State of Haryana vs Ram Pal

Sat Paul Bangarh, J.—Respondent, herein, was appointed as Conductor on 30.40.1974 and since then, he had been serving the appellants honestly and sincerely. Even, so, annual increments w.e.f. 30.04.1977 were not given to him without any reason. He made representation for grant of annual grade increment of 21.04.1986. It was replied by the appellants that the increment has been permanently stopped. The legality and propriety of permanent stoppage of the increment (s) were challenged by the respondent before the trial Court in a suit for declaration to the effect that the order of permanent stoppage of increment is illegal and void and notwithstanding, he is entitled for increments due to him. He was informed for the first time vide order dated 12.05.1986 regarding stoppage of his annual increment. So, cause of action arose to him from that day. Before, filing of suit notice u/s 80 CPC was served on the appellants.

Appellants in their joint written statement, apart from taking preliminary objections of maintainability of suit, limitation and that the respondent has not challenged the specific order of stoppage of increment, averred that all the actions taken against the respondent were duly intimated to him and he was given increments on 03.04.1975 and 01.04.1976 and later on his increments were stopped, as a result of departmental enquiries. Rest of the averments contained in the plaint were controverted and prayer for dismissal of the suit was, thus, made.

In the replication, pleas taken in the plaint were reiterated, and those of the written statement controverted. On pleadings, following issues were framed on 27.05.1988:

Whether the order stopping the annual increments of the plaintiff is illegal, null and void as alleged? OPP.

Whether the suit is not maintainable? OPD.

Whether the plaintiff has no locus standi to file the present suit? OPD.

Whether the suit is bad for want of notice u/s 80 of the CPC? OPD.

Whether the civil Court has got no jurisdiction to entertain the matter? OPD.

Relief.

Respondent examined himself as PW-1 and closed evidence later, after tendering registered notice Ex. PW-1/1, postal receipts Ex. P1 to Ex. P4, acknowledgments Ex. PW 1/5 to Ex. PW 1/7.

Appellants, who were defendants before the trial Court examined Ram Singh as DW-1 and closed evidence later, after tendering documents Ex. D1 to Ex. D15. In rebuttal, the respondent (plaintiff) tendered documents Ex. PA to Ex. PF.

After hearing both the sides, as also, after perusal of the evidence and material on record, the trial Court decided Issue No. 1 against the respondent and in favour of the appellants, Issue No. 2 also against the respondent and in favour of the appellants, Issues Nos. 3 to 5 in favour of the respondent and against the appellants and dismissed the suit vide judgment and decree dated 16.11.1988.

Aggrieved against the same, the respondent, who was plaintiff before the trial Court, filed Civil Appeal No. 28/127 of 1989 against the appellants before the Additional District Judge, Rewari, that was accepted vide judgment and decree dated 11.06.1990 decreeing the suit of the respondent, that was filed by him before the trial Court.

Aggrieved against the same, the appellants who were defendants before the trial Court, have come up with this Regular Second Appeal with prayer for acceptance, thereof, and for setting aside the impugned judgment and decree, of the lower Appellate Court and for restoration of the judgment and decree dismissing the suit of the respondent, that were passed by the trial Court.

Learned counsel for the appellants mainly contended that the impugned judgment and decree passed by the first Appellate Court are based on conjectures and surmises. He also contended that the first Appellate Court has gone wrong in deciding Issue No. 1 against the appellants, taking into consideration only a few of the impugned orders i.e. Exhibits D-1, D-3, D-6, D-9 and D-13 and by holding that these are not speaking one. He further contended that, indeed, there are 15 orders in all that were passed against the respondent by the competent authorities that were challenged by the respondent by way of civil suit out of which the present appeal arose.

Learned counsel for the appellants further contended that though the first Appellate Court ought to have taken into consideration the other documents i.e. Exhibits D-2, D-4, D-5, D-7, D-8, D-10 to D-12 and D-14 and D-15 and non-consideration, thereof, resulted in recording the findings against the appellants. He also contended that the suit of respondent was time barred and the first Appellate Court has not given categoric finding in this regard on Issue No. 1, that the respondent has not challenged any specific order in the suit and has only levelled general allegations against the impugned orders.

So, he contended that the appeal should have been dismissed, as admittedly the impugned orders pertaining to the year 1976, were challenged after the expiry of 11 years, whereas, as per Article 113 of the Limitation Act, 1963, the limitation for challenging this order was three years from the date of passing of this order. So, he contended that impugned judgment and decree may be set-aside and the judgment and decree of the trial Court dismissing the suit of the respondent may be restored.

On the other hand, learned counsel for the respondent contended that the impugned judgment and decree were rightly passed by the first Appellate Court, as admittedly, the impugned orders of stoppage of annual increments of the respondent with cumulative effect were major penalties, that should have been preceded by issuance of charge sheet and holding of enquiry, therein, which has not been done in this case. Therefore, the impugned penalties being major penalties were required to be set aside. He also contended that the first Appellate Court rightly held that Article 100 of the Limitation Act will not come to the rescue of the appellants, as the void order can be challenged at any time, as per law laid down by this Court in State of Punjab v. Malkiat Chand; 1988 (4) SLR 243. So, the suit was, thus, rightly held to have been filed within a period of limitation.

Thoughtful consideration has been given to the contentions raised by the learned counsel for the parties, as also, record of the trial Court perused with their assistance.

It is the case of the respondent, that his annual increments w.e.f. 30.04.1977 were not granted and, therefore, he made representation to the appellants for grant, thereof. He made representation in this regard and appellants in reply, thereto, alleged that the stoppage of his increments were on the ground of malafide on his part. It is his case, that no adverse entry in his service record was ever communicated to him and he was for the first time informed about the order dated 12.05.1986 regarding the stoppage of his increment.

So, the cause of action arose to him from 12.05.1986. The appellants have not placed any record to show that the respondent was apprised of the orders of stoppage of his increments with cumulative effect, prior to 12.05.1986.

Learned counsel for the respondent contended that the latter has not challenged those increments, that were stopped without cumulative effect. Challenge is only to the stoppage of those increments, which were stopped with cumulative effect. The question arises is, as to whether the punishment of stoppage of annual grade increments of the respondent with cumulative effect was a major penalty or not.

Reliance can be placed upon Kulwant Singh Gill Vs. State of Punjab, passed by the Hon''ble Supreme Court of India, wherein, it was held that the order of stoppage of two increments with cumulative effect would fall within the meaning of Rule 5(v) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. So, it was held that where impugned order is a major penalty, then a regular enquiry has got to be conducted, as enshrined in Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970.

The first Appellate Court in the impugned judgment referred to Exhibits D-1, D-3, D-5, D-6, D-9, D-11 and D-13. All these exhibits pertain to the major penalties i.e. Stoppage of increments with cumulative effect.

Indubitably, the appellants did not hold any departmental enquiry against the respondent in the cases (supra) before passing of the impugned penalty of stoppage of annual grade increments of respondent with cumulative effect.

Indubitably, the procedure as enshrined in Rules 8 and 9 of the Rules (supra) was not followed prior to the passing of the impugned punishments. Only show cause notice seems to have been issued against the respondent and his replies have been taken, that were found to be unsatisfactory and the impugned punishments followed.

The first Appellate Court below observed in the impugned judgment that the orders Ex. D1, Ex. D2, Ex. D3, Ex. D4 and Ex. D6 pertain to the year 1976. Vide these five orders, as many as 8 increments of the respondent were ordered to be stopped with cumulative effect. Even, in the year 1976, the respondent had not earned more than two annual grade increments.

Even, the first Appellate Court described the with-holding of increments with cumulative effect, as a minor penalty by placing reliance upon State of Punjab v. Jagtar Singh; 1989 (1) PLR 77.

In view of the Kulwant Singh Gill''s case (supra) decided by the Hon''ble Apex Court, the stoppage of increment with cumulative effect is a major penalty and, therefore, the impugned orders imposing penalties of stoppage of annual grade increments with cumulative effect upon the respondent were a major penalties and, therefore, an enquiry as enshrined in Rules 8 and 9 of the Rules (supra) was to be conducted, that was not conducted.

So, the impugned orders of imposing major penalty upon the respondent are liable to be set aside, as these were not preceded by service of charge sheet upon the respondent and holding of enquiry against him. Thus, on this ground alone, the impugned penalties are liable to be set aside.

The case of the respondent, is that he learnt about the impugned orders only on 12.05.1986 and he filed the suit on 09.09.1987. In this manner, he filed the suit well within a period of limitation.

The first Appellate Court rightly reversed the findings of the trial Court on issues Nos. 1 and 2 and rightly decided those in favour of the respondent and against the appellants. There is no challenge to findings of the Court below on other issues. There is, thus, no illegality or impropriety in the findings of the first Appellate Court on issues Nos. 1 and 2, that are, hereby, upheld and affirmed, as also, the impugned judgment and decree are also upheld and affirmed.

Resultantly, the appeal fails and is, hereby, dismissed with costs.

Decree sheet be prepared, accordingly.