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B.R. Acharya Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpl. C.A. No. 569 of 1984
Judge
Reported in(1985)1GLR473; (1986)ILLJ8Guj
ActsConstitution of India - Article 226
AppellantB.R. Acharya
RespondentState of Gujarat and anr.
Cases ReferredRam Dass v. State of Punjab
Excerpt:
.....- disciplinary authority empowered to award such punishments - necessary procedure for imposing minor penalty followed - passing of impugned penalty within power allotted to authority. - - part iii of the rules deals with the topic of 'discipline'.rule 6 found in that part deals with nature of penalties and lays down that :without prejudice to the provision of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any number of the state, subordinate or inferior services, namely :(1) censure. in these circumstances, it cannot be said that the disciplinary authority has no power to withhold increments of the delinquent like the petitioner with future effect. the petitioner would have been on a better footing if ceiling..........brought in its wake departmental proceedings against the petitioner. the proceedings for imposing minor penalty as contemplated by rules 6(1), (2) and (3) of the gujarat civil services (discipline and appeal) rules, 1971 ('the rules' for short) were initiated against the petitioner. it is not in dispute that proper procedure for imposing minor penalty was followed in the case of the petitioner. ultimately, the then director of social defence who was the administrative head of the petitioner imposed penalty order against the petitioner on 29th april, 1977. the said penalty order is at annexure 'f' to the petition. by that order, the petitioner was found to have misconducted in not complying with the transfer order directing him to shift his headquarter from bhavnagar to savarkundla and.....
Judgment:

1. In this petition under Art. 226 of the Constitution, the petitioner who is partly-in-person; has challenged the order dated 5th August, 1980 passed by the appellate authority reducing the penalty in departmental proceedings initiated against the petitioner to the extent that the petitioner's two increments have been ordered to be withheld with future effect. In order to appreciate grievance of the petitioner, it is necessary to note a few relevant facts. The petitioner is at present working as a probation officer under the Probation of Offenders Act, 1958 under the administrative supervision of respondent No. 2. He had joined the Department of Social Welfare (subsequently known as Social Defence Department) of the respondent-State in January 1983 and thereafter he has continued to work in the said department as a probation officer. During his tenure of service, he worked at different places in the State. The service history of the petitioner has a chequered career. It is not necessary to refer to the same as that would only tend to confuse the issue. Only bare relevant facts, therefore, are being stated at this stage. In 1975 the petitioner was transferred to Bhavnagar as a probation officer with hearquarter at Bhavnagar. He had, under his charge, various talukas where he had to act as a probation officer and for that purpose, he had to attend criminal courts situated in those talukas. Savarkundla taluka was one of them. By an order dated 14th September, 1976, the headquarter of the petitioner was changed from Bhavnagar to Savarkundla and he was assigned the work pertaining to Savarkundla criminal court. The said order is at annexure 'B' to the petition at page 20. Pursuant to the said order, the petitioner was required to shift his headquarter from Bhavnagar to Savarkundla. The petitioner had a grievance about the same. Hence, he made a representation to the higher authorities against the said order shifting his headquarter which, in the submission of the petitioner, amounted to a transfer order. It appears that nothing came out of the said representation. In the meantime, the petitioner did not comply with the order of the then Director of Social Defence directing him to shift to Savarkundla where he had to work pursuant to the order dated 14th September, 1976. He continued to remain at Bhavnagar and to operate from that headquarter. He did attend the criminal court at Savarkundla but without shifting his headquarter to Savarkundla. He even did not accept shifting allowance and the expenses permissible to him for such shifting. That circumstance brought in its wake departmental proceedings against the petitioner. The proceedings for imposing minor penalty as contemplated by rules 6(1), (2) and (3) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ('the Rules' for short) were initiated against the petitioner. It is not in dispute that proper procedure for imposing minor penalty was followed in the case of the petitioner. Ultimately, the then Director of Social Defence who was the administrative head of the petitioner imposed penalty order against the petitioner on 29th April, 1977. The said penalty order is at annexure 'F' to the petition. By that order, the petitioner was found to have misconducted in not complying with the transfer order directing him to shift his headquarter from Bhavnagar to Savarkundla and consequently, he was imposed a minor penalty by way of withholding promotion for five years. The petitioner challenged the said penalty order by preferring an appeal before the appellate authority. The said appeal came to be decided by the State of Gujarat, through Joint Secretary, Social Defence Department on 5th August, 1989. The finding of the disciplinary authority that the petitioner has committed a minor misconduct by not complying with the transfer order was accepted, but the punishment was found to be too harsh. Consequently, the penalty order passed by the disciplinary authority on 29th April, 1977 was substituted by an order withholding two increments of the petitioner with future effect. The said appellate order dated 5th August, 1980 is annexed at annexure 'H' to the petition. The petitioner thereafter filed a review petition before the appellate authority to reconsider his appeal. The said review petition was kept pending by the appellate authority for quite sometime. That brought the petitioner to this court by way of Special Civil Application No. 906 of 1983 with a request to this court to issue proper directions to the respondents to hear the review application G. T. Nanavati, J., issued necessary direction to that effect to the appellate authority. Under these circumstances, the appellate authority decided the review application of the petitioner by his order dated 1st August, 1983 which is at annexure 'P' to the petition at page 74. The appellate authority found that there was no case for review of the earlier order dated 5th August, 1980 and confirmed the same. It is thereafter that the petitioner has come to this court by way of the present petition. This petition came up for admission hearing before G. T. Nanavati, J. on 6th February, 1984. At the time of hearing as to admission, the following order was passed by G. T. Nanavati, J. :-

'The petitioner had earlier filed special civil application No. 906 of 1983 wherein the question raised in this petition were also raised, except in respect of the grievance of the petitioner regarding withholding of two increments by an order dated 5th June, 1980. The previous petition was rejected. The petitioner, therefore, cannot raise those questions again in this petition and to that extent, this petition cannot be entertained. Rule in this petition is, therefore, issued only with respect to the question of legality of the order dated 5th August, 1980 whereby petitioner's two increments have been withheld.'

In view of the aforesaid order of this court, it is obvious that number of contentions raised in this petition do not survive as the petition qua these contentions has been rejected at the admission stage. The petition has been admitted to final hearing on the limited question about legality of the order dated 5th August, 1980 passed by the appellate authority in the petitioner's appeal whereunder the petitioner's two increments were ordered to be withheld.

2. It is now time for me to notice the main contentions canvassed by the petitioner in support of the petition insofar as challenge to the legality of the order dated 5th August, 1980 passed by the appellate authority is concerned.

(1) The appellate authority had no jurisdiction to pass the impugned order withholding two increments with future effect as the said order was beyond the scope of rule 6(2) of the rules.

(2) Withholding of two increments with future effect is a major punishment for which necessary procedure has not been followed by the departmental authority and hence also, the impugned penalty order is null and void.

(3) The original order of transfer directing the petitioner to shift from Bhavnagar to Savarkundla amounted to reduction of the petitioner from class II to class III service and hence the said order was null and void and consequently, it could not have been confirmed with modification by the appellate authority by its order dated 5th August, 1980.

(4) The appellate authority while confirming the order of the disciplinary authority on 5 August, 1980 ought to have seen that the original order passed by the disciplinary authority was null and void in as much as the petitioner who was at the relevant time a class II servant could not have been imposed the penalty in question by the Director of Social Welfare and the only competent authority in that connection was the State of Gujarat and hence also, the order of disciplinary authority being null and void could not have been confirmed by the appellate authority even though with slight modification in favour of the petitioner so far as penalty is concerned.

(5) In any case, the order of 5th August, 1980 passed by the appellate authority withholding two increments of the petitioner with future effect is too excessive and harsh.

3. So far as the first contention is concerned it must be noticed that the petitioner's case is governed by the provisions of the Rules as the petitioner is admittedly a State Government servant to whom the aforesaid Rule apply. Part III of the rules deals with the topic of 'Discipline'. Rule 6 found in that part deals with nature of penalties and lays down that :-

'Without prejudice to the provision of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any number of the State, subordinate or inferior services, namely :- (1) Censure.

(2) Withholding of increments or promotion.

(3) Recovery from his pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders'.

4. The petitioner submitted that under the scheme of rule 6(2), there is no provision made to withhold increments of the Government servant with future effect and consequently, the impugned order is de hors the provision of rule 6(2). It is not possible to agree with the aforesaid contention of the petitioner. The disciplinary authority has been conferred power to impose minor penalty on the delinquent by withholding the increments of such delinquent. Whether withholding of increments should be with future effect meaning thereby till the entire span of unexpired service period of the delinquent up to his superannuation or his ceasing to be a Government servant, as the case may be or whether it should be for a given number of years, is a question which is left to the discretion of the disciplinary authority. On the express language of rule 6(2), there is complete power with the disciplinary authority to withhold increments for all time to come, meaning thereby, with future effect. The disciplinary authority may reduce the impact of such withholding of increments to a lesser period. In these circumstances, it cannot be said that the disciplinary authority has no power to withhold increments of the delinquent like the petitioner with future effect. In fact, such power flows from the four corners of rule 6(2) itself. The petitioner would have been on a better footing if ceiling was imposed by rule 6(2) itself laying down all upper limit upto which increments can be stopped taking penalty for five years, six years etc. If such a ceiling was placed by the rule making authority on the power to impose minor penalty on the delinquent, then it could have been urged successfully that any order of minor penalty which travels behind this ceiling would be ultra vires. But unfortunately for the petitioner, no such ceiling about the period for which increments can be withheld by way of minor penalty is noticed in rule 6(2). Consequently, the first contention of the petitioner that the disciplinary authority had no power to impose minor penalty of withholding of increments with future effect cannot be accepted.

5. So far as the second contention is concerned, it has to be repelled on the very same reasoning. The rule making authority in terms treated withholding of increments or promotion, whether for a given number of years or with future effect indefinitely as a minor penalty. Consequently, withholding of increments by way of penalty with future effect meaning thereby, coinciding with the entire unexpired span of service tenure of the delinquent has to be treated as a major penalty. If that is so, there is no occasion to follow the procedure for passing major penalty in such as case. It is an admitted position between the parties that necessary procedure for imposing minor penalty has been followed in this case. Only if major penalty is imposed that a question would arise whether procedure for imposing major penalty was allowed or not. The penalty order in question falls within rule 6(2) as seen above. The procedure for imposing major penalty is laid down by rule 9(1) which reads as under :

'(1) No order imposing any of the penalties specified in items (4) to (8) of rule 6 shall be passed except after an inquiry, held as far as may be, in the manner provided in this rule and rule 10 or in the manner provided by the Public Servants (Inquiry) Act, 1950 where such inquiry is held under that Act'.

It is obvious that the impugned order of penalty which falls within items No. 2 or rule 6 is not covered by rule 9(1). Under these circumstances, the second contention of Mr. Acharya, party-in-person that procedure of major penalty should have been followed cannot be accepted. Relying on a decision of the Supreme Court in the case of Ram Dass v. State of Punjab, (1968, S.L.R. 792), the petitioner submitted that the disciplinary authority has no jurisdiction to impose any punishment which is not provided by the rules and that if the order of penalty does not record reasons, it would be illegal. Now, in the first place, it must be kept in view that this petition is admitted only for the limited purpose of examining the legality of the appellate order dated 5th August, 1980, withholding two increments of the petitioner. Therefore, strictly speaking, I am not concerned with the original order of the disciplinary authority at annexure 'F'. So far as the appellate authority is concerned, this order is sufficiently speaking. It gives detailed reason why the petitioner is required to be penalised for his misconduct and how minor penalty of less harsh nature should be imposed upon him. The appellate order at annexure 'H' which is a 6-page typed order giving reasons by the appellate authority, cannot be found fault with on the ground that it is not a speaking order. So far as the second contention of the petitioner that the disciplinary authority cannot impose any penalty contrary to the rules is concerned, there cannot be any dispute about the same. But as I have discussed earlier, the impugned order of penalty certainly fails within rule 6(2) and consequently, it cannot be said to be ultra vires or illegal on that count. The second contention, therefore stands repelled.

6. That takes me to the third contention canvassed by the petitioner. He submitted that the original order of transfer of headquarter from Bhavnagar to Savarkundla reduced the petitioner from a class II to class III servant and, therefore, it amounted to reduction in rank. It is not possible to agree with his contention. Strictly speaking, I am not concerned with the legality and propriety of the original order of transfer as that order is not challenged in the proceedings before me, and cannot be challenged as the petitioner itself is admitted or considered of a solitary challenge regarding legality of the penalty order dated 5th August, 1980. But the apart, even on merits, there is no substance in that contention. At the relevant time, the petitioner was a class II employee at Bhavnagar. He had, amongst other Savarkundla court with in his jurisdiction. By the transfer order, all that happened was that his headquarter was shifted from Bhavnagar to Savarkundla and he was allowed to work only at Savarkundla court. That does not mean that the petitioner was reduced in rank from class II to class III. He remained a probation officer. The only change brought about was that his headquarter was changed and instead of he being placed in charge of four taluka courts, he was sought to be placed in charge of one Taluka court. Thus, the extent of his workload was reduced alongwith change of headquarter. But that did not affect in the least his status as class II servant. There is no question of reduction in rank involved in that order. The petition invited my attention to rule 6(4) of the rules which reads as under :-

'Reduction to a lower stage in the time scale to pay for a specified period, with further directions as to whether or not the Government servant will earn increment 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 further increments of pay.'

It is not in dispute that rule 6(4) deals with major penalty. But before it can be attracted, it has to be shown that the penalty order reduces the concerned delinquent to the lower stage in time scale for a given period with additional reaction about stoppage of increments. Therefore, there must be first reduction of the delinquent to the lower stage in the time scale of pay for a given period. Unless that happens, rule 6(4) does not get attracted. On the facts of the present case, the petitioner was never reduced to the lower stage in the time scale of pay for any given period. All that happened was that he continued to draw salary in the same scale of pay as a probation officer, but two increments were withheld with future effect. That consequently brought his case within the ambit of rule 6(2) which deals with a minor punishment. Hence, there is no substance even in the third contention of the petitioner.

7. So far as the fourth contention is concerned, it was vehemently submitted by the petitioner that he, at the relevant time, was a class II Government servant. He invited my attention to Government notification at annexure 'A' to the petition read with notification dated 30th October, 1979 at annexure 'A'. A combined reading of these two annexures shows that the petitioner was treated as class II gazetted officer with effect from 3rd October, 1975. Consequently, on the date on which the impugned order was passed by the appellate authority on 5th August, 1980 as confirmed the order of the disciplinary authority dated 21st April, 1977 with modification, it has to be held that to petitioner who was delinquent at the relevant time was a class II gazetted officer. In that background, the question remains whether the Director of Social Defence could have passed the first order against the petitioner. Now strictly speaking, this contention will not be open to the petitioner for the simple reason that the petition is not admitted in so far as the grievance of the petitioner against the original order of disciplinary authority is concerned. It is only admitted to the limited extent that it deals with the legality of the appellate order dated 5th August, 1980. But even that apart, even on merits, there is no substance in this contention as I will presently show. The disciplinary authority imposed upon the petitioner minor penalty of withholding of his promotion for five years. This is covered by rule 6(2) which concerns minor penalty. Thus, the disciplinary authority even initially passed a minor penalty order against the petitioner. If that is so, the Director of Social Defence was certainly entitled to pass such minor penalty order against class II Government servant. Rule 7 deals with disciplinary authority. Sub-rule (1) of rule 7 states that the Government may imposed any of the penalties specified in rule 6 on any Government servant. That obvious would cover minor and major penalties. Sub-rule (2) is relevant for the present purpose. It reads as under :-

'Without prejudice to the provisions of sub-rule (1) the head of a department may impose any of the penalties specified in items (1) and (2) of rule 6 on any Government servant of State Service, Class II, under his administrative control'.

8. The order withholding promotion for five years initially passed by the disciplinary authority is an order covered by item (2) of rule 6. It is not in dispute that the Director of Social Defence is the head of the department in which the petitioner worked at the relevant time. Consequently, the Director of Social Defence, as the head of the department, was entitled to impose minor penalty on the petitioner as laid down by rule 7(2) read with rule 6(2). Consequently, the fourth contention raised by the petitioner is found to be devoid of any substance and has to be rejected.

9. (Rest of the judgment is not material for the reports).


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