Punjab-Haryana High Court
Jai Parkash vs The State Of Haryana on 18 March, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
RSA No.2119 of 1988 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2119 of 1988 (O&M)
Date of decision: 18.03.2013
Jai Parkash
......Appellant
Versus
The State of Haryana
.......Respondent
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Rajiv Godara, Advocate,
for the appellant.
Mr. Ajay Gupta, Addl. A.G., Haryana,
for the respondent.
*****
A.N. Jindal, J.
This is plaintiff-appellant's (hereinafter referred as 'the plaintiff') regular second appeal against the judgment of reversal.
Factual background of the case is that the plaintiff was working as a driver in Haryana Roadways, Ambala Depot. On 10.11.1979, he refused to take the bus No.5915 from Ambala City to Baijnath, as according to him the brakes of the said bus were not in satisfactory condition and it was unfit to be taken to the hills. On the aforesaid allegations, the plaintiff was put under suspension and was served with a charge sheet No.6896/ECD dated RSA No.2119 of 1988 (O&M) 2 26.12.1979 (Ex.PW1/A). On receipt of the reply, vide order dated 18.05.1981, a penalty of stoppage of two annual increments with cumulative effect, was imposed upon him. The appeal preferred against the said order was also dismissed. He filed a suit challenging the aforesaid order on various grounds, in as much as the enquiry conducted against him was not valid, as the statements of the witnesses were recorded at his back and he was not afforded any opportunity to cross-examine them. He further alleged that the order dated 18.05.1981 imposing the penalty was illegal and non-speaking.
In its written statement, the State denied all the allegations and submitted that the reply, submitted by the plaintiff to the charge sheet, was considered and was found to be unsatisfactory, therefore, without holding further enquiry, the order dated 18.05.1981 was passed against the plaintiff. It was further submitted that since the penalty, imposed, was minor in nature, therefore, no further enquiry was required.
From the pleadings of the parties, following issues were framed:-
1. Whether the order dated 18.05.1981 is null and void as alleged? OPP 1-A. Whether the order dated 11.09.1984 passed by the Transport Commissioner is null and void as alleged? OPP
2. Relief.
The trial Court decided in favour of the plaintiff, whereas the said judgment was reversed in appeal.
The sole argument raised by learned counsel for the plaintiff is that though, the penalty with regard to stoppage of two annual increments with cumulative effect, was minor penalty prior to the year 1992, yet it was RSA No.2119 of 1988 (O&M) 3 held to be a major penalty entailing a regular enquiry and without regular enquiry, no such major penalty could be imposed upon him.
The counsel has contended that when the charge-sheet for major penalty has been issued, then the delinquent cannot be imposed even minor penalty without completing the enquiry. In this regard, reliance has been placed on the judgment delivered by this Court in case Dr. K.G. Tiwari Vs. State of Haryana, 2002 (3) RSJ 290, wherein the Full Bench of this Court has observed as under:-
"We may also examine the contentions put forward by the learned counsel for the petitioner from another angle. In a case where a charge sheet is issued under Rule 7 for the imposition of a major penalty, if the disciplinary authority, after receiving the reply to the charge sheet, finds that there is no material against the charge sheeted employee, and therefore, after holding of a regular enquiry, it will not be in a position to punish the charge sheeted employee, but still, for its own reasons wants to impose some punishment on him, then the disciplinary authority will choose to adopt the methodology of dropping the procedure contemplated under Rule 7, and simply state that the explanation of the charge sheeted employee has been considered, and impose a minor punishment. This is not the object of having two different sets of procedures in the form of Rule 7 and Rule 8. The object of prescribing these rules for holding disciplinary proceedings is to protect the charge sheeted employee from arbitrary and capricious exercise of power by disciplinary authority and from unjust and illegal punishment. These Rules are intended to safeguard the rights of such charge sheeted employee and to comply with the principles of natural justice.
Ultimately, in para No.28 of the aforesaid judgment, the Full Bench observed as under:-
"28. We hold that once the charge-sheet is issued under Rule 7 of the Rules, 1987, for the imposition of a major penalty, which envisages holding of a regular departmental enquiry, the disciplinary authority cannot by merely examining the reply to the chrge-sheet, inflict even a minor punishment without holding a complete departmental enquiry."
The crux of the aforesaid judgment is that once a charge sheet has been issued and enquiry has been initiated, then the department cannot RSA No.2119 of 1988 (O&M) 4 convert it into Rule 8 and award minor penalty without completing regular enquiry, which had already been initiated against him. The said judgment was followed by this Court in case Gurparkash Singh Vs. State of Punjab and another, 2009 (4) RSJ 560, wherein it was observed as under:-
"6. Having heard the learned counsel for the parties, this Court is of the view that the controversy raised in the instant petition is fully covered by the ratio of the judgment rendered by a Full Bench of this Court in the case of Dr. K.G. Tiwari Vs. State of Haryana and others, 2002 (4) SLR 329, wherein it has been held that once a charge sheet has been issued then a regular departmental enquiry is required to be held even for inflicting a minor penalty. The view taken by a learned Single Judge of this Court has been approved by the Full Bench in Dr. K.G. Tiwari's case (supra). The rationale of the Full Bench in Dr. K.G. Tiwari's case (supra) appears to be that the State Government cannot take shelter behind the provision providing for minor penalty by avoiding to hold departmental enquiry for the fear of lack of evidence. Therefore, the possibility of not proving the charge cannot result into infliction of minor penalty......"
The contention raised by the counsel is that though, the penalty of stoppage of increments with cumulative effect was a minor penalty prior to 1992, yet it was held that it is a major penalty entailing regular enquiry. In this regard, reliance has been placed on the judgment delivered in case Yog Raj Mittal, since deceased through his legal representatives Vs. State of Punjab and others, 2008 (3) RSJ 9, in which this Court, while following the judgment of the Hon'ble Apex Court in case Kulwant Singh Gill Vs. State of Punjab, 1991 (2) SCT 30 (SC), has observed as under:-
"13. Mr. Yatinder Sharma, Deputy Advocate General, Punjab, was fair enough to concede that stoppage of increments with cumulative effect is a major penalty and cannot be imposed without departmental inquiry. Otherwise also, the Apex Court in Kulwant Singh Gill Vs. State of Punjab, 1991 (2) SCT 30 (SC) has held that stoppage of two increments with cumulative effect falls within the meaning of 5(v) and regular inquiry is a must for imposing penalty. Without inquiry, no punishment of stoppage of increments with cumulative effect can be ordered.RSA No.2119 of 1988 (O&M) 5
In Kulwant Singh's case (supra), the Hon'ble Apex Court interpreted the gravity of the punishment to be awarded to an employee and it was observed therein that when the penalty, which reduces the pay scale of an employee, that would be treated as major penalty and cannot be imparted without following the procedure, as laid down for imposing major penalty.
The penalty of stoppage of increments with cumulative effect was held to be major penalty in the said judgment. In Kulwant Singh's case (supra), the Hon'ble Supreme Court has further observed as under:-
"5. The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance. Conducting an enquiry, de hors the rules is no enquiry in the eye of laws. It cannot be countenanced that the pretense of an enquiry without reasonable opportunity of abducting evidence both by the department as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meanings of Rules 8 and 9 of the Rules. Those rules admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reasonable opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to cross- examine the witnesses produced by the department and to examine witnesses if intended on his behalf and to place his version; consideration thereof by the enquiry officer, if the disciplinary authority himself is not the enquiry officer. A report of the enquiry in that behalf is to be placed before the disciplinary authority who then is to consider it in the manner prescribed and to pass an appropriate order as per the procedure in vogue under the Rules. The gamut of this procedure was not gone through. Therefore, the issuance of the notice and consideration of the explanation is not a procedure in accordance with Rules 8 and 9. Obviously, the disciplinary authority felt that the enquiry into minor penalty is not necessary and adhering to the principles of natural justice the show cause notice and on receipt of the reply from the delinquent officer passed the impugned order imposing penalty thinking it to be a minor penalty. If it is considered, as stated earlier, that it would be only a minor penalty, the procedure followed certainly meets the test of the principles of natural justice and it would be a RSA No.2119 of 1988 (O&M) 6 sufficient compliance with the procedure. In view of the finding that the impugned order is a major penalty certainly then a regular enquiry has got to be conducted and so the impugned order is clearly illegal. The trial Court rightly granted the decree. The judgment and the decree of the High Court is vitiated by manifest illegality. At this distance of time it is not expedient to direct an enquiry under Rules 8 and 9 of the Rules. The appeal is accordingly allowed and the judgment and decree of the High Court is set aside and that of the trial Court is restored but in the circumstances without costs."
The judgment of Kulwant Singh's case (supra) has been followed by this Court in case Secretary to Government, Punjab, Transport Department, Chandigarh & others Vs. Amar Nath & another, 2008 (4) RSJ 284, wherein it was observed as under under:-
"It is not in dispute that even though punishment imposed is a major penalty, procedure contemplated under Rule 8 of the Rules, has not been followed at all. No charge-sheet was ever served upon the respondent-plaintiff. Statement of imputations of misconduct or misbehaviour or the list of documents and list of witnesses was never served upon the respondent- plaintiff. The respondent-plaintiff was never provided any opportunity to file the written statement. No enquiry as contemplated by the rules was ever ordered or initiated not to say of conduct against the respondent-plaintiff. The impugned orders imposing major penalty are, thus, totally illegal, invalid and without any authority of law. Both the learned Courts below have rightly set aside the punishment imposed upon the respondent-plaintiff. This case is squarely covered by a judgment of the Hon'ble Supreme Court in the case of Kulwant Singh Gill Vs. The State of Punjab, 1991 (1) RSJ
413."
Similar view was taken by this Court in case Smt. Tripta Kumari Vs. State of Haryana and another, 2012 (1) SCT 455, wherein it was observed as under:-
"8. The short question that would arise for consideration is whether the procedure adopted by the respondents to impose this penalty without holding an enquiry is legal and property. The answer to this question would depend upon the fact whether the penalty imposed is major or minor penalty. If the penalty of RSA No.2119 of 1988 (O&M) 7 stoppage of one increment with cumulative effect is major penalty, then respondents were under legal obligation to hold the enquiry before imposing this punishment. The issue, in my view, is no more res integra. The Hon'ble Supreme Court in the case of Kulwant Singh Gill v. State of Punjab, 1991 (2) SCT 30 (SC) 9, has held that stoppage of two increments with cumulative effect falls within the meaning of 5 (v) of the Punishment and Appeals Rules and would amount to major penalty and, thus, regular enquiry would be a must to impose this penalty. Without enquiry, no punishment of stoppage of increment with cumulative effect, as such, could be ordered.
Rules 8 and 9 of the Rules clearly envisages the procedure to conduct an enquiry into the misconduct before ordering stoppage of increment with cumulative effect."
Further, this Court in case T.L. Singla Vs. State of Punjab and others, 2012 (4) SCT 709, discussed the judgments delivered in Kulwant Singh's case (supra), M.A. Murthy Vs. State of Karnataka, 2003 (4) SCT 251 and P.V. George Vs. State of Kerala, 2007 (2) RSJ 173 and held that simply because the punishment order was passed prior to the judgment of Kulwant Singh's case (supra) and he was still representing against the said order and and subsequently, the law was laid down by the Hon'ble Apex Court that the stoppage of two increments with cumulative effect was major penalty, the appellant could not be denied the benefit of the said judgment. Consequently, it was observed that the penalty of stoppage of increments with cumulative effect was major penalty and entailed a regular enquiry. Similar view was taken in case Kartar Singh Vs. State of Haryana and another, 2012 (1) PLR 20.
Now coming to the question of limitation, the stoppage of increments would be treated as a recurring cause of action and limitation RSA No.2119 of 1988 (O&M) 8 would not stop till the plaintiff-employee is in service. Even otherwise, if any such void order was passed by the authorities in order to curtail the salary or wrong fixation of the salary, then such a void order would not extinguish the right of the plaintiff to raise the claim in a Court of law. Similar view was taken in Yog Raj Mittal case (supra), Makhan Singh Vs. State of Punjab and others, 2009 (3) SCT 123 and Malkiat Singh Vs. State of Haryana, 2008 (1) RSJ 141. In Malkiat Singh's case (supra), this Court has observed as under:-
"8. Any order which is passed contrary to the mandatory provision of the Rules and the principles of natural justice, is null and void. It is not necessary for a party to get it set aside. He can claim the relief ignoring the void order. In the present case, the claim of the respondent-plaintiff in substance is for the release of four increments. A servant is entitled to annual increments as a matter of course unless the increment is stopped. If the order of imposing stoppage of increment is passed in contravention of the mandatory provisions of the rules and the principles of natural justice, such an order can be ignored by the official and he can claim arrears of pay and allowances which became due and were not given to him on account of the void order. For claiming arrears of pay, the limitation for filing a suit is three years. Right to claim wages arises at the end of every month because wages are payable monthly. In continues to arise to a servant upto the age of superannuation. A right to salary cannot be interrupted by a void order. There has to be a valid order in order to deprive the Government servant of his right to claim salary. If such an order is passed contrary to the provisions of rules it could be an order which could be termed as illegal and invalid. I am also to observe that employee can ignore such an order and he need not secure declaration if such an order is void. He can enforce his claim of salary which became due to him preceding the date of the institution of suit at any time. Applying this principle, the claim of the respondent-plaintiff for arrears of pay and allowances preceding the date of institution of the suit was plainly within limitation."
In the light of the aforesaid authorities, this Court is of the opinion that the first Appellate Court has committed an error while holding that the enquiry was not required to be completed while awarding the penalty of stoppage of two annual increments with cumulative effect. RSA No.2119 of 1988 (O&M) 9
Resultantly, this appeal is accepted; the impugned judgment is set aside and the judgment passed by the trial Court is restored.
(A.N.Jindal) 18.03.2013 Judge ajp