KAN SINGH, J. - (1.) THE second appeal before me is by the Union of India and is directed against the appellate judgment and decree of the learned Additional Civil Judge, Ajmer dated 28-8-68 and raises a question about the validity of certain punishments imposed by the authorities of the Western Railway on the respondent B. S. Misra who was Clerk in Grade II and was officiating in Grade I at the relevant time. His case was briefly this : On 11-7-60 the was officiating as a Clerk Grade I in the time scale of Rs. 80-5-120-EB-8-200-10-220 (P. S.) and was posted in the Office of the Divisional Accounts Officer, Western Railway, Jaipur. He was under the control of the Deputy Chief Accounts Officer (T. A.) Western Railway, Ajmer. As the plaintiff-respondent was arrested by the police in connection with the general strike by the staff of the Western Railway, he was placed under suspension. THE plaintiff was prosecuted under the Essential Services Maintenance Ordinance No. 1 of 1960. However, the prosecution was withdrawn and in consequence the plaintiff was acquitted by the criminal court on 17-8-60. THE grievance of the plaintiff was that inspite of his acquittal by the criminal court he was not permitted to resume his duty. During the period of his suspension the plaintiff was reverted with effect from 18-7-60 from Clerk Grade I as Clerk Grade II which was his substantive grade in the scale of Rs. 60-3-81-EB-4-125-5-130. THE challenge against this order is that inasmuch as Sarva Shri Revosant Dasani and Chandkaran Rathi as also other persons junior to the plaintiff in the substantive grade were allowed to officiate in Grate I, the plaintiff was discriminated against and consequently the plaintiff's reversion was hit by Art. 16 of the Constitution. THE further grievance of the plaintiff was that inspite of his acquittal the Deputy Chief Accounts Officer (T. A.) instituted disciplinary proceedings against him. THE plaintiff was served with a charge sheet and he was called upon to show cause why he be not dismissed from service or awarded some other minor penalty. Eventually on 10-4-61 the Deputy Chief Accounts Officer (T. A.) imposed the punishment of stoppage of two years increments of the plaintiff with cumulative effect. THE third grievance of the plaintiff was that he was served with a charge sheet for not joining duty at Ajmer but he continued to report himself for duty at Workshop Accounts Office, Jaipur. A penalty of forfeiture of passes was imposed on the plaintiff on 28-6-62 by the Deputy Chief Accounts Officer (T. A.) Ajmer.
(2.) THE plaintiff went up in appeal to the Chief Accounts Officer and Financial Advisor at Bombay. THE last mentioned officer enhanced that penalty to that of stoppage of plaintiff's increments for one year without cumulative effect. The last two orders of punishment were challenged by the plaintiff on a number of grounds as mentioned in paras 10 and 11 of the plaint respectively. The plaintiff prayed for a declaration that he continued in the Clerk Grade I and was entitled to all his annual increments, unaffected by the impugned orders passed by the Railway Authorities. He further prayed for a direction to the defendant to settle his dues in accordance with the declaration aforesaid. The suit was contested by the Union of India. It was admitted that the plaintiff was arrested, but it was denied that the impugned orders were illegal or irregular as alleged. It was submitted that the plaintiff was reverted to his substantive post in the ordinary course and no discrimination was practised against him. As regards the penalties it was submitted that Art. 311 of the Constitution or Rule 1707 of the Railway Establishment Code were not attracted. Regarding these it was submitted that the orders were legal. Some other legal pleas were also raised. The learned Munsif, Ajmer City, who tried the suit, framed a number of issues. He held that the order of the plaintiff's reversion from Grade I to Grade II was not illegal, but the other two orders were illegal. In the result, the learned Munsif refused the declaration regarding the order of reversion of the plaintiff from Grade I to Grade II, but regarding the other two orders he declared that they were illegal and ineffective and that the plaintiff was entitled to his salary for the period 17-10-61 to 12-8-62. Aggrieved by the judgment and decree of the learned Munsif the Union of India went up in appeal to the court of the Additional Civil Judge, Ajmer. The plaintiff filed the cross-objection against the judgment and decree of the trial court regarding the refusal of the relief about the order of reversion. The learned Additional Civil Judge, however, dismissed the appeal as well as the cross-objection. It is in these circumstance that the Union of India has come up in second appeal to this Court.
(3.) I may deal with the various contentions raised by learned counsel for the Union in respect of the two orders for stoppage of increments in the first instance. It will be convenient to read the relevant orders at this point. Ex. A/32 dated 10-4-61 is the order which reads as under : 1. You are hereby informed that in accordance with the orders passed by the Dy. CAO (TA) Ajmer the following penalty has been awarded to you : - Stoppage of increments for two years, with cumulative effect (This has reference to your last defence dt. 8th March 1961 in reply to charge sheet No. JP/ ADM/e-1049/45 of 22-8-60) You are required to acknowledge receipt of this Notice on the form subjoined. The plaintiff went up in appeal to the Chief Accounts Officer and Financial Advisor at Bombay. The order passed by him is Ex. 4/49 and is dated 25-8-62. This order runs as follows : With reference to your mercy appeal dated 7-8-62 to the FA & CAO, it is informed that the FA & CAO is pleased to reduce your penalty to "withholding of one increment for one year without cumulative effect. " Necessary action to sanction the increment as due and the payment of arrears is being taken. Sd/- E. K. Namboori, 25-8-1962 For Dy. CAO (TA)-AII. " Both the courts have held these orders to be invalid on a number of grounds; the main ground being that on account of the acquittal of the plaintiff by the criminal court the disciplinary proceedings could not have been initiated without the prior approval of the Head of the Department. It is not disputed that in terms of Rule 1707 (11) of the Discipline and Appeal Rules for the non-gazetted staff the prior approval of the Head of the Department was not taken. I may read the Rule : "r. 1707 (11 ). Where it is considered that departmental action should be taken against an employee for an offence for which he has been prosecuted in court of law and acquitted, the Head of the Department's prior approval should be taken before action is taken. " Both the courts have held that as the prior approval of the Head of the Department was not taken the proceedings stood vitiated. Learned counsel for the Union has raised a threefold contention in challenging the conclusion reached by the courts below. (1) In the first place, learned counsel submitted that the Rule was directory and not mandatory inasmuch as the word "should" has been used which means what the authorities may do and it will not have the force of a mandate. (2) In the second place, the learned counsel submitted that the plaintiff had filed an appeal against the order of the Deputy Chief Accounts Officer (T. A) Ajmer to the Chief Accounts Officer and Financial Advisor that he had withdrawn that appeal and converted the same into a mercy petition and the Chief Accounts Officer had accordingly reduced the penalty from stoppage of two increments to that of stoppage of one increment without cumulative effect. Learned counsel, therefore, contends that the plaintiff should be taken to have waived his objection regarding the non-taking of the prior approval of the Head of Department. (3) Lastly, it was argued that this Rule was applicable to proceedings which result in imposition of major penalties like that of dismissal or removal and is not attracted where only a minor penalty like that of stoppage of increment is imposed. ;