Punjab-Haryana High Court
T.L.Singla vs State Of Punjab & Others on 4 September, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.1328 of 1997 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.1328 of 1997
Date of decision:14.09.2012
T.L.Singla .....Petitioner
Versus
State of Punjab & others .....Respondents
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Shashikant Gupta, Advocate, for
Mr.L.M.Gulati, Advocate, for the petitioner,
Mr.Vijay Kumar Chaudhary, AAG, Punjab.
*****
G.S.SANDHAWALIA J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of writ in the nature of certiorari for quashing the order dated 07.05.1996 whereby the appeal of the petitioner has been rejected against the order dated 28.01.1980 by which two grade increments of the petitioner were stopped with cumulative effect on the ground that no regular enquiry was made and further for a writ of mandamus directing the respondents to allow the petitioner for consequential benefits as if the said punishment order was not there.
2. The pleaded case of the petitioner is that he was appointed as Sub Divisional Officer in the Department of Irrigation with effect from 17.02.1965 and and was promoted as Executive Engineer with effect from 14.08.1980. The petitioner was, while working as Sub Divisional Officer, Aliwal UBDC, Aliwal, issued show cause notice under Rule 10 of the Punjab Civil Services (Punishment & Appeal) Rules, 1970 (for brevity, the 'Rules') on 07.11.1978 by Chief Technical Examiner and Vigilance Officer, Irrigation Department, Punjab Memo No.837/VC-309 regarding the earth CWP No.1328 of 1997 2 work executed from RD 75 to 80/LMBU on left side of UBDC. The petitioner, in his reply to the show cause notice, submitted that wrong method of calculation of earth work was done and that the checking of the work in question was belated and it was done after the transfer of the petitioner and the full monsoon season stood passed on it and a good amount of the earth work was washed away due to rains. Without holding a regular enquiry, as provided under the Rules, the order dated 28.01.1980 had been imposed upon the petitioner wherein two grade increments with cumulative effect had been stopped and recovery was to be made from his pay separately for the excess payment of `12,904/- as costs of `3,86,750/- c.f.t. of earth work. The petitioner, aggrieved against the said order, filed statutory appeals/review dated 05.04.1980 and a further representation dated 01.06.1981 taking up the said grounds and further that no opportunity of personal hearing was provided. Respondent No.1, vide order dated 19.11.1982, further ordered recovery of `5,589/- as 50% of total loss of `11,178/- and eventually, his review petition was dismissed vide the impugned order dated 07.05.1996. The challenge was primarily made on the ground that the Hon'ble Apex Court in Kulwant Singh Gill Vs. State of Punjab 1991 (1) RSJ 413 had held that punishment of with-holding of increments with cumulative effect was a major punishment. The order dated 07.05.1996, rejecting the appeal/review was passed on the ground that the major penalty was to be considered with effect from 13.09.1990, the date of passing of the judgment in Kulwant Singh Gill's case (supra). On the said basis, the present writ petition has been filed.
3. In the written statement filed by the State, it was pleaded that show cause notice was issued and the petitioner submitted reply which was CWP No.1328 of 1997 3 duly considered and 10% allowance in favour of the petitioner on account of late inspection of the work in question was granted. The stoppage of two grade increments with cumulative effect was passed on the ground that a similar offence had also been committed earlier by the petitioner on 10.10.1978. It was pleaded that holding of regular enquiry as provided under the Rules was only for imposing major penalty and so far the minor punishment, the punishing authority can itself hold an enquiry. The punishment was covered under Rule 5 which included with-holding of increment of pay. The prior permission of the Public Service Commission was not necessary and post-facto sanction was taken on 27.02.1982. Thereafter, recovery order was passed and the petitioner was asked to make good a sum of `5589/-. The representation of the petitioner was considered and rejected vide order dated 30.09.1991. The decision of the Hon'ble Apex court in Kulwant Singh Gill's case (supra) was sought to be distinguished on the ground that stoppage of increments with cumulative effect was considered as a major punishment w.e.f. 13.09.1990 and the cases which stood decided from 13.09.1990 to 18.03.1991 need not be reopened in view of the instructions dated 07.05.1996. Accordingly, the impugned order was justified on the ground that the decision of the Hon'ble Apex Court had been passed subsequently.
4. Counsel for the petitioner has contended that impugned orders dated 28.01.1980 and 07.05.1996 were arbitrary and illegal and the judgment of the Hon'ble Apex Court could not be applied prospectively.
5. Counsel for the State, on the other hand, defended the orders on the ground that the instructions dated 19.03.1991 had been issued whereby the benefit was to be given thereafter. After hearing counsel for the parties, CWP No.1328 of 1997 4 this Court finds that the case is squarely covered by the judgment of Kulwant Singh Gill's case (supra) whereby the Hon'ble Apex Court, after examining the provisions of the rules, over-ruled the judgment of the Division Bench in Sarwan Singh Vs. State of Punjab & others ILR 1985 (2) P&H 193 and came to the conclusion that stoppage of increments with cumulative effect was not a major punishment. The said view has been followed by this Court in Purshottam Singh Vs. Punjab State 1991 Service Cases Today 713 wherein also, the order dated 03.10.1972, stopping two annual increments with cumulative effect was set aside in a regular second appeal. The relevant portion of the observations of the Hon'ble Apex Court in Kulwant Singh Gill's case (supra) reads as under:
"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 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 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 v. State of Punjab & Ors., I.L.R. 1985 2 P & H. 193, P.C. Jain, A.C.J. 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 CWP No.1328 of 1997 5 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 withhold 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 with expressly stating so. This preposterous consequences cannot be permitted to be permeated. Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and 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."CWP No.1328 of 1997 6
6. Subsequently, vide notification dated 05.01.1993, an amendment had been made in the Rules whereby with-holding of increments with cumulative effect had been categorized as major punishment. The petitioner could not be denied the benefit of the effect of judgment on the ground that the order has been passed prior to the delivery of the judgment. The Hon'ble Apex Court in M.A.Murthy Vs. State of Karnataka & others (2003) 7 SCC 517 held that the law declared by the Court would be the law from the inception. It was held as under in para No.8 of the judgment:
"8. Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr. In Managing Director, ECIL, Hyderabad and Ors., v. B. Karunakar and Ors., the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. See Ashok Kumar Gupta v. State of U.P. , Baburam v. C.C. Jacob . It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision. CWP No.1328 of 1997 7 It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma's casa No. II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set, aside."
7. Subsequently, in P.V. George & others Vs. State of Kerala & others 2007 (2) RSJ 173, it was held that the law declared by a Court shall be retrospective if not stated to be so specifically. Relevant portion of the judgment reads as under:
"24. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operations or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf."
Accordingly, the instructions of the State Government granting the benefit of the judgment of the Hon'ble Apex Court after the issuance of the instructions would not be sustainable. Simply because the punishment order CWP No.1328 of 1997 8 was passed prior to the judgment and he was still representing against the said punishment order and subsequently the law was laid down by the Hon'ble Apex court that the stoppage of 2 increments with cumulative effect was major penalty, he could not be denied the benefit of the said judgment.
8. Another aspect which has to be taken into consideration is that the Government had not taken any sanction from the Public Service Commission and has only taken ex-post-facto sanction. The Public Service Commission, vide letter dated 27.07.1997, noticed that while giving show cause notice for recovery of 50% of `11778/-, sanction had not been taken and that in future, such wrong should not be done. Accordingly, keeping in view the above, the writ petition is allowed. Orders dated 28.01.1980 and the consequential order for recovery of `5589/- dated 19.11.1982 and 07.05.1996 without resorting to any departmental enquiry of the petitioner are set aside. In normal circumstances, the State would have been given an opportunity to hold a regular enquiry and proceed ahead. But in the present case, since the petitioner has already retired from service and the incident is of 1980, no useful purpose would be served in permitting the respondents to again start departmental proceedings. Accordingly, the State is directed to refund the sum of `5589/- to the petitioner. The petitioner shall also be entitled for all consequential benefits with interest therein as if the punishment had not been imposed. Needful be done within a period of 3 months from receipt of a certified copy of this order.
14.09.2012 (G.S.SANDHAWALIA)
sailesh JUDGE
Refer to the Reporter.