- (1.) BY this writ petition, the petitioner seeks to challenge the penalty order dated 4-8-1994 whereby three annual grade increments with cumulative effect have been withheld.
(2.) THE facts, in brief, of the case as per the petitioner, are that while working as LDC in Agriculture Marketing Department, the petitioner was served with a charge-sheet dated 30-3-1993 levelling two charges in the matter of overwriting / cutting in gate passes resulting in help to evade market fee and not placing the same on record is in violation of departmental circulars. After issuance of he charge-sheet although inspection was not allowed but reply was submitted, thereafter the enquiry officer was appointed and the enquiry officer without taking any evidence and without further showing the record and hearing the petitioner, submitted his report to the respondent No. 3 - Secretary, Krishi Upaj Mandi Samiti, Alwar. On receipt of enquiry report, the disciplinary authority straightway has passed the order dated 4-8-1994 whereby three annual grade increments with cumulative effect have been withheld. It is stated in the writ petition that withholding of grade increment with cumulative effect is a major penalty, which cannot be imposed unless the procedure under Rule 4 of Appendix-B Discipline & Conduct Rules of the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975 (in short "the Rules of 1975") is followed. In the instant case, the procedure under Rule 6 dealing with other penalties i. e. minor penalties has been followed, therefore, the impugned order is without jurisdiction. The respondents have filed reply to the writ petition and stated therein that principle of natural justice have been complied with and the enquiry was conducted as per rules wherein charges found proved, therefore, writ petition is liable to be dismissed. A rejoinder to the writ petition has also been filed wherein the petitioner has submitted that he was denied the opportunity of hearing, which has resulted in denial of principle of natural justice. Lastly, it was submitted that the impugned order regarding stoppage of three annual grade increments with cumulative effect is clearly in contravention of the judgment of this Court as well as Apex Court. On January 2, 2007, counsel for the respondent sought time to file some additional affidavit with regard to what steps have been taken in the enquiry from the date of issuance of charge- sheet till passing of major penalty order either by enquiry officer or by the disciplinary authority. Counsel for the respondents has placed additional affidavit, but there is no mention of the fact whether the penalty is minor or major. However, counsel has given the dates on which the what steps have been taken either by enquiry officer or by disciplinary authority. There is no dispute about the step, but the issue which is required to be decided is whether the penalty of withholding of grade increment with cumulative effect is major or minor and whether the enquiry was required to be conducted as per Rule 4 or 6 of the Annexure-B Discipline & Conduct Rules of the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975. Submission of counsel for the petitioner is that as per Rule 1 of Discipline and Appeal Rules, five penalties have been prescribed and penalty No. (ii) is withholding of increments or promotion. Penalty No. (iii) is reduction to a lower post or time scale or to a lower sage in a time scale. A bare reading of Rule 1, 3, 4 & 6 would reveal that Rule 3 deals with major misconduct for which a person is liable to be removed or dismissed from service or reduced to a lower post or time scale or to a lower stage in a time scale, if found guilty of the acts of major misconducts specified therein, whereas Rule 6 deals with circumstances of imposing other than penalties specified in item No. (i) & (ii) of Rule 1. Further submission of counsel for the petitioner is that penalty of withholding of annual grade increment with cumulative effect is equivalent to lower stage in time scale as provided under penalty No. (iii) at par with reduction of rank for which the proceeding for removal or dismissal from service etc. given in Rule 4 read with Rule 3 is applicable and Rule 6 is inapplicable. In support of the aforesaid contention, counsel for the petitioner cited Division Bench judgments of this Court in Krishna Dutta Sharma vs. State of Rajasthan RLR 1987 (1) 346 and another judgment of Supreme Court in Kulwant Singh Gill vs. State of Punjab - 1991 Supp (1) SCC 504.
(3.) COUNSEL for the respondents submitted the penalty prescribed under Rule 1 (ii) will cover the case of the petitioner as withholding of increment include withholding of increment with cumulative effect. But he has further submitted that even if it is to be taken under sub-clause (1) (iii) then also the principle of natural justice have been complied with and Rule 3 & 4 are inapplicable. Heard counsel for the parties and gone through the record of the writ petition and further considered rival submissions of the parties. Before proceeding further, it would be worthwhile to quote Rule 1, 3, 4, 6 & 7 of the Appendix B Discipline & Conduct Rules of the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975, which are as follows: 1. The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon an employee of the market committee (i) Censure; (ii) Withholding of increments or promotion; (iii) Reduction to a lower post or time scale or to a lower stage in a time scale; (iv) Removal from the service; (v) Dismissal from the service. 3. Removal/dismissal from service etc.- An employee shall be liable to be removed or dismissed from service or reduced to a lower post or time scale or to a lower stage in a time scale, if found guilty of the following Acts of major misconduct:- (a) conviction by a criminal Court in an offence of Indian Penal Code of by a court-martial; or (b) insolvency or habitual indebtedness; or (c) obtaining employment by concealment of his antecedents, which would have prevented him employment in the market Committee and they been made known before his appointment to the authority; or (d) Misbehaviours with the departmental officers; or (e) In-subordination or disobedience, whether or not in combination with another of any lawful and reasonable order of superiors; or (f) Theft, fraud or dishonesty in connection with the employers business or property or the theft of property of another employee within the premises of the establishment; or (g) Taking of giving bribe or any illegal gratification; or (h) Habitual absence without leave; or (i) Going to an illegal strike or abetting, inciting, instigating or acting in furtherance thereof or resort to hunger strike; or (j) Willful slowing down in a performance of work or abetment or instigation thereof; or (k) Drunkenness, intoxication or indecent behaviour in the premises of the establishment; or (l) Commission of an act subversive of discipline; or (m) Gross neglect of work of habitual negligence; or (n) Willful damage to work in progress or to any property of the establishment; or (o) Gambling within the premises of the establishment; or (p) Taking out of the establishment any article or material belonging to the establishment without permission; or (q) Engaging of private work or trade; or (r) Any act of omission or commission amounting to mis- behaviour in the opinion of the disciplinary authority. 4. Procedure for Removal/dismissal from service etc. When an employee is charged with a misbehaviour, the maximum penalty for which is reduction in rank, removal or dismissal from service the penalty shall be imposed only after an enquiry held in the manner hereinafter provided- (i) Definite charges shall be framed and served in writing on the employee concerned, calling upon him to show cause why he should not be reduced in rank or dismissed or removed from service or punished with lesser penalties specified in these rules. He shall be required to submit within such time as may be specified which shall ordinary be not less than 15 clear days from the date he receives the charge-sheet, a written explanation and also to state whether he desired to be heard in person; (ii) The explanation furnished by the employee on the charge-sheet shall be considered by the officer competent under these rules, to pass an order of reduction in rank or removal or dismissal who, unless he takes steps for holding departmental enquiry, shall thereupon pass such orders as he thinks fit; (ii) If the employee asked to be heard in person or if the officer competent to pass an order of reduction in rank or removal or dismissal considers that the employee should be examined in person, he shall cause a departmental enquiry be held. The employee if he so desires may present his case with the assistance or co-workers. The employee shall be given all reasonable facilities for the conduct of his defence, including the cross-examination of witnesses; (iv) For the purpose of preparation of his defence, the employee shall be permitted to inspect and take extracts from such records, as he may be specify provided that such permission may be refused, for the reasons to be recorded in writing such records are not relevant for the purpose; (v) At such an inquiry a definite charge shall be framed and explained to the employee in respect of each offence which has not been admitted by him, and the evidence in support of as well as his defence, along with any evidence which he may adduce in defence shall be recorded in his presence; (vi) The report of the enquiry and the findings of each of the charge with reasons, thereof shall be prepared; (vii) The report of enquiry shall be considered and finding on each charge shall be recorded; (viii) The employee shall be supplied with the report and the findings and given a notice stating the action proposed to be taken against him and calling upon him to submit within a specified time, such representation as he may wish to make against the proposed action; (ix) Appropriate orders thereon shall be passed taking into consideration the representation so made, if any and communicated to the employee in writing. Provided that in a awarding punishment, the officer competent to pass an order of dismissal or removal or reduction in rank shall take into account, the gravity of the offence the previous record, if any, of the employee and other extenuating or aggravating circumstances that exist; (x) If he refused to accept a charge-sheet, order or other communications served in accordance with these orders and provided that he has been asked to accept the charge-sheet etc. , in the presence of at least two witnesses, he shall be told verbally the time and place at which the enquiry into his alleged mis-conduct is to be held and if he refuses or fails to attend at the time of enquiry shall be concluded exparte. 6. Procedure for imposing other penalties. The penalties specified in item (i) and (ii) of para 1 above may be imposed on any employee in the following circumstances:- (a) Absence without leave without sufficient cause; (b) Unpunctual or irregular attendance; (c) Neglect of work or negligence in performing duties; (d) Breach of any rule of business of the establishment or instructions for the running of the establishment; (e) Committing nuisance on the premises of the establishment. (2) Before an order imposing a penalty specified in item (i) and (ii) of para 1 above in the circumstances, mentioned in sub-clause 1 above is passed against an employee, he shall be informed of the definite offences on account of which it is proposed to impose the penalty and called upon to show cause why that or lesser penalty should not be imposed. The employee shall also be given 15 days time for furnishing his explanation and be allowed reasonable facilities for the preparation of his defence. 7. Withholding of increments. In ordering the withholding of an increment the competent authority shall state the period for which it is withhold and whether the postponement shall have the effect of postponing future increment. ;