Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11632 OF 2018
1. Mrs.Kiran Bhalchandra Bramhane, Asstt. Teacher, Ambernath Nagar Palika, School No.1, Ambernath. ...Petitioner
2. The Administrative Officer, Ambernath Municipal Council, Ambernath, District : Thane.
3. The Chief Executive Officer, Zillha Parishad, Thane.
4. The State of Maharashtra, Through the Secretary, Urban Development
Department & Education Department,, Mantralaya, Mumbai : 400032.
5. The Head Mistress, Ambernath Nagar Palika, School No.1, Ambernath, District : Thane. ...Respondents
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Mr.Akshay Bramhane, Advocate for the Petitioner.
Mr.A.S.Rao, Advocate for Respondent Nos.1 and 2–Ambernath
Municipal Council.
Mr.O.A.Chandurkar, Addl.G.P. a/w Smt.G.R.Raghuwanshi, AGP, for the Respondent No.4-State.
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SANGAR
ORAL JUDGMENT
1. The challenge in this petition under Article 226 of the Constitution of India is to the show cause notice dated 17th March 2018 and the order dated 10th July 2018 issued by the respondent No.1–Chief Executive Officer–Ambernath Municipal Council, Ambernath (“Municipal Council”, for short).
2. The facts of the case in brief are that, the petitioner was appointed as an “Assistant Teacher” in the School run by the Municipal Council with effect from 3rd June 1995. On 17th March 2018, a show cause notice was issued to the petitioner alleging misconduct. The petitioner submitted a detailed explanation by the communication dated 24th March 2018. By the impugned order, in terms of Rule 5(1) of the Maharashtra Civil Service (Discipline and Appeal) Rules, 1979 (henceforth, “MCS Rules”), the punishment of stoppage of one annual increment with permanent effect was imposed on the petitioner.
3. The impugned order has been passed after considering the written explanation of the petitioner. In the impugned order, it is recorded that (a) time and again, the petitioner is responsible for troubling the students; (b) not allowing them to sit in the class-room;
(c) non-cooperative attitude with the School administration; (d) not following the orders of the Headmaster, which amount to breach of the discipline. In the said order, it is stated that the petitioner is committing such acts time and again which is affecting the discipline of the School.
4. Shri.Akshay Bramhane, learned counsel for the petitioner submitted that stoppage of one annual increment with permanent effect is a major penalty. It is submitted that such a punishment cannot be imposed without holding a regular departmental inquiry as contemplated by the provisions of Rule 8 of the MCS Rules which prescribes procedure for imposing major penalty.
5. Shri.Rao, learned counsel for respondent Nos.[1] and 2–Municipal Council on the other hand supported the impugned order. In the Affidavit-in-Reply, it is stated that the petitioner was misbehaving and unnecessarily harassing the students. It is submitted that there is no need to conduct an inquiry if the punishment is minor in nature. It is submitted that under Section 79 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (“the Maharashtra Municipalities Act, 1965”, for short), the Chief Officer has been empowered to impose minor penalties vide proviso to Subsection (2) as detailed in Section 79(1), (i), (ii), (iv), (v) and (vi) of which Section 79(1)(ii) says “withholding of increments or promotion including stoppage at an efficiency bar”.
6. Heard learned counsel for the parties. Perused the memo of the Writ Petition, relevant and the Affidavit-in-Reply.
7. From the Affidavit-in-Reply and from the submissions made on behalf of the learned counsel for the Respondents, it is seen that the Chief Officer is empowered to impose minor penalties under the provisions of Sub-section 2 of Section 79 of the Maharashtra Municipalities Act, 1965. In the Affidavit-in-Reply, it is stated that though the misconduct alleged was of serious nature, however, with a view to give an opportunity to the petitioner, a lenient view has been taken and accordingly, a minor punishment has been imposed. The Chief Officer is competent to impose minor penalty under Section 79 of the Maharashtra Municipalities Act, 1965.
8. Thus, it is apparent that the Chief Officer was inclined to impose a minor punishment and according to him, the punishment imposed is a minor one. The question is whether the penalty as imposed by the Municipal Council can be said to be a minor penalty. The penalty imposed is stoppage of one annual increment with cumulative effect. The decision of the Hon’ble Supreme Court in Kulwant Singh Gill V/s. State of Punjab[1] is significant in the context of the present case. The question before the Hon’ble Supreme Court was whether stoppage of two increments with cumulative effect is a major penalty? Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 were under consideration. The Punjab Civil Services (Punishment and Appeal) Rules, 1970 are similar to the provisions of Maharashtra Civil Service (Discipline and Appeal) Rules, 1979.
9. Under Rule 5 of the MCS Rules, the following penalties can be imposed. The relevant part of the said Rule reads thus:- “5. Penalties.—(1) Without prejudice to the provisions of any law for the time being in force, the following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:— Minor penalties—
(i) Censure;
(ii) Withholding of his promotion;
(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to Government, by negligence or breach of orders; (iii-a) Reduction to lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension; 1 MANU/SC/0658/1991
(iv) Withholding of increments of pay;
(v) save as provided for in clause (iii-a), 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 servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will not have the effect of postponing the future increments of his pay;
(vi) Reduction to lower time-scale of pay, grade, post or service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period,— (a) the period of reduction to time-scale of pay, grade, post or service shall operate to future increments of his pay, and if so, to what extent; and, (b) the Government servant shall regain his original seniority in the higher time-scale of pay, grade, post or service;”
10. Withholding of increments of pay simpliciter without any hedge over it undoubtedly is a minor penalty within the meaning of Rule 5(iv) of the MSC Rules. Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 is pari materia with the provisions of Rule 5 of the MSC Rules. The Hon’ble Supreme Court while considering Rule 5 of the Punjab Civil Services Rules in Kulwant Singh Gill (supra), in paragraph No.3 has held thus:- “3. 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 reduction 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 timescale 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 means 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 timescale 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 Iris 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. I.L.R.1985 (2) P&H. 193 P.C. Jain. A.C.J. 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 of 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 with expressly stating so. This preposterous consequences cannot be permitted to 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 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.” [Emphasis supplied]
11. The decision in Kulwant Singh Gill is a complete answer to the controversy involved in this petition. The only difference is the present is a case of stoppage of one increment with cumulative effect, whereas in Kulwant Singh Gill (supra), it was stoppage of two increments with cumulative effect. We borrow the reasonings of Their Lordships while holding that the penalty is a major one. Therefore, we have no hesitation in concluding that Rule 5(iv) of the MSC Rules empowers the Discipline Authority to impose penalty of withholding one increment of pay with cumulative effect after holding an inquiry following the prescribed procedure.
12. Learned counsel for the Municipal Council made an attempt to submit that the Municipal Council is not bound by the provisions of the MSC Rules as the punishment is prescribed under the provisions of Section 79 of the Maharashtra Municipalities Act, 1965. Section 79 reads thus:- “79. Punishment of officers and servants (1) Without prejudice to the provisions of any law for the time being in force and subject to the provisions of Section 75A and the rules made thereunder, the following penalties may, for good reasons, be imposed upon any officer or servant of the Council:—
(i) Censure;
(ii) Withholding of increments or promotion including stoppage at an efficiency bar;
(iii) Reduction to a lower post on a fixed pay or a timescale or to a lower stage in time-scale;
(iv) Recovery from his pay of the whole or part of any pecuniary loss caused to the Council by negligence or breach of orders;
(v) Fine;
(vi) Suspension;
(vii) Removal from the service, which does not disqualify from future employment;
(viii) Dismissal from the service, which ordinarily disqualifies from future employment.
13. We find that Section 79 of the Act only provides for the competency of the Chief Officer of the Municipal Council to impose the punishment. A bare reading of the relevant provisions and the impugned order indicate that the procedure as contemplated under the MCS Rules has to be followed before imposing a minor or major penalty and even the competent Authority has so understood it.
14. We, therefore, have no hesitation in holding that in the present facts, the stoppage of one increment with cumulative effect amounts to a major penalty. The impugned order therefore calls for interference.
15. The competent Authority was inclined to impose a minor penalty on the petitioner. Even learned counsel for the Council argued that punishment imposed is a minor penalty. The competent Authority did not find the explanation of the petitioner to the show cause notice satisfactory. The penalty is imposed after considering the issuance of the show cause notice, considering the explanation and following the prescribed procedure by the MCS Rules. The CEO of the Municipal Council was of the opinion that the penalty imposed is minor, but factually on a misconception imposed a major penalty.
16. Though learned counsel for the petitioner submitted that upon setting aside the impugned order, the Petitioner is ready to face major penalty proceedings, we are not inclined to accept this submission. The Chief Officer has upon considering the explanation formed an opinion that leniency should be shown in the case of the Petitioner though the charges are serious and therefore, formed an opinion that minor penalty should be imposed. The punishment ultimately imposed that of stoppage of increment with permanent effect has to be regarded as a major penalty. The petitioner is on the verge of retirement. One year of service is left as per the submission of the learned counsel for the petitioner.
17. In such view of the matter, though we are not inclined to interfere with the impugned order, we propose to modify the penalty to withholding of increment of pay simpliciter for one year without cumulative effect. The penalty is modified to the aforesaid extent. The penalty shall not operate as a stigma against the petitioner.
18. The petition is accordingly partly allowed in the aforesaid terms.
19. Pending applications, if any, also stand disposed of. (S. M. MODAK, J.) (M. S. KARNIK, J.)