Shyam Sunder Sharma vs State of Haryana

Swatanter Kumar, J.—In this regular second appeal the main contention raised on behalf of the appellant is that the judgments of the Courts below are contrary to the law enunciated by the Hon''ble Supreme Court of India in the case of Kulwant Singh Gill v. State of Punjab 1990(6) S.L.R. 73. It is contended that the learned Courts below have committed an error in law while deciding the case, therefore, substantial question of law arises for consideration in this regular second appeal.

plaintiff Sham Sunder Sharma was appointed by the State Government in the department of Food and Supplies in the State of Haryana. The plaintiff contends that he discharged his duties honestly and to the satisfaction of all concerned. In fact his zeal to work honestly earned him the displeasure of some officers and he was served with the charge-sheet. Accordingly to the department, after conducting an enquiry punishment of stoppage of two increments with cumulative effect was imposed upon the petitioner and adverse remarks were recorded in his annual confidential report for the year 1984-85. While impugning the order of punishment, it is stated that the impugned punishment is a major penalty while the procedure provided under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules., 1987, hereinafter referred to as the Rules, was not adopted by the competent authority which is contrary to the statutory provisions and opposed to the provisions of natural justice. No opportunity to defend was granted to the delinquent. The appeal of the plaintiff was also dismissed vide order dated 2.7.1990. plaintiff filed a suit for declaration that the said two orders were null and void and as such were liable to be set aside and the plaintiff was entitled to all consequential reliefs. The suit was contested by the defendants who took up the stand that there were serious charges against the plaintiff. Show cause notice was issued to the plaintiff. His reply dated 14.10.1985 was considered and after taking the comments of District Food and Supplies Officer, Gurgaon, the impugned orders were passed which were otherwise in accordance with law.

The learned trial Court vide its judgment and decree dated 30.9.1998 dismissed the suit of the plaintiff. The Court held that the Punjab Civil Services (Punishment & appeal) Rules, 1952 were applicable and it was not mentioned in the said rules that stoppage of increments with cumulative effect was a major penalty. Unsuccessful plaintiff preferred an appeal which was also dismissed by the learned First Appellate Court vide its judgment and decree dated 4.8.1999 giving rise to this regular second appeal.

It may be noticed at the very outset that the trial Court had framed the following issues :-

Whether the order dated 27.8.1986 and 2.7.1990 passed by defendant is illegal, null and void ? OPP.

Whether the suit is within limitation ? OPP

Whether the jurisdiction of civil Court is barred ? OPD

Relief.

The learned Court answered other issues in favour of the plaintiff, but denied relief under Issue No. 1. It may be noticed that in the case of Kulwant Singh Gill (supra) the Hon''ble Supreme Court was conferred with the interpretation of somewhat similar rules i.e. Punjab Civil Services (Punishment and Appeal) Rules, 1970, where under Rule 5 withholding of increment of pay like the present one, was stated to be a minor punishment. The Hon''ble Apex Court held that once there was stoppage of increment with cumulative effect, it could never be stated to be a punishment falling under the cause relating to minor penalty which the department can impose upon its employee.

During the course of arguments it was conceded by learned counsel for the parties that Haryana Civil Services (Punishment and Appeal) Rules, 1987 are applicable in the present case and under Clause (v) of the said Rules, withholding of increments of pay without cumulative effect is stated to be a minor punishment. This rule cannot be deemed to be applicable or attracted where the punishment enforced is that of stoppage of increments with cumulative effect.

Learned counsel for the State contended that the punishment imposed is in accordance with Rule 8 of the said Roles. This was neither the case pleaded nor proved on record by the State. In any case, even under Rule 8 principles of natural justice and the law enunciated by the Hon''ble Supreme Court of India has to be complied with. It is not a case where the regular departmental enquiry was conducled against the plaintiff and he was punished upon the result of said enquiry. Once a major punishment is being imposed, the employee is entitled to the benefits of procedure provided under the said Rules. The Hon''ble Supreme Court of India in the case of Kulwanl Singh Gill (supra) was also dealing with the punishment awarded by the disciplinary authority which was much prior to its pronouncement. In that case the punishment of stoppage of two increments not to be counted in the time scale as a penalty was imposed vide order dated 12.4.1977. In Kulwant Singh''s case (supra) Rule 5(iv) specifically provided for withholding of increment of pay under the head minor penality. The State Government argued that stoppage of increment not to be counted in the time scale was a minor penalty within the rules and, thus, appropriate procedure had been adopted under the rules for imposition of minor penalty. This argument was rejected by the Hon''ble Supreme Court of India as already noticed. In the present case, on the strength of similar rules, identical argument is being-raised. The said arguemnt is liable to be rejected as it is squarely covered by the judgment of the Hon''ble Apex Court.

Another argument that has been raised before the Court on behalf of the appellant is that the comments submitted by the District Food and Supplies officer, Vigilance Department, which were submitted to the disciplinary authority were also taken into consideration, though copy of such comments was never furnished to the plaintiff. This itself would again be in violation of principle of natural justice. The said report, thus, was immaterial which was considered by the disciplinary authority at the back of the plaintiff. Consideration of such document by the disciplinary authority has apparently resulled in prejudice to the right of the plaintiff. Reference in this regard can be made in the judgment of the Supreme Court in the case of State Bank of Patiala and others Vs. S.K. Sharma, .

For the aforesaid reasons I have no hesitation in accepting this appeal and setting aside the judgment and decree of the learned Courts below. Consequently, the impugned orders dated 27.8.1996 and 2.7.1990 are declared to be null and void and ineffective and are set- aside. However, keeping in view the settled principles of law as enunciated by the Hon''ble Supreme Court of India in the case of Lily Thomas, Vs. Union of India and Others, , the Government is at liberty to proceed with the same departmental enquiry from the stage immediately preceding the passing of the above impugned orders. The Government, if so advised, may proceed with the said enquiry further in accordance with law.

With the aforesaid observations the regular second appeal is disposed of with no order as to costs.

Appeal disposed of.