Partly allowed

Kishore Singh v. State of U.P. and 4 Others

Allahabad HC16 Dec 2019WRIA/64304/2015

Case brief

AI extract

What is this about?

Writ petition challenging a departmental punishment order imposing reduction in rank without specifying the time period. The court held the order violated Fundamental Rule 29(1) and directed the appellate authority to specify the duration and increment implications.

What did the court decide?

Directed the Appellate Authority to specify the period for which the reduction to a lower stage in the time scale shall be effective and whether it will postpone future increments.

Kishore Singh Vs State of U.P. and 4 Others — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 64304 of 2015 Petitioner :- Kishore Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- C.S.C.

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra, J.

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Sole petitioner Kishore Singh has filed writ petition under Article 226 of Constitution of India with a prayer to issue a writ of certiorari to quash order dated 01.02.2011 (Annexure-8 to writ petition) passed by District Magistrate, Mainpuri imposing punishment of reduction in rank by placing petitioner at bottom of pay scale of Revenue Assistant; Appellate Order dated 16.08.2011 passed by Commissioner, Agra Region, Agra rejecting petitioner's appeal and judgment and order dated 14.07.2015 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as “Tribunal”) dismissing petitioner's Claim Petition No.1956 of 2011.

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Petitioner was employed/appointed as Class IV employee i.e. TelePrinter Dak Runner in 1980 by Collector, Mainpuri. He was terminated by order dated 17.07.1982 on the ground that he was employed in a criminal case in which he was acquitted. Order of termination dated 17.07.1982 was challenged by petitioner before Tribunal in Claim Petition No.286/ (I)/1987, which was allowed vide judgment and order dated 28.08.1992 and termination order dated 17.07.1982 was set aside. Thereafter, another order rejecting his representation and stating that petitioner shall not be taken back in service passed on 07.01.1983, was also set aside by Tribunal. Tribunal further held that petitioner shall be deemed to be in continuous service and would be entitled for payment of full wages from 07.01.1983. Pursuant thereto by order dated 28.04.1992, petitioner was restored in service against a vacant post of Rajaswa Sewak(i.e. Revenue Assistant). While working as Rajaswa Sewak he received charge sheet

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dated 01.05.2008 containing two charges and also mentioning evidence relied in support of charges, which read as under :

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^^vkids fo:) fuEufyf[kr vkjksi yxk;s tkrs gSa%&

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1- vkius ckdhnkj jke fuokl iq= Jh jkelusgh yky fu0 uxyk f'kodju ¼uxyk cyh½ rglhy djgy dks tks gokykr esa cdk;k /kujkf'k 198076-00 :0 esa fu:) Fkk dks fnukad 01-07-07 dh jkf= esa jktLo gokykr ls vdkj.k ckgj fudkyk tks nhoky dwndj Hkkx x;kA bl dR; esa vkidk ckdhnkj ls nqjfHklfU/k djuk ,oa drZO;ksa ds izfr ykijokgh dk |ksrd gSA bl dR; ds fy, vki nks"kh gSaA bl vkjksi ds lEcU/k esa fuEufyf[kr lk{; iBuh; gSa%&

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1- mi ftykf/kdkjh djgy dh vk[;k fnukad 11-07-2007

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2- rglhynkj djgy dh vk[;k fnukad 02-07-2007

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3- izFke lwpuk fjiksVZ Fkkuk djgy fnukad 09-07-07

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2- vki us ckdhnkj dks ljdkjh gokykr ls Hkxkdj olwyh tSls egRoiw.kZ dk;Z

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esa vojks/k mRiUu fd;k gS] tks deZpkjh vkpj.k fu;ekoyh ds fo:) gS rFkk jktdh; dk;Z esa vojks/k gSA vkjksi gsrq iBuh; lk{; fuEu gSa%&

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1- mi ftykf/kdkjh djgy dh vk[;k fnukad 11-07-2007

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2- rglhynkj djgy dh vk[;k fnukad 02-07-2007

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3- izFke lwpuk fjiksVZ Fkkuk djgy fnukad 09-07-07**

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“You are charged as under :

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1. In the night of 01.07.2007 you without any valid reasons took out from Revenue Lock-up Debtor Ram Niwa son of Ram Sanehi Lal resident of Nagla Shivkaran (Nagla Bali), Tehsil-Karhal, lodged therein for an outstanding amount of Rs.198076/-, who jumped across the wall and ran away. This act of yours is reflective of conspiracy with the debtor as also negligence towards discharge of duties. For this act your are guilty. With regard to this charge, the following evidences are worth reading :

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1. Report dated 11.07.2007 of the Sub Divisional Magistrate, Karhal.

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2. Report dated 02.07.2007 of the Tehsildar, Karhal.

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3. First Information Report dated 09.07.2007, P.S.Karhal.

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2. You have caused hindrance in an important work such as recovery by way of facilitating the debtor to escape, which is contrary to the Employees Conduct Rules and is obstructive to the government work. Evidences worth reading with regard to the charge as under :

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1. Report dated 11.07.2007 of the Sub Divisional Magistrate,

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Karhal

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2. Report dated 02.07.2007 of the Tehsildar, Karhal.

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3. First Information Report dated 09.07.2007, P.S.Karhal”

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(English translation by Court)

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Denying the charges, petitioner submitted reply dated 21.05.2008. Departmental enquiry was conducted by Tehsildar, Mainpuri and he submitted enquiry report dated 29.11.2008 holding both charges proved. Disciplinary Authority i.e. District Magistrate, Mainpuri issued a show cause notice dated 21.04.2010 appending copy of enquiry report giving opportunity to petitioner to submit his representation against findings of Enquiry Officr. Petitioner submitted his reply/representation against enquiry report vide letter dated 22.09.2010. Thereafter, punishment order dated 01.02.2011 was passed imposing punishment of reduction in pay by placing petitioner at the lowest of scale of Revenue Assistant. Petitioner preferred an appeal before Commissioner, Agra Region, Agra vide memo of appeal dated 21.04.2011. Appellate Authority, however, dismissed appeal vide order dated 16.08.2001 (Annexure 10 to this petition). Petitioner then preferred Claim Petition No.1956 of 2011 challenging punishment order dated 01.02.2011 and appellate order dated 16.08.2011 but claim petition has been dismissed by Tribunal vide impugned judgment and order dated 14.07.2015, hence the present writ petition.

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Sri Kshitij Shailendra, learned counsel for petitioner initially sought to argue that enquiry has not been conducted validly and petitioner has been denied adequate opportunity of defence. But finding serious difficulty in canvassing this aspect of the matter, confined his challenge to impugned order of punishment on the ground that reduction in pay without description of time period, is patently illegal. He placed reliance on Fundamental Rule 29(2) as amended by Fundamental (Amendment) Rules, 2013, which reads as under :

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"(2) If a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower scale, the authority ordering the reduction shall specify –

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(a) the period for which the reduction shall be effective; and

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(b) whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent.”

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He contended that when punishment of reduction in pay is imposed, subsequent increments cannot be denied as it is a different punishment, and therefore, a permanent reduction in pay scale without specification of time cannot be imposed as punishment. In support of submission, he also placed reliance on Supreme Court authorities in South Bengal State Transport Corporation vs. Ashok Kumar Ghosh and others, (2010)11 SCC 71 and State of Andhra Pradesh and others vs. Ch. Gandhi, (2013) 5 SCC 111 .

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Learned Standing Counsel, on the contrary, submitted that judgment of Tribunal warrants no interference and Fundamental Rule 29 as relied by petitioner is subsequent amendment, inasmuch as, punishment in question was imposed on 01.02.2011, and therefore, aforesaid amendment has no application to the present case.

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I have heard Sri Kshitij Shailendra, learned counsel for petitioner and learned Standing Counsel for respondent and perused the record.

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Fundamental Rule 29 before its amendment in 2013 read as under :

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“ 29.(1) If a Government servant is reduced as a measure of penalty to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and, if so, to what extent.

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(2) If a Government servant is reduced as a measure of penalty to a lower grade or post the authority ordering the reduction may or may not specify the period for which the reduction shall be effective; but where the period is specified, that authority shall also state whether on restoration the period of reduction shall operate to postpone future increments and is so, to what extent.”

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Sub-rule 1 deals when a government servant is reduced as a measure of penalty to lower stage in his time-scale while sub-rule 2 deals with reduction as measure of penalty to lower grade or post. When a person is reduced as measure penalty to lower grade meaning thereby his

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pay scale stand changed to inferior grade and post, amounts to reduction in rank but when a person is reduced to lower stage in his time scale it brings mere change in the stage and time scale is reduced.

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In the present case, petitioner was imposed punishment reducing in lowest stage in time scale applicable, therefore, punishment in question is clearly covered by Fundamental Rule 29 (1) and if that be so, it is evident from Fundamental Rule 29 (1) that punishing authority is under an obligation to specify the period for which reduction in lower stage in time scale would be effective and operative and further whether such reduction of such period will be having its permanent effect i.e. with cumulative effect or it is for the period of punishment as provided.

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In the present case, punishment imposed by Disciplinary Authority confirmed by Appellate Authority as well as Tribunal, is not consistent with Fundamental Rule 29 (1) and neither period has been prescribed nor it has been provided whether effect will be permanent or not. To this extent the punishment imposed upon petitioner is not consistent with Fundamental Rules 29 (1), hence, I partly allow this writ petition directing respondent-Appellate Authority, since, order of punishment has merged with order of Appellate Authority, to specify the period for which reduction to lower stage in time scale shall be effective and whether it will postpone future increments or not. Order as directed above shall be passed by Appellate Authority within one month from the date of receipt of a certified copy of this order. Order of punishment shall stand amended accordingly and will be operative for such period as directed by Appellate Authority under this order.

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There shall be no order as to costs.

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Order Date : 16.12.2019 Manish Himwan

Kishore Singh v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Kishore Singh v. State of U.P. and 4 Others

Case brief

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What did the court decide?

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