JUDGMENT
D.D. Sinha, J.
1. Heard learned Counsel for the petitioner and learned Counsel for the respondents.
2. The writ petition is directed against the order dated 9-8-1994 passed by the Chief Executive Officer, Zilla Parishad, Wardha, whereby the punishment of permanently withholding two increments was awarded, as well as order dated 16-10-1997 passed by the Appellate Authority whereby the appeal preferred by the petitioner against the order of punishment came to be dismissed, similarly the order dated 3-12-1997 passed by the Chief Executive Officer, Zilla Parishad, whereby the petitioner was suspended pending inquiry.
3. The learned Counsel for the petitioner contended that the short point which falls for our consideration in the present writ petition is whether the awarding of punishment of withholding of two increments permanently is a major punishment and whether such punishment can be imposed by the Disciplinary Authority without holding departmental enquiry. It is contended that the issue is no more res-integra and is covered by the decision of the Apex Court reported in 7990 Vol. 2 Current Labour Reports 686 (Kulwant Singh Gill v. The State of Punjab). It is contended that in view of the law laid down by the Apex Court, the punishment imposed, being a major punishment, could not have been imposed without conducting inquiry by the Disciplinary Authority. The Counsel for the petitioner states that in the instant case there is no departmental enquiry initiated against the petitioner for the misconduct alleged to have been committed by the petitioner in view of the complaint, of one Rekha Rokde and therefore, the order of awarding punishment is unsustainable in law and needs to be quashed and set aside.
4. Mr. Meghe, learned Counsel for Respondent Nos. 2 and 3 has submitted that the punishment which is awarded to the petitioner is minor punishment as prescribed under Rule 4 of Maharashtra Zilla Parishad (Discipline and Appeal) Rules, 1964, and therefore, it was not necessary for the Chief Executive Officer to initiate regular departmental enquiry and the Disciplinary Authority was entitled to impose minor punishment of withholding of two increments permanently.
5. Mr. P.B. Patil, learned Counsel for the petitioner further contended that though the petitioner was suspended vide order dated 3-12-1997 of the Chief Executive Officer, Zilla Parishad and there was no interim order passed by this Court staying the departmental enquiry even then the Respondent Zilla Parishad did not take any steps to initiate any inquiry pursuant to the order of suspension dated 3-12-1997 till this date. Mr. Patil, learned Counsel for the petitioner further contended that the order of suspension was revoked on 22nd May 1998, and the petitioner is retired on 30th June, 2002. It is, therefore, contended that in the interest of justice the order dated 3-12-1997 may also be quashed and set aside.
6. Mr. Meghe, learned Counsel for the Respondent Nos. 2 and 3 has submitted that since the issue was subjudiced before this Court in the present writ petition, the Zilla Parishad did not initiate any departmental enquiry.
7. We have given our anxious thoughts to the various contentions canvassed by the respective Counsel. In the instant case, it is not in dispute that the punishment of withholding of two increments permanently is imposed by the Disciplinary Authority. At this stage it will be appropriate to consider the law laid down by the Apex Court in the abovereferred judgment, particularly Para 4 which reads thus;
Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But Sub-rule (v) postulates 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 shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reductions will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. 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 mean 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 in perpetuity 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. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab and Ors. ILR 1985 (2) P and H 193 speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules, It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time-scale to pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withheld with or without cumulative effect the Government employee is never reduced to a lower stage of time-scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. 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 without expressly stating so. This preposterous consequences cannot be permeated. 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 of 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 enquiry is per se illegal.
8. Considering the law laid down by the Apex Court, it is evident that in the instant case the punishment of withholding 2 increments permanently is admittedly the punishment which would fall in the category of major punishable and by necessary implication such punishment could not have been imposed by the Zilla Parishad without conducting appropriate departmental enquiry.
9. In view of the law laid down by the Apex Court, the order dated 9-8-1994 cannot be sustained in law. Similarly, the order dated 16-10-1997 suffers from same vice and is also not sustainable in law. Similarly, merely because the punishment of withholding two increments permanently is shown in the category of minor penalty that by itself does to change the complexion and the fiber of the punishment which, unnecessarily, depends upon the nature of punishment awarded. In the present case, in view of the law laid down by the Apex Court and looking to the nature of punishment imposed by the authority, it is a major punishment which is awarded without conducting inquiry and therefore, cannot be sustained in law.
10. Similarly, it appears that the petitioner was suspended vide order dated 3-12-1997 and at the later point of time was also reinstated in service. It is also not in dispute that till this date the respondent Zilla Parishad has not initiated any departmental enquiry against the petitioner. The petitioner is also retired from service. In such situation, in our view, it will not be proper to permit the respondent Zilla Parishad to initiate any enquiry against the petitioner.
11. For the reasons stated hereinabove, the order dated 9-8-1994 as well as 16-10-1997 are hereby quashed and set aside. The respondent Zilla Parishad shall not hold any departmental enquiry against the petitioner for the similar cause for which the petitioner was suspended vide order dated 3-12-1997. Needless to mention that the respondent Zilla Parishad shall process the pension case of the petitioner forthwith and grant pension to the petitioner to which he is legally eligible and entitled.
Rule made absolute in above terms. No order as to cost.
