State of Punjab vs Jagtar Singh

G.R. Majithia, J.—This appeal is directed against the judgment and decree dated June 2, 1986 passed by the learned Additional District Judge, Ludhiana in Civil Appeal No. 81/34 of 1985. The Respondent filed a suit for declaration to the effect that the order passed by the Appellants withholding his one increment with cumulative effect, with effect from June 6, 1975 was illegal and void. He further alleged that order dated June 6, 1975 came to his notice only in January, 1984. According to the Respondent, the order was in the nature of a major punishment which could only be inflicted after holding proper enquiry.

The Appellants controverted the allegations made by the Respondent and from the pleadings of the parties the following issues were framed:

(1) Whether order No. 4158/61 TC No. 2 dated 6-6-1975 is void, illegal and arbitrary and is not binding on the Plaintiff? OPP

(2) Whether the suit is within limitation ? OPP

(3) Whether this Court has no territorial jurisdiction to try and decide the present suit ? OPD

(4) Whether a valid notice u/s 80 CPC was served upon the Defendant before filing the present suit ? OPP.

(5) Relief.

The learned first appellate Court on appraisal of order dated June 6, 1975, vide which one increment was stopped with cumulative effect, held that the order was not a speaking order since it has not been passed in terms of Rule 10 (b) of the Punjab Civil Services (Punishment and Appeal) Rules (for short ''the Rules''). The learned Judge further found that the order under challenge caused prejudice to the Respondent and the punishing authority ought not have adopted a short cut method. It was alleged against the Respondent that he misappropriated and embezzled an amount of Rs 2.70 and under these circumstances it was obligatory for the punishing authority to have passed a speaking order. The learned Judge having found that the order withholding the increment was void, held that the suit was within limitation. According to the learned Judge, a void order is no order in the eye of law and the Plaintiff''s suit cannot be held to be beyond limitation.

It will be relevant to refer to the provisions of Rule 10 of the Rules, which read as follows:

Procedure for imposing minor penalties:(1) Subject to the provision of Sub-rule (3) of Rule 9, no order imposing on a Government employee any of the penalties specified in Clause (i) to (iv) of Rule 5 shall be made except after-

(a) informing the Government employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such represention a he may wish to make against the proposal ;

(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 8, in every case in which the punishing authority is of the opinion that such inquiry is necessary ;

(c) taking the representation, if any, submitted by the Government employee under Clause (a) and the record of inquiry, if any held under Clause (b) into consideration ;

(d) recording a finding on each imputation of misconduct or misbehaviour ; and

(e) consulting the Commission where such consultation is necessary.

(2) the record of the proceeding in such cases shall include-

(i) a copy of the intimation to the Government employee of the proposal to take action against him ;

(ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him ;

(iii) his representation, if any ;

(iiv) the evidence produced during the inquiry ;

(v) the advice of the Commission, if any ;

(vi) the findings on each imputation of misconduct or misbehaviour ; and

(vii) the orders on the case together with reasons therefor.

The withholding of an increment of pay is a minor penalty under Rule 5 of the Rules. Rule 10(d) of the Rules enjoins upon the punishing authority to record a specific finding on each imputation of misconduct or misbehaviour. The Plaintiff is charged for embezzlement of funds. He was issued a notice and a reply to that notice was also filed by the delinquent employee but white rejecting the explanation of the Respondent, no reasons were given by the punishing authority. The learned Counsel for the Appellants read out before me the order passed by the punishing authority withholding one increment. It only recites that explanation furnished by the delinquent employee is not acceptable. The order does not satisfy the test of Clause (d) of Rule 10 of the Rules. The punishing authority could reject the explanation furnished by the Respondent but only by giving reasons in support of the order. I do not find any infirmity in the reasoning advanced by the first learned appellate Court while holding that the order withholding the increment of the Respondent is vitiated because it is not a speaking order.

It is not disputed that the order which has been passed in breach of the mandatory provisions of the statute, is no order in the eye of law and is a void order. If it is so, the astringent provisions of the Limitation Act are not attracted. Resultantly, I find no force in the appeal and the same is dismissed. However, m the circumstances of the case, I leave the parties to bear their own costs.