Central Administrative Tribunal - Delhi
Balraj Singh vs Delhi Development Authority Delhi on 12 November, 2021
1 O.A. No.2245 of 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2245
2245 of 2017
Orders reserved on : 09.11.2021
Orders pronounced on ::12.11.2021
.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Balraj Singh
Aged 56 years,
Asstt Section Officer
S/o Late Shri Suraj Bhan Gill
No.C-7/109
7/109 Grd Floor,
DDA Staff Quarter, S.D.A.
(Hauz Khas)
New Delhi-110016
Delhi
M-9818652425
9818652425
... Applicant
(through Advocate Shri G.L. Verma
Verma)
Versus
us
1. Delhi Development Authority,
(Through Commissioner Personnel)
DDA, B Block, Grd Floor,
Vikas Sadan,
New Delhi-110023
Delhi
... Respondent
(through Advocate Ms. Sriparna Chatterjee
Chatterjee)
2 OA No-2245 of 2017
ORDER
Hon'ble Mr. R.N. Singh, Member (J) In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 28.4.2017 (Annexure A-1) vide which the claim of the applicant for grant of benefits of first financial upgradation under Assured Career Progression (ACP) Scheme w.e.f. 9.8.1999 and the benefits of second and third financial upgradation under ACP/Modified Assured Career Progression (MACP) w.e.f. 6.3.2008 and w.e.f. 6.8.2014 respectively, has been rejected.
2. The applicant has prayed for the following reliefs:-
"(a) To set aside the impugned order dated 28.04.2017 of Assistant Director (P) being illegal in view of reasons stated above .
(b) To direct the Respondent to grant 1st ACP from 09.08.1999 and re-structure and re-fix the subsequent ACP/MACPs effective 2nd ACP from 06.3.2008 and 3rd MACP from 06.03.2014 in sequence as per orders and norms being followed with all consequential benefits/arrears.
(c) To pass any order/directive/relief as this Hon'ble Tribunal may consider at its discretion just and proper."
3 OA No-2245 of 2017
3. Subsequent to notice from this Tribunal, counter reply on behalf of the respondent has been filed and the applicant has filed replication.
4. The brief facts leading to the present OA, as derived from the pleadings on record, are that the applicant had joined as Mate in the Work Charge establishment on 6.3.1984. After qualifying the requisite test, the applicant was appointed to the post of Lower Division Clerk on 8.11.1988. The respondent vide Order E.O.No.736 dated 5.6.2015 (Annexure A-2) took a policy decision to count the services rendered as Mate on Work Charge establishment for according the benefits of ACPs/MACPs and order for re- fixation of pay of the affected staffs with consequential benefits. In view of such policy decision, the applicant became entitled for grant of first financial upgradation under the ACP Scheme on 9.8.1999, i.e., after completion 12 years of service. However, the said benefit was not accorded to the applicant in view of minor penalty chargesheet issued on 31.12.1997 belatedly for alleged misconduct pertaining to the year 1988-1989 and vide order dated 10.04.2000, a penalty of 'stoppage of one increment for two years without cumulative effect' was 4 OA No-2245 of 2017 imposed upon the applicant. The applicant was granted the benefit of first financial upgradation under ACP Scheme w.e.f. 1.1.2003, i.e., after completion of two years of penalty was over. As the grant of benefit of first ACP was delayed, the benefits of second ACP and/or third MACP were also got delayed.
5. Shri Verma, learned counsel for the applicant, has argued that the chargesheet dated 31.12.1997 was issued after 9 years of alleged misconduct, i.e., of the year 1988- 1989 and the respondent without any reason delayed the order of penalty for more than three years which has resulted into grant of first financial upgradation under ACP Scheme to the applicant w.e.f. 1.1.2003 instead of 09.08.1999 and though the penalty imposed upon the applicant is minor, i.e., 'stoppage of one increment for two years without cumulative effect', however, the effect of the penalty has led to disproportionate consequences.
6. It is argued on behalf of the applicant that penalty order was issued on 10.4.2000 for stoppage of one increment for two years, i.e., upto 9.4.2002 without cumulative effect and there is no stipulation in the said order which may lead to withholding of the ACP which 5 OA No-2245 of 2017 itself exists as a penalty on its own. He has further argued that delay in issuance of the chargesheet for more than nine years is entirely attributable to the respondent and further delay in conclusion thereof is also entirely attributable to the respondent. In absence of any expressed or implied order of denial or withholding of the ACP/MACP benefits, the chargesheet or the order of penalty under reference cannot be used against the applicant to deprive him the ACP/MACP benefits, beneficial policy decision of the respondent.
7. Shri Verma, learned counsel for the applicant, has further argued that there is no order or rule which allows a minor penalty order arising out of a minor penalty proceedings permitting double punishment. He has further placed reliance on the Department of Personnel and Training's (hereinafter referred to as 'DOP&T') instructions dated 15.12.2004 (Annexure A-9) to contend that a Government servant, on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to 6 OA No-2245 of 2017 imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. He has further argued that in the said Memorandum itself it has been provided that in such cases, the seniority would be fixed according to the position of the officer in the panel on the basis of which he is promoted on expiry of currency of the penalty. It is further added by him that the benefits of first financial upgradation under ACP Scheme had accrued to the applicant on 9.8.1999 on completion of more than the required period of service and the minor penalty of withholding of one increment without cumulative effect was ordered vide order dated 10.4.2000 which expired on 9.4.2002, cannot be made effective retrospectively. He has also argued that 'without cumulative effect' means without any other effect and, therefore, by any stretch of imagination or interpretation, another penalty like withholding of financial upgradation under ACP/MACP and/or promotion cannot be awarded to the applicant. He has further argued that the impugned order dated 28.4.2017 is issued without putting the applicant's representation dated 23.2.2017 before the concerned DPC which alone was vested with the power to take decision, 7 OA No-2245 of 2017 particularly keeping in view the OM dated 15.12.2004 (Annexure A-9). He has also argued that withholding of finaicial upgradation itself is a major penalty and when the same is applied against the applicant in addition to withholding of increment as ordered vide order dated 10.4.2000, the same will tantamount to imposition of double penalty and as such the same would be unsustainable in the eyes of law. He has also argued that if a penalty leads to disproportionate consequences and double jeopardy, the same is liable to stuck down. In this regard, he has placed reliance on the following judgments of the Hon'ble Apex Court:-
1. Bhagat Ram vs. State of Himachal Pradesh, reported in AIR 1983 SC 454;
2. Shankar Dass vs. Union of India, reported in AIR 1985 SC 722; and
3. Nayak Sasrdar Singh vs. Union of India, reported in 1991 3 SCC 213.
8. Shri Verma has further argued that substantial justice is heavily in favour of the applicant and no procedural law can undermine or demolish the substantial justice. In this regard, he has referred to and relied upon the judgments of the Hon'ble Supreme Court in the cases 8 OA No-2245 of 2017 of Ganesh Trading Co. Vs. Mauji Ram, reported in AIR 1978 SCC 484, and State of Haryana vs. Chander Mani, reported in AIR 1996 SC 1622.
9. Shri Verma has further submitted that non-grant of ACP/MACP on the due dates is also in violation of the provisions of Article 20(2) of the Constitution of India, which lays down that no person shall be prosecuted or punished for the same offence more than once. It is further added by him that the penalty imposed without cumulative effect, once has turned and transformed into major penalty with cumulative effect and in fact, second independent penalty itself, i.e., stoppage of financial upgradation and/or promotion, has never been the intention of the disciplinary authority while issuing the penalty order or of the legislators while framing the penal provisions. Finally, he has relied upon the judgement of the coordinate Bench of this Tribunal dated 12.1.2012 in OA 1433/2011, titled Ram Chander vs. Union of India and others (Annexure A-12) to support his contention that withholding of promotion itself being a penalty, if, along with the withholding of increment, promotion is also withheld, it would tantamount to imposition of double penalty and 9 OA No-2245 of 2017 would result in double jeopardy, which is not permissible under the relevant rules/law.
10. Per contra, Ms. Chatterjee, learned counsel for the respondent, has vehemently opposed the OA. She has argued that chargesheet dated 31.12.1997 culminated into imposition of penalty vide order dated 10.4.2000 vide which 'penalty of stoppage of one increment of pay for two years without cumulative effect' was ordered. She has also argued that an employee, who is due for promotion/financial upgradation as on date the chargesheet/departmental proceeding(s) is pending against him, would not be entitled for such promotion/financial upgradation till the culmination of the said proceedings(s) and in case, a penalty in the said departmental proceedings is imposed on the employee, he would be considered for promotion/financial upgradation on the date when such penalty period comes to an end. In this regard, she has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Union of India and others vs. K.V. Jankiraman and others, reported in 1993 SCC (L&S) 387. She has further added that though the applicant became entitled for first financial 10 OA No-2245 of 2017 upgradation under the ACP Scheme w.e.f. 9.8.1999, he could not be granted the said benefits due to pendency of departmental proceedings initiated by way of the charge memo dated 31.12.1997 and the same was finally conferred upon him after the currency of the penalty period, i.e., on 31.12.2002. She has further added that in view of the instructions issued by the DoP&T, if the first ACP gets deferred on account of any reason as mentioned in the scheme, the second financial upgradation/second ACP would also be deferred accordingly and the said principle of the scheme was applicable in the case of the applicant as well. She has also placed reliance upon the aforesaid OM dated 15.12.2004 issued by the DoP&T and another OM dated 21.11.2016. She has also relied upon the Orders/Judgments of this Tribunal dated 6.10.2020 in OA 443/2015, titled Jai Kanwar vs. Chairman, Delhi Transport Corporation and another; dated 20.7.2018 in OA 874/2015, titled Raja Ram vs. The Chairman, Delhi Transport Corporation and others ; dated 11.1.2010 in OA 3672/2009, titled Rakesh Chankya vs. The Director General of Works, CPWD and others.
11 OA No-2245 of 2017
11. We have perused the pleadings on record and we have also considered the submissions made by the learned counsels for the parties.
12. It is not in dispute that the applicant became entitled for grant of benefit of first financial upgradation under ACP Scheme on completion of 12 years service w.e.f. 9.8.1999, the benefit of second financial upgradation under ACP Scheme on completion of 24 years of service w.e.f. 6.3.2008 (i.e. 24 years of service from his initial appointment w.e.f. 6.3.1984) and the benefit of third financial upgradation under MACP benefits w.e.f. 6.3.2014 (i.e. after completion of 30 years of service from his appointment w.e.f. 6.3.1984). The chargesheet dated 31.12.1997 was issued to the applicant for minor penalty for the alleged misconduct pertaining to the year 1988-1989 which culminated into a penalty of 'stoppage of one increment for two years without cumulative effect' vide order dated 10.4.2000 and the respondents have delayed the grant of first financial upgradation under ACP Scheme w.e.f. 1.1.2003 instead of w.e.f. 9.8.1999 and thus, subsequent financial upgradations under Second ACP Scheme and 12 OA No-2245 of 2017 under third MACP Scheme have also been delayed by the respondents.
13. In view of such admitted facts and the arguments advanced by the learned counsels for the parties, the issue which arises in the present matter is as to whether the action of the respondents in delaying the applicant's financial upgradations under First & Second ACPs and third MACP on account of the said minor penalty as well as to give effect to the penalty under reference both are justified or not.
14. On behalf of the applicant as well as the respondents, Office Memorandum dated 15.12.2004 (Annexure A-9) issued by the DoP&T, has been relied upon and the same reads as under:-
"No.22034/5/2004-Estt (D) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) .....
December 15 , 2004
OFFICE MEMORANDUM
Subject:- Promotion of persons
undergoing a penalty -
clarification regarding.
13 OA No-2245 of 2017
The undersigned is directed to refer to DoPT OM No. 21/5/70-Estt (A) dated 15th May, 1971(reiterated vide O.M. No. 22011/2/78-Estt(A) dated 16.2.1979) and to say that in terms of the provisions of these Office Memoranda, a Government servant, on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. It has, however, been separately clarified vide Office Memorandum No. 22011/2/92-Estt (D) dated 30th November, 1995 that in such cases, the seniority would be fixed according to the position of the officer in the panel on the basis of which he is promoted on expiry of the period of currency of the penalty.
2. Doubts have been expressed regarding the pay fixation and date of commencement of the eligibility service in such cases. It is clarified that since the promotion is to take effect only from a date subsequent to the expiry of the currency of the penalty, the officer would be entitled to pay fixation in the promotional grade with effect from the date of actual promotion only. Even if a person junior to him in the panel is promoted earlier, it will have no bearing on the pay to be allowed on promotion to the officer on whom a penalty was imposed, and there shall be no stepping up of his pay.
3. Similarly, as the officer undergoing penalty is not to be promoted during the currency of the penalty, the eligibility service in the promotional grade for further promotion shall commence only from the date of actual promotion and in no case, it may be related, even notionally, to the date of promotion of the junior in the panel."
15. On behalf of the applicant, Shri Verma, learned counsel, has relied upon the Order/Judgment of the coordinate Bench of this Tribunal dated 12.1.2012 in OA 14 OA No-2245 of 2017 1433/2011, titled Ram Chander vs. Union of India and others (Annexure A-12) wherein this Tribunal has relied upon the Order/Judgment dated 28.1.1992 in OA No.1699/1987, titled Prem Singh Verma vs. Union of India. Paragraphs 6 and 7 of Order/Judgment dated 12.1.2012 read as under:-
"6. We have heard the learned counsel for the parties. The first penalty imposed upon the applicant was "withholding of one increment for a period of 2 years" vide order dated 27.9.2007. The two periods of his unauthorized absence treated as dies non were from 24.4.2007 to 22.9.2007 (90 days) and from 30.7.2007 to 6.8.2007 (8 days). Earlier his normal date of increment was from the month of January every year. After the order dated 27.9.2007, his date of increment fell on 1.1.2008 which was withheld. The next two increments were to fall on 1.1.2009 and w.e.f. 1.1.2010 respectively. Along with the increment w.e.f 1.1.2010 the withheld increment as on 1.1.2008 was also to be released. However, in the case of the applicant, since his absence periods from 24.4.2007 to 24.7.2007 (90 days) and from 30.7.2007 to 6.8.2007 (8 days) were treated as dies non, his normal date of increment from 1.1.2008 was shifted permanently to 1.4.2008 and the next date of increment was, therefore, fell only on 1.4.2009. However, on implementation of the recommendations of the VIth CPC, his date of increment was again postponed to 1.7.2009. There was no impediment for the respondents to release the increment to the applicant which fell on 1.7.2009 even though before the aforesaid date, the respondents had issued the penalty of Censure upon the applicant vide order dated 7.5.2008 but its adverse impact remained for six months, i.e., only up to 6.11.2008. Thus, the applicant was entitled to get his last increment on 1.7.2009 before he retired on 31.1.2010. However, since the respondents have mentioned about his first penalty dated 27.9.2007 in his second penalty order dated 7.5.2008 the 15 OA No-2245 of 2017 currency of the penalty has been postponed to 7.5.2010, and it was wrong. Again, for the aforesaid reasons, the Applicant also could not get his withheld increment w.e.f. 1.1.2008 released after two years. In our considered view, the applicant need to suffer beyond the scope of penalty.
7. In view of the above position, we find merit in the contention of the applicants counsel. As the applicant was free from all departmental proceedings with effect from 7.11.2008 as the adverse impact of penalty of censure was of temporary nature, the applicant has to be granted the last increment in his service w.e.f. 1.7.2009, if the same has not already been granted. Again, his withheld increment on 1.1.2008 shall also be released to him when he retired on 31.1.2010. He is also entitled for the MACP benefits from 1.7.2009 onwards till his retirement on 31.1.2010, if he was otherwise eligible for the same. Consequently, the respondents shall reconsider the matter in the light of the aforesaid observations for the grant of the aforesaid benefits including the revision of his pensionary benefits within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs."
16. Para 8 of K.V. Jankiraman (supra), relied upon on behalf of the respondents, reads as under:-
"8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are:-
-(1) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?' The "sealed cover procedure" is adopted when an employee is due for promotion, 16 OA No-2245 of 2017 increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over'. Hence. the relevance and importance of the questions."
17. Under Rule 11 of CCS (CCA) Rules, 1965, "withholding of promotion' and 'withholding of increment of pay' are two different and independent minor penalties.
Rule 16 (1-A) of the CCS (CCA) Rules, 1965 reads as under:-
"16. (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 (24) of Rule 14, before making any order imposing on the Government servant any such penalty."
18. Para 5 of Order/Judgment of this Tribunal in the case of Jai Kanwar (supra) reads as under:-
"5. Per contra, the respondents have opposed the OA. It is brought out that even though the 1st ACP was due to the applicant on 12.08.2002 when the ACP Scheme was adopted by the respondent-DTC, however, in the case of applicant he was placed 17 OA No-2245 of 2017 under suspension w.e.f 05.06.2002 to 28.06.2002 for causing irregularities and misbehaving with the checking staff. A penalty of censure was imposed on 17.04.2003 in this case. There was another chargesheet also issued wherein a punishment of stoppage of next due increment without cumulative effect, was imposed vide orders dated 04.02.2003. Since the punishments had their adverse effect and three consecutive satisfactory ACRs/APARs were needed for ACP, the applicant was granted 1st ACP w.e.f. 01.04.2006. Thus, grant of 1st ACP was deferred by three years."
19. Para 9 of Order/Judgment of this Tribunal in the case of Raja Ram (supra) reads as under:-
"9. So far as applicant‟s acquittal in the criminal case is concerned, it has no bearing on imposition of the punishment in the departmental inquiry. Further, from a bare perusal of the judgment delivered by learned MM, Tis Hazari Court, New Delhi in the criminal case registered under Section 279/304A, dated 20.2.2013, we find that it is not a case of honourable acquittal. The said learned Court acquitted the applicant only on the basis of presumptions. It is also made clear that in criminal case, the burden of proof is on the prosecution and the prosecution has to prove the case beyond reasonable doubt and if the accused succeeds in creating doubts in the mind of the learned Court, he will get the benefit of the same. So far as departmental inquiry is concerned, the position is different as in the departmental inquiry, the inquiry is based on the preponderance of probability. Considering the facts and evidence before the inquiry officer, the inquiry officer has to render his report and the same has to be seen by the disciplinary proceedings whether to accept it or reject it. In this case, report submitted by the inquiry officer was considered and the aforesaid punishment has been awarded to the applicant by the disciplinary authority. The applicant has failed to challenge that punishment. Now after acquittal, which is also not honourable acquittal in the eyes of 18 OA No-2245 of 2017 law, the applicant cannot get benefit of the same and cannot ask for the relief of expulsion/removal of punishment imposed upon by the competent authority in the departmental proceedings."
20. In Rakesh Chankya (supra), this Tribunal had considered the OM dated 14.9.1992, issued by the DoP&T, and the judgment of the Hon'ble Apex Court in the case of K.V. Jankiraman (supra) to hold that if on the date when the DPC meets for considering the person who has been served with a charge-sheet, his name has to be kept in the sealed cover which can be opened only if the person is ultimately totally exonerated.
21. Learned counsel for the respondents has also placed reliance upon the Office Memorandum dated 21.11.2016. The said Office Memorandum is regarding guidelines on treatment of effect of penalties on promotion - role of Departmental Promotion Committee.
22. From the aforesaid, it is evident that the applicant has been eligible for grant of benefit of first financial upgradation in view of the ACP Scheme w.e.f. 8.9.1999. However, the same has been delayed by the respondents only on account of minor penalty proceedings initiated against him vide charge sheet dated 31.12.1997 for 19 OA No-2245 of 2017 misconduct pertaining to the year 1988-89. The aforesaid chargesheet and the order of penalty dated 10.4.2000 are not the subject matter of challenge in the present OA, so we refrain ourselves from commenting upon the same. However, it will not be out of place to note that OM dated 15.12.2004, referred to hereinabove, provides that the Government servant, on whom a penalty of withholding of increment etc. has been imposed, should be considered for promotion by the DPC, which meets after imposition of the said penalty and after due consideration of final facts leading to imposition of penalty, if he will consider the Govt. employee fit for promotion, the promotion may be given effect to after the expiry of the currency of penalty. However, in the present case, it has not been brought on record by the respondents that the said Office Memorandum allows minor penalty order to take retrospective effect and/or to permit the respondents to pass any order which will be in fact inflicting the two different and distinct penalties upon the applicant. If the framers of the rules have provided two different penalties, it is not permissible that an order which can be passed against an employee concerned, including the applicant, can be made to suffer two penalties whereas the order of 20 OA No-2245 of 2017 penalty talks about only one penalty. So far as Office Memorandum dated 21.11.2016 is concerned, this is a guidelines on treatment of effect of penalties on promotion keeping in view the OM dated 14.9.1992 of the DoP&T and that also nowhere provides that by inflicting one minor penalty, in fact, two independent penalties are permitted to be inflicted upon the applicant.
23. From the very para 8 of the Judgment of the Hon'ble Apex Court in the case of K.V. Jankiraman (supra), quoted hereinabove, it is evident that issues raised before their Lordships have been entirely different than those in the OA in hand. It is not the case of the respondents that in view of the aforesaid charge memo, the applicant's claim was kept in sealed cover and was not given effect to and the claim of the applicant for financial upgradation was considered by a DPC subsequently after expiry of the currency of the minor penalty of 'stoppage of one increment for two years without cumulative effect'. It is also not their case that the applicant's upgradation was delayed as the applicant was found not fit for the relevant financial upgradation on account of any other reason. Para 5 of Jai Kanwar's case (supra) and Para 9 of the Raja Ram's case 21 OA No-2245 of 2017 (supra) clearly indicate that facts of these cases were entirely different than those of the case in hand. Similar is the position with regard to the Order/Judgment of this Tribunal in Rakesh Chankya'si case (supra). Moreover, in none of the Orders/Judgments of this Tribunal, referred to and relied upon, on behalf of the respondents, the Orders/Judgments of this Tribunal in Prem Singh Verma's case (supra) and/or in Ram Chander's case (supra), referred to and relied upon by the learned counsel for the applicant, has been brought to the notice of this Tribunal and/or the same has been considered. Moreover, the penalty of 'stoppage of one increment for two years without cumulative effect' which has in fact given rise to not only the stoppage of promotion or upgradation of the applicant under ACP/MACP Schemes but that is also in fact more than withholding of increment of pay for a period exceeding three years or withholding of increment of pay with cumulative effect, provisions of Rule 16 (1-A) of the CCS (CCA) Rules, 1965 have also not been complied with by the respondents. Recently, the coordinate Bench of this Tribunal had an occasion to deal with non-grant of extension of benefit of third financial upgradation under MACP Scheme on completion of 30 years of service to the 22 OA No-2245 of 2017 applicant in OA No.888/2013, titled Shri Dharambir Singh vs. Commissioner of Police and another. The said OA was allowed vide Order/Judgement dated 15.05.2019. Paragraphs 8 and 9 thereof read as under:-
"8. Assuming that it is to be taken into account in the context of MACP, it needs to be seen as to what exactly the purport of the relevant guidelines is. Paragraph 3 of the guidelines reads:-
"3. Officers who have been awarded any minor punishment in preceding five years on charges of corruption, moral turpitude, etc. consequent upon conducting D.E. proceedings for the award of major punishment in which the charges have been found proved, may not be empanelled."
9. From this, it becomes clear that the penalty of censure would become a stumbling block for extension of the benefit of MACP, if only it was imposed as a punishment, as a sequel to issuance of major penalty proceedings and on conclusion of disciplinary inquiry. Admittedly, in the instant case, no major penalty charge memo was issued to the applicant, much less the disciplinary inquiry was conducted. Therefore, by itself, the censure would not come in the way of his entitlement for financial upgradation."
24. In view of the fact that the minor penalty proceeding against the applicant resulted into award of minor penalty of 'stoppage of one increment for two years without cumulative effect, the Order/Judgment of this Tribunal in Shri Dharambir Singh (supra), strengthens the claim of the applicant. Moreover, the facts and issues of the 23 OA No-2245 of 2017 present case are identical to those in Prem Singh Verma (supra) on which the reliance has been placed by the learned counsel for the applicant.
25. In view of the aforesaid facts and circumstances, though the learned counsel for the applicant has referred to and relied upon various Judgments, as noted in paragraphs 7 and 8 above, to contend that if a penalty leads to disproportionate consequences and double jeopardy, the same is liable to stuck down. However, for the reason that disciplinary proceedings and/or the penalty order dated 10.04.2000 are not the subject matter of challenge in the present OA, we are of the considered view that those are not applicable in the facts and circumstances of the present case. However, we find force in the arguments of the learned counsel for the applicant that the constitutional provision, the rules and/or the instruction(s) do not provide giving effect to two independent penalties when particular penalty has been provided.
26. In view of the aforesaid, we are of the considered view that the claim of the applicant is squarely covered by the Order/Judgment of this Tribunal in Prem Singh Verma's 24 OA No-2245 of 2017 case (supra) and the Order/Judgment of this Tribunal in Ram Chander's case (supra) in which Prem Singh Verma's case (supra) has also been considered and relied upon. Accordingly, we are of the considered view that the applicant is entitled to be accorded the benefits of First and Second financial upgradations under the ACP Scheme from the dates on which he became entitled, i.e., 9.8.1999 and 6.3.2008 respectively and for the Third financial upgradation under MACP Scheme w.e.f. 6.3.2014, i.e., the date from the applicant has become entitled for the same.
27. In view of the above facts and circumstances and for the foregoing discussion, the present OA is allowed with the following orders:-
(i) The impugned order dated 28.4.2017 (Annexure A-1) is set aside;
(ii) It is declared that the applicant is entitled to be accorded the benefits of First and Second financial upgradations under the ACP Scheme from the dates on which he became entitled, i.e., 9.8.1999 and 6.3.2008 respectively and for the Third financial upgradation under MACP Scheme w.e.f. 6.3.2014, i.e., the date from the applicant has become entitled for the same.
25 OA No-2245 of 2017
(iii) The respondents are directed to re-fix the pay of the applicant keeping in view the aforesaid. The respondents are further directed to re-fix the pension and also to recalculate the pensionary benefits of the applicant keeping in view the revision of the pay of the applicant and to pay the arrears of pay and pension.
(iv) The respondents are further directed to complete the aforesaid exercise within eight weeks of receipt of a copy of this Order.
28. In the facts and circumstances, the present OA is allowed in the aforesaid terms. There shall be no order as to costs.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/