High Court Punjab-Haryana High Court

M/S Indian Drugs And … vs J.K.Sethi on 5 February, 2009

Punjab-Haryana High Court
M/S Indian Drugs And … vs J.K.Sethi on 5 February, 2009
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                              CHANDIGARH


                                           L.P.A. No.22 of 2006
                                           Date of decision: 05.02.2009



M/s Indian Drugs and Pharmaceuticals Ltd.             .....Appellants
and another

                                versus

J.K.Sethi                                             ....Respondent

CORAM:HON'BLE MR. JUSTICE M.M.KUMAR
            HON'BLE MR .JUSTICE H.S.BHALLA


Present: Mr. Subhash Ahuja, Advocate for the appellants.
            Mr. Arun Nehra, Advocate for the respondent.

1.          Whether reporters of local papers may be allowed to
            see the Judgment?

2.          To be referred to the reporters or not?

3.          Whether the judgment should be reported in the digest?
                              -----

M.M.KUMAR, J.

This appeal filed under Clause X of the Letters Patent, is

directed against judgment dated 27.04.2005 passed by the learned Single

Judge of this Court in C.W.P. No.16608 of 2002. The learned Single

Judge has allowed the petition filed by the petitioner-respondent and has

directed the appellant to consider his claim for promotion from the date

persons juniors to him were promoted by treating him to be the senior

most Executive Assistant from the date he was reinstated.

Brief facts of the case necessary for disposal of the appeal are

that the petitioner-respondent was appointed as Distribution Assistant in
L.P.A. No.22 of 2006 -2-

the appellant-Company on 24.04.1969. He was promoted to the post of

Executive Assistant in the year, 1977 and thereafter on the post of

Personnel Executive on 13.01.1986. A regular departmental enquiry was

conducted against him and the charges were found to be proved.

Consequently, he was dismissed from service by the punishing authority

on 10.04.1990. However, he partially succeeded before the Appellate

Authority and vide its order dated 05.06.1991, the Appellate Authority

reduced the punishment by passing the following order viz. (a) that the

petitioner be reinstated with immediate effect and the intervening period

between the date of his termination and the date of rejoining was to be

treated as break in service; (b) He was to be reduced to the lower post of

Executive Assistant in the scale of pay of Rs.1090-1850 ; (c ) …………..

The aforesaid order was challenged by the petitioner-

respondent before Delhi High Court in C.W.P. No.2763 of 1991. The

writ petition filed by him was dismissed by a Division Bench on

28.04.1992. The order dated 05.06.1991 was then implemented by

placing him at the tale end of the seniority list of Executive Assistant.

The petitioner-respondent claimed that he was entitled to be promoted

w.e.f. 09.04.1972 as on reversion, he could not be placed at the tale end

in the lower cadre of Executive Assistant. Therefore, he complained in

the writ petition, allowed by the learned Single Judge, that persons junior

to him were given promotion in the years, 1992, 1994 and 1997. It is

pertinent to mention that earlier also, he filed C.W.P. No.2511 of 2002

in which he had prayed for issuance of directions to the appellant to

fix his seniority in the lower cadre of Executive Assistant in accordance
L.P.A. No.22 of 2006 -3-

with the Fundamental Rule 29(3) of the Fundamental Rules and

Supplementary Rules. The petition was disposed of by the Division

Bench on 07.02.2002 with a direction to the appellant to decide his

representation. The representation was rejected on 25.06.2002.

Accordingly, he filed another petition decided by the learned Single

Judge seeking the relief of issuance of direction to the appellant to fix

his seniority in the cadre of Executive Assistant in terms of Fundamental

Rule 29 (3) along with all consequential benefits. The learned Single

Judge had also noticed all the preliminary objections raised by the

appellants in their written statement namely that the petitioner had

already retired from service on 31.03.2001. The service in the appellant-

Company was not pensionable, the petitioner-respondent had already

been paid his retiral dues. The appellant-Company has been declared

sick with more than 90% of its employees have already been retrenched

or relieved under the Voluntary Retirement Scheme and the Fundamental

Rule 29 would not apply because the petitioner was not reduced in rank

by way of punishment but was given fresh appointment as Executive

Assistant.

The learned Single Judge refused to accept the defence of the

appellant that the petitioner was not reduced in rank by way of

punishment. On the basis of the order dated 05.06.1991 dismissing the

petitioner-respondent from service as modified by the Appellate

Authority, the learned Single Judge concluded that the intervening

period between the date of termination and date of rejoining was to be

treated as break in service. Therefore, there was no escape from the

conclusion that the petitioner had been reverted by way of punishment.
L.P.A. No.22 of 2006 -4-

The learned Single Judge also recorded the findings that the pay of the

petitioner undisputably was protected in the pay scale of Rs.1090-1850.

The learned Judge then went on to interpret Rule 29(3) of the Rules and

held as under :-

“A perusal of the aforesaid rule shows that

a Government servant may be reduced to a lower

service either for a specified period or for an

unspecified period. In cases where the period has

been specified, the Competent authority shall have to

indicate the date from which it will take effect and

the period for which the penalty shall be operative.

However, in case the period of the penalty is not

specified, the conclusion is that the penalty is for an

unspecified period. Fundamental Rule 29(3)

provides that when a Government Servant is reduced

to a lower service grade or post whether for a

specified or unspecified period, the pay in the lower

service shall be regulated in accordance with FR 28.

Therefore, even though there would be break in the

service of the petitioner, it would have only the

effect that the period would not be counted for the

purposes of increments. The punishment of break in

service is not provided under any of the punishment

and appeal rules. The term “break in service” in the

impugned order would not mean that the petitioner

would be placed at the bottom of seniority of
L.P.A. No.22 of 2006 -5-

Executive Assistant. Since his pay was protected, he

has to be placed at the top of the seniority of

Executive Assistant on reinstatement. Even

otherwise since the period of reduction was

unspecified, the petitioner would be clearly entitled

to be placed as the senior most Executive Assistant.

He would thereafter be entitled to be considered for

promotion on the basis that he was the senior most

Executive Assistant.” (emphasis added)

We have heard learned counsel for the parties and have

perused the grounds of appeal, the judgment of the learned Single Judge

and the pleadings of the parties. The principal ground of attack against

the view taken by the learned Single Judge is that principle of res

judicata would apply as the petitioner-respondent had filed C.W.P.

No.2763 of 1991 in Delhi High Court, which was dismissed on

28.04.1992. However, a perusal of the order passed by Delhi High Court

would show that the writ petition was primarily directed against the

order dated 05.06.1991 passed by the Appellate Authority. The order

dated 28.04.1992 is set out below for a ready reference :-

“We have heard the counsel for the parties.

We find there is no merit in this petition in as much

as the findings of the enquiry officer and the

appellate authority are based on evidence showing

that initially, the petitioner had submitted a bill

regarding his L.T.C. to the Head Office where

certain objections were raised and the bill was not
L.P.A. No.22 of 2006 -6 –

passed and petitioner had taken back that bill and

had submitted another bill to the Regional Office

suppressing the objections which were raised in

respect of the first bill.

The punishment imposed on the petitioner

is not excessive. The enquiry report was given to

the petitioner before he had filed the appeal. The

judgment of the Supreme Court that the enquiry

report should be given before awarding punishment

was delivered by the Supreme Court after the initial

punishment was awarded to the petitioner and before

he filed the appeal, he was given the copy of the

enquiry report.

Dismissed.

Sd/- P.K. Bahri
Judge
Sd/- Mohd. Shamin
April 28, 1992. Judge”

A perusal of the order would show that there was no prayer

made in the aforesaid petition with regard to fixation of seniority under

Fundamental Rule 29 (2) nor such prayer could have been made as there

was no such cause of action. It was as a result of implementation of the

order dated 05.06.1991 that the cause of action to the petitioner-

respondent became available as he was placed at the bottom of seniority

list of Executive Assistant.

The other objection raised by the appellant is that no findings

were recorded with regard to delay in filing the petition. Firstly, the
L.P.A. No.22 of 2006 -7-

argument does not seems to have been raised before the learned Single

Judge. Secondly, the petitioner filed C.W.P. No.2511 of 2002, which

was disposed of by a Division Bench of this Court on 07.02.2002 by

issuing direction to the appellant to decide his representation, which was

rejected on 25.06.2002. Therefore, no question of delay would arise in

such circumstances.

The other ground of challenge is that Fundamental Rules were

not applicable as the petitioner-respondent was not reduced to rank by

way of punishment. The aforesaid argument has been considered by the

learned Single Judge by concluding that the punishment of dismissal was

reduced to the lower post of Executive Assistant by the Appellate

Authority on 05.06.1991 and therefore, it could not be concluded that

Rule 29 of the Fundamental Rules was not applicable. Rule 29 (3)

which is applicable to the case of the petitioner-respondent reads as

under :-

“(3) Reduction to a lower service, grade or post, or a

lower time-scale–Every order passed by a

Competent Authority under sub-rule (2) of FR 29

imposing on a Government servant the penalty of

reduction to a lower service, grade or post, or to a

lower time-scale should indicate-

(i) the date from which it will take effect and

in cases where the reduction is proposed to be

imposed for a specific period, the period (in terms of

years and months) for which the penalty shall be

operative. It should be noted that the reduction may
L.P.A. No.22 of 2006 -8-

be for an unspecified or an indefinite period and in

cases where no period has been specified in the

order of penalty, the conclusion is that the penalty is

for an unspecified period.

2. When the Government servant is reduced

to a lower service, grade or post, or to a lower time

scale whether for a specified or unspecified period,

the pay in the lower service, grade or post or lower

time scale, should be regulated in accordance with

FR 28. “

We have perused the Rule and are in agreement with the

learned Single Judge that by no stretch of imagination, the rule could be

made inapplicable to the case of the writ petitioner-respondent. The rule

clearly postulates that when a Government Servant is reduced to a lower

service grade or post whether for a specified or unspecified period, then

the pay in the lower service is required to be regulated in accordance

with the Fundamental Rules, 28. The interpretation given by the learned

Single Judge is unexceptionable and we accept the same.

For the reasons aforementioned, this appeal fails and the same

is dismissed.

(M.M.KUMAR)
JUDGE

(H.S.BHALLA)
JUDGE
05.02.2009
sanjeev