which was considered by the Disciplinary Authority and since the explanation/reply submitted by the petitioner was found to be unsatisfactory, the Disciplinary Authority held that the misconduct of absence from duty mentioned in Regulation No.13(1) of the Bank of Maharashtra Officer Employees' (Conduct) Regulations, 1976 is proved, and therefore, penalty of withholding of one increment with cumulative effect has been imposed. Similarly, misconduct of absence from duty contemplated in Regulation No.13(2) of the conduct Regulations, 1976 is also held to be proved and therefore, the punishment for withholding of one increment, with cumulative effect was imposed by the Disciplinary Authority and thus supported the order of punishment awarded by the Disciplinary Authority.

5. Learned counsel for the respondent further contended that the Appellate Authority modified the punishment awarded by the Disciplinary Authority so far as the punishment awarded in respect of proved misconduct in view of Regulation 13(1) of Conduct Regulation, 1976 is concerned and though upheld the punishment of withholding of one increment but without cumulative effect. So far as the punishment awarded in respect of the proved misconduct vis-a-vis Regulation 13(2) is concerned, the Appellate Authority has upheld the order of punishment withholding of one increment with cumulative effect imposed by the Disciplinary Authority. Similarly, the order of Appellate Authority is confirmed by the Reviewing Authority.

6. Learned Counsel for the Respondent further contended that the punishment of withholding increment with cumulative effect falls within the minor penalties, and therefore, the procedure adopted by the Disciplinary Authority and punishment imposed, is just and proper, and therefore, consequently the order of Appellate Authority and Reviewing Authority are sustainable-in-law.

7. We have considered the contentions canvassed by the learned counsel for the parties as well as perused the judgment of the Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab (cited supra) and the provisions of Bank of Maharashtra Officer Employees' (Discipline and Appeal) Regulations, 1976. It is no doubt true that as per sub-clause (b) of Regulation 4, withholding of increments of pay with or without cumulative effect is punishment included in the category of minor penalties and reduction to a lower grade or post, or to a lower stage in a time scale is the punishment stipulated in clause (e) of Regulation 4 and is included in the category of major penalties. The Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab (cited supra) was considering the similar provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970, wherein Clause (iv) of Rule 5 provided the punishment of withholding of increment of pay and this punishment was included in the category of minor penalty. Whereas, 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 will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay was the punishment provided in clause (v) of Rule 5 and was included in the category of the major penalties. The contention was advanced before the Apex Court in the said case by the learned counsel for the State that withholding of two increments with cumulative effect is only a minor penalty and it does not amount to reduction to a lower stage in the time scale. However, the Apex Court rejected this contention and in para 3 of its judgment observed thus :

"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 reduction and whether on 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(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(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 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 imperpetuity 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 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 Sarwan Singh Vs. State of 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 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 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 without expressly stating so. This preposterous consequences cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinery authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry 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."

8. The observations made by the Apex Court in the above referred judgment clearly demonstrate that the punishment of withholding of increment with cumulative effect necessarily will have a effect of employee being reduced in his time scale during the rest of his tenure of his service. So far as the Bank of Maharahstra Officer Employees' (Discipline and Appeal) Regulations, 1976 are concerned, as we have already observed hereinabove that though the punishment of withholding of increments of pay with or without cumulative effect is a punishment included in minor penalty, however, in view of the above law laid down by the Apex Court in the above referred judgment, by necessary implication, it will have to be held that the said punishment virtually amounts to reduction to a lower stage in a time scale provided in clause (e) of Regulation 4 and is a major penalty and if that is so, then such major punishment cannot be awarded without conducting regular enquiry and without following procedure applicable in this regard, by the Disciplinary Authority.

9. In the instant case, it is not in dispute that the punishment of withholding of increment with cumulative effect is imposed by the Disciplinary Authority without conducting any enquiry or without following any procedure applicable in this regard under the presumption that the penalty is of a minor nature, and therefore, for the reasons stated hereinabove and in view of the law laid down by the Apex Court, the order of the Disciplinary Authority dated 26-2-1991 is not tenable in law and is therefore quashed and set aside. For the similar reason, the order dated 10-8-91 passed by the appellate authority as well as dated 3-3-92 also cannot be sustainable-in-law and are also hereby quashed and set aside. The respondents are entitled to proceed against the petitioner, if they so desire, after following the procedure contemplated for awarding major penalties.

10. Rule is made absolute in the above terms with no order as to costs.

Order accordingly.