High Court
Case Details
WP(C) 2889/2004 BEFORE HON’BLE MR JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER (ORAL)
Decision
As the issue raised in both the writ petitions is the same, WP(C) Nos. 2 889/2004 and 2890/2004 were heard together and are being disposed of by this com mon order. 2. 3. A brief dilation on facts is considered necessary. Petitioner in WP(C) No. 2889/2004 was serving as Assistant (Accounts) in the Nagaon Paper Mill of Hindustan Paper Corporation Ltd. at the relevant point of time. On 5.7.1990, he was placed under suspension pending drawal of departme ntal proceeding. Thereafter, a departmental proceeding was instituted against th e said petitioner on various charges. Departmental enquiry was conducted. The di sciplinary authority agreed with the findings of the enquiry officer and imposed penalty of reduction to a lower grade vide the order dated 30.6.1995. On reduct ion to a lower grade, petitioner was designated as Junior Assistant (Accounts). It was further declared that petitioner’s seniority would commence from the date he assumed duties as Junior Assistant (Accounts). Though the suspension order w as revoked, it was ordered that the period of suspension would not be treated as on duty and he would not be entitled to draw any salary / wages, allowances, in crements or any benefit for the said period except the subsistence allowance alr eady drawn by him. Though he filed appeal, the order of the disciplinary authori ty was maintained. Petitioner then filed Civil Rule No. 4358/1995. Petitioner in WP(C) No. 2890/2004 was serving in the rank of Executive i 4. n the Nagaon Paper Mill of Hindustan Paper Corporation Ltd. when he was placed u nder suspension on 5.7.1990 pending drawal of departmental proceeding. Thereafte r, departmental proceeding was drawn up against the petitioner in the course of which, departmental enquiry was held. Report of the enquiry officer was accepted by the disciplinary authority and penalty order dated 30.6.1995 was passed impo sing on him the penalty of reduction to a lower grade. On such reduction, petiti oner was designated as Senior Accountant and it was declared that his seniority in the said grade would commence afresh on assumption of duties by him in the po st of Senior Accountant. Though his suspension order was revoked, it was ordered that the period of suspension would not be treated as on duty and the petitione r would not be entitled to draw any salary / wages, allowances, increments etc. for the said period except the subsistence allowance already drawn by him. Thoug h he had filed appeal before the appellate authority against the penalty order, he had to approach this Court since no order was passed by the appellate authori ty. Following order of this Court, appellate authority considered the appeal but rejected the same. Aggrieved, he filed a writ petition before this Court which was registered as Civil Rule No. 350/1997. 5. Both the writ petitions were dismissed by a Single Bench of this Court v ide the common order dated 18.7.2001. Thereafter, both the petitioners filed wri t appeals, which were registered as Writ Appeal Nos. 339/2001 and 340/2001. By a common judgment and order dated 26.6.2003, a Division Bench of this Court did n ot find any error in the findings arrived at by the enquiry officer but interfer ed with the penalty imposed. The penalty of reduction to a lower grade was set a side and the respondents were directed to pass fresh orders imposing on the peti tioners the penalty of reduction to a lower stage in their own time scale. The t wo writ appeals were accordingly disposed of. 6. Thereafter, the disciplinary authority passed separate but identical ord ers dated 19.9.2003 imposing fresh penalty. In case of petitioner of WP(C) No. 2 889/2004, he was restored to the post of Assistant (Accounts) in the pay scale o f Rs. 1410-50-1910-60-2330/- (Pre-Revised) w.e.f. 30.6.1995 and was awarded the major penalty of reduction of his pay by three stages from Rs. 1660/- to Rs. 151 0/- in the time scale of pay of Rs. 1410-50-1910-60-2330/- for a period of 3 yea rs w.e.f. 30.6.1995 to 29.6.1998. It was clarified that the petitioner will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will not have the effect of postponing future increments of pay. Likewise, in the case of petitioner of WP(C) No. 2890/2004, he was resto red to the post of Executive (Accounts) in the pay scale of Rs. 2400-120-4320 (P re-Revised) w.e.f. 30.6.1995 and awarded the major penalty of reduction of his p ay by 3 stages from Rs. 3840/- to 3480/- in the time scale of pay of Rs. 2400-12 0-4320/- for a period of 3 years w.e.f. 30.6.1995 to 29.6.1998. It was clarified that petitioner will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will not have the effect of pos tponing his future increments of pay. 7. Both the petitioners submitted representations and legal notices to the respondents with the grievance that during the period of suspension from 5.7.199 0 to 30.6.1995, the petitioners were denied 6 annual increments. By the fresh pe nalty order, reduction of pay by 3 stages effective from 30.6.1995 to 29.6.1998 having been ordered, the petitioners would stand to lose 9 annual increments, wh ich would be beyond the penalty imposed. Respondents informed the petitioners by separate letters dated 27.1.2004 that the prayer made by them could not be cons idered as they are not entitled to any salary / wages and allowances except subs istence allowance already drawn by them during the period of suspension. Aggrieved, petitioners have preferred the present two writ petitions. 8. 9. Petitioners have contended that the respondents have sought to impose a penalty on them which is beyond the penalty ordered by this Court in the previou s round of litigation. Court had directed reduction of pay by 3 stages in their own time scale of pay. But by the impugned penalty, the respondents have given e ffect to the penalty from 30.6.1995 while denying any such increment for the per iod from 5.7.1990 to 30.6.1995 when the petitioners were under suspension, there by making the petitioners lose a total of 9 annual increments as against 3 direc ted by this Court. 10. Petitioners have also filed additional affidavits to place on record tha t there was a revision of pay in their respective pay scales w.e.f. 1.1.1992 but the petitioners were paid subsistence allowance on the pre-revised pay scales. The subsistence allowance from 1.1.1992 to 30.6.1995 should have been paid as pe r the revised pay scale. 11. In both the writ petitions, respondents have filed identical affidavits. Stand taken is that the Division Bench of this Court did not interfere with the findings arrived by the enquiry officer but interfered with the penalty imposed by modifying the original penalty of reduction to a lower grade to reduction to a lower stage in the same time scale. In terms of the order of this Court, fres h penalty orders dated 19.9.2003 were passed. While justifying the order of pena lty, it is contended that petitioners are not entitled to any salary / wages and other allowances during the period from 5.7.1990 to 30.6.1995 when they were un der suspension. Contention of the petitioners that the period of suspension shou ld be treated as on duty is untenable and, therefore, question of granting any i ncrement or financial benefit during the period of suspension does not arise. 12. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. N. Deka , learned counsel for the petitioners and Mrs. M. Hazarika, learned senior couns el assisted by Mr. J. Roy, learned counsel for the respondents. 13. Mr. Choudhury, learned senior counsel appearing for the petitioners have referred to various provisions of the Standing Orders framed in terms of the In dustrial Employment (Standing Orders) Act, 1946 as well as the Hindustan Paper C orporation Conduct, Discipline and Appeal Rules, to contend that the reckonable date for imposition of the penalty should be 5.7.1990 when the petitioners were placed under suspension and not 30.6.1995 which was the date of imposition of th e previous penalty which was interfered with by the High Court. He submits that this Court had directed imposition of penalty of reduction to a lower stage in t he same time scale in terms of Rule 23 (e). The respondents had thereafter, impo sed the penalty of reduction of pay by 3 stages in the same time scale giving ef fect to the said penalty from 30.6.1995 to 29.6.1998. Since the respondents had clarified that petitioners will not earn increments of pay during the period of reduction, it is clear that the annual increments to pay which became due to the petitioners during the period of suspension cannot be denied to them. He submit s that during the period of suspension, 6 annual increments became due to the pe titioners. Therefore, petitioners have been denied a total of 9 annual increment s to pay i.e. 6 during the suspension period and 3 during the period of reductio n of pay, which is beyond the penalty imposed. He submits that while imposing pe nalty, the disciplinary authority has to strictly follow the rules and there can be no discretion while imposing penalty. Penalty should be strictly construed, he contends. In support of his submissions, Mr. Choudhury has placed reliance on the following decisions of the Hon’ble Supreme court:-