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Delhi High CourtIndian Cases

Shiv Raj Sharma vs Presiding Officer Delhi School … on 4 August 2006

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Delhi High Court
Shiv Raj Sharma vs Presiding Officer, Delhi School … on 4 August, 2006
Equivalent citations: 132(2006)DLT88
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT

J.M. Malik, J.

Page 2834

1. The two short questions which fall for the consideration in this writ petition are firstly whether the Inquiry Officer was authorized to impose penalty of withholding of three increments due in 1984, 1985 and 1986 “with recurring effect” and secondly imposition of such penalty comes within the purview of minor penalty or major penalty as defined in Rule 117 (a) or (b) of the Delhi School Education Rules 1973. The petitioner, a Teacher in Swami Sivananda Memorial Secondary School, East Punjabi Bagh, was served with a show cause notice dated 5.6.1985 proposing penalty withholding of three increments due in 1984, 1985 and 1986 with recurring effect. He received memorandum dated 26.6.1985 wherein such penalty was imposed.

2. Learned Counsel for the respondents argued with vehemence that withholding of three increments with recurring effect is only a minor penalty and it does not tantamount to reduction in rank as provided in Clause (b) of Section 117. He pointed out that since the present case clearly falls within the ambit of Rule 117 (a), therefore, there was no need of holding regular inquiry as envisaged in Rule 120 of the said Act. He admitted that at the initial stage, memorandum dated 30.10.1984 mentions that the respondent proposed to hold an inquiry against the petitioner under Rules 117-120 of the Delhi School Education Rules, 1973. He also admitted that show cause notice dated 5.6.1985 mentions Rule 120-D of the Delhi Education Rules. The relevant extract of Show cause notice runs as follows:

Further as required under Rule 120 (d) of Delhi Education Rules the Disciplinary Authority agree with the Inquiry Officer….
He stressed that, however, in the end it is clearly mentioned, AND WHEREAS on careful consideration of the inquiry report it is provisionally concluded that though the charges invite major penalties e.g. removal from service/ dismissal from service/ compulsory retirement as provided under Rule 117(b) of DSER, 1973, as Sh. Shiv Raj Sharma Sr. P.E.T. had neglected his duties, contested the election of MCD in 1977 without the permission of the competent authority & misappropriated the funds of PTA by not handing over the charge of the Treasurer, along with the balance money till today, but keeping in view his age & length of service etc. The disciplinary Authority has taken the lenient view and is of the opinion that; the increments of Sh. Shiv Raj Sharma due in 1984, 1985 & 1986 may be withheld with recurring effect.
Page 2835
3. He opined that mere non-mention of Rule 119, under which the inquiry should have been made, by itself does not in any way go to enervate the value of above said proceedings. He also submitted that, although, Rule 117(a) does not specifically arm the Inquiry Officer to withhold increments with recurring effect, yet, it does not mean that he is not vested with that power. He submitted that on the contrary it should be assumed that the Inquiry Officer is empowered to withhold increments with recurring effect. He conceded that it is true that procedure under Rule 120 was not adopted and there was no such need because by issuing show cause notice the Inquiry Officer had come down to Rule 119 for which the formalities required under Rule 120 are not to be completed.

4. The Delhi School Tribunal vide its order dated 21.11.1990 came to the conclusion that the above said penalty is not a major penalty. Consequently, it held that the appeal filed before it was not maintainable.

5. I clap no importance to these submissions. The learned Counsel for the respondent has drawn my attention towards an Apex Court authority reported in Kulwant Singh Gill v. State of Punjab 1990 (3) All India Service Law Journal Page 135. The Apex Court was dealing with Punjab Civil Services (Punishment and Appeal) Rules 1970. In order to understand the position clearly it would be worthwhile to reproduce both the relevant Rules.

Rule 117 of the Delhi School Education Rules runs as follows:

117. Penalties and disciplinary authority- The following penalties may, for good and sufficient reasons, including the breach of one or more of the provisions of the Code of conduct, be imposed upon an employee of a recognised private school, whether aided or not, namely:
(a) Minor penalties,-
i) censure;
ii) recovery from pay the whole or any part of any pecuniary loss caused to the school by negligence or breach of orders;
iii) withholding of increments of pay;
(b) Major penalties,-
i) reduction in rank;
Clause (ii) and (iii) are not relevant to the facts of this case.

Rule 5 of Punjab Civil Services (Punishment and Appeal) Rules prescribes the penalty, thus,

5. Penalties: – The following penalties, for good and sufficient reasons, and as hereinafter provided, be imposed on a Government employee, namely:

Minor Penalties
i) Censure;
ii) withholding of his promotions;
iii) recovery from his pay of the whole of part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
iv) withholding of increments of pay;
Major Penalties Page 2836

v) 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;

Clauses VI to IX are not relevant to the facts of the case.

6. The Apex Court was pleased to hold, 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 means 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.

It was further held, 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 penneated. 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 or 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 inquiry is per se illegal.

7. I find that the order passed by the disciplinary authority is not legally tenable. Firstly, it was not at all empowered to impose penalty of withholding increments with recurring effect under Rule 117(a). It appears to have Page 2837 arrogated to itself those powers which did not vest with it under Rule 117(a). Strictly speaking this power does not come within the parameters of Rule 117(a). Consequently, the order is per se illegal. It must be borne in mind that if a provision is patient of two interpretations, its benefit must go to the subject.

8. Secondly, the procedure adopted by the disciplinary authority was not correct. It went on to proceed under Rule 120 which is meant for imposing major penalty even up to the eleventh hour. Even the show cause notice, which was given at the fag end of the inquiry dated 5.6.1985 mentioned about Rule 120 D. In the instant case, the petitioner was not permitted to inspect the documents, cross-examine the witnesses, adduce defense evidence etc. Again no notice was given to the petitioner that the respondent had made up its mind to come down to procedure under Rule 119. Above all, the learned Counsel for the respondent conceded that no regular inquiry under Rule 120 was conducted.

9. Last but not the least, Rule 117 (b) (i) of the Delhi School Education Rules prescribes major penalty i.e. (i) “reduction in rank” and Rule 5 (v) of Punjab Civil Services (Punishment and Appeal) Rules prescribes major penalty i.e. “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,” when read in juxtaposition with each other, it may not appear to be para materia with each other but it gives sufficient inkling that imposition of penalty of withholding of three increments due in 1984, 1985 and 1986 with recurring effect does not come within the purview of minor penalty as is apparent from the above cited authority.

10. Order dated 4.1.2005 reveals that the petitioner’s counsel had stated that he was not challenging the vires of Rule 120 (3) of the Delhi School Education Rules, 1973.

11. The whole gamut of above discussion leans on the side of the petitioner. The respondent No. 1 has made a clumsy attempt to impose penalty. In the result, I accept the writ petition and quash the orders of respondents dated 21.11.1990 and 26.6.1985 and direct the respondents to refix the salary of the petitioner with all increments due to him and he be paid interest @ 6% P.A. No order as to costs.