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Thursday, August 1, 2013

Service matter - whether once a charge-sheet has been issued for imposition of a major penalty under Regulation 7 of the Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990 [for short “the Regulations 1990”], is it obligatory on the part of the Disciplinary Authority to conduct a full fledged departmental inquiry even if, after considering the reply of the delinquent, the authority decides to impose a minor penalty, for which no departmental inquiry is provided under the Regulations.= Sub-regulation 8 of Regulation 7, which reads as follows: “7(8). Where an employee has been charge-sheeted under this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as laid down in Regulation-4 (vi to x) is called for, it may dispense with the holding of enquiry and inflict straight-away any of the minor penalties as laid down in Clause (i) to (v) of the ibid Regulation by a speaking order.” 12. Above referred regulations, especially Regulation 7(8) clearly indicates that the competent authority has got the power to dispense with the procedure for holding a departmental inquiry, even though it had contemplated major penalty proceedings, on being satisfied with the reply submitted by the delinquent officer. In such a case, it can always follow the procedure for imposing minor penalty. Minor penalty, as per the Regulation, can be inflicted without holding any departmental inquiry, by giving only a show-cause-notice and a reasonable opportunity to make a representation to the show-cause-notice. Personal hearing can also be afforded and also can be dispensed with by a speaking order.= The delinquent officer was given an opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated. Learned District Judge as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to herein before. Consequently, the appeal is allowed and the judgment of the learned District Judge as well as that of the High Court is set aside. 15. Learned counsel for the respondent submits that, by virtue of the punishment imposed, he has not been given his due promotion. We are of the view that if imposition of a minor penalty is not a bar in granting promotion to the respondent, due promotion be granted to him in accordance with the Rules and Regulations applicable to him.

                                      published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40611       
                REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 6150  OF 2013
                  [Arising out of SLP (C) No. 5230 of 2013]


D.H.B.V.N.L. Vidyut Nagar, Hisar & Others                .. Appellants
                                   Versus
Yashvir Singh Gulia                                      .. Respondent

                               J U D G M E N T

K. S. Radhakrishnan, J.

      Leave granted.

2.    The question that arises for consideration in this appeal  is
whether
once a charge-sheet has been issued for imposition of a major penalty  under Regulation 7 of the Haryana State Electricity Board Employees (Punishment  & Appeal)  Regulations,  1990  [for  short  “the  Regulations  1990”],  is  it obligatory on the part of the  Disciplinary  Authority  to  conduct  a  full
fledged departmental inquiry even if, after considering  the  reply of  the delinquent, the authority decides to impose a minor penalty,  for  which  no departmental inquiry is provided under the Regulations.

3.    The respondent herein who was working as  an  Assistant  Law  Officer,
was served with a charge-sheet on 14.8.1992 alleging that  he  had  exceeded
his  power  by  directing  implementation  of  an  arbitration  award  dated
10.9.1991  without   getting   approval   of   the   superior   Authorities.
Respondent  filed  three  replies  to  the  charge-sheet  and  the   replies
submitted by the respondent were considered by the Board and it was  decided
to impose only a minor penalty vide its order dated 4.7.1994, the  operative
portion of which reads as follows:
                         “HARYANA STATE ELECY. BOARD
                 OFFICE ORDER NO. 144/COMF-2407 DATED 4.7.94
      Having considered the  reply  submitted  by  Sh.  Y.S.  Gulia,  A.L.O.
      through his letters dated 20.1.93, 24.1.94  &  dated  27.4.94  to  the
      charge sheet served upon him vide this office Memo No.  Ch-4/Conf-2497
      (IB-2(1010) dt. 14.8.92 in light of the comments given by L.B.,  BSEB,
      Punchkula through his note dated 6.6.94 and record/material  available
      with this office, it has  been  decided  to  stop  his  one  increment
      without  future  effect  as  Sh.  Y.S.  Gulia,  ALO  has  been   found
      responsible for not seeking the  approval  of  L.R.,  HSEB,  Panchkula
      before conveying  the  advice  to  Xen(OP)  Divn.,  HSEB,  Gurgaon  to
      implement the award dt. 30.9.91 amount to Rs.26 lacs of the Arbitrator
      given in M/s. Kegg Farm.


            As such one increment of Sh. Y.S. Gulia, Asstt.  Law  is  hereby
      stopped without future effect.


            This issues with the approval of MA&PF, HSEB, Panchkula.”

4.    Respondent preferred an appeal before the Appellate Authority  of  the
Board.  The same was, however, rejected by the Appellate Authority vide  its
order dated 22.5.1995.

5.    Respondent, after a lapse of 10 years, filed a Civil Suit No.  157  of
2005 before the Civil Judge (JD), Gurgaon for a declaration that  the  order
dated 4.7.1994 and the Appellate  Authority’s  order  dated  22.5.1995  were
illegal and void and also for mandatory injunction directing  the  Board  to
refund the amount of  one  increment  deducted  from  his  salary  with  18%
interest.   The Civil Judge dismissed  the  suit  vide  his  judgment  dated
29.1.2009.

6.    Aggrieved by the same, respondent preferred an appeal being  C.A.  No.
34 of 2009 before the District Judge, Gurgaon.  It was contended before  the
learned District Judge that the Board had committed a  gross  illegality  in
not holding a regular departmental  inquiry  after  having  initiated  major
penalty proceeding under  Regulation  7  of  the  Regulations  1990.    This
argument was accepted by the learned  District  Judge  holding  that  having
invoked  Regulation  7,  the  Board  should   have   conducted   a   regular
departmental inquiry and  inflicting  minor  punishment  without  holding  a
regular departmental inquiry  was  illegal.         Holding  so,  the  order
passed by the Civil Judge was set aside and the suit was decreed.


7.    Aggrieved by the said order, the Board preferred R.S.A.  No.  3094  of
2011 before the High Court of Punjab & Haryana.  The  appeal  was  dismissed
holding that no substantial question of law  arose  for  its  consideration.
Further, it was also held that  the  Board  was  bound  to  hold  a  regular
departmental inquiry and  minor  punishment  could  not  have  been  imposed
merely considering the reply submitted by  the  respondent.    Aggrieved  by
the same, this appeal has been preferred.


8.    Shri Narender Hooda, Additional Advocate  General  appearing  for  the
Board, submitted that the High Court has not properly appreciated the  scope
of Regulations 1990.   Shri Hooda submitted that the Board  was  within  its
rights in not holding regular departmental inquiry since it was  decided  to
impose only a minor penalty which is  permissible  under  Regulations  1990.
Shri Hooda also submitted  that  the  rule  does  not  provide  for  regular
departmental inquiry  for  imposing  minor  punishment,  consequently,  non-
conducting of regular departmental inquiry against the respondent cannot  be
a reason for interfering with the punishment imposed by the Board  which  is
barring of one increment without cumulative effect.  Further,  it  was  also
pointed out that there was  considerable  delay  in  approaching  the  Civil
Court, the order imposing the punishment was passed  on  4.8.1994,  but  the
suit was filed only after a period of 10 years i.e. 13.6.2005 and hence  the
suit itself was barred by time.


9.    Ms. Surbhi Mehta, learned counsel appearing  for  the  respondent,  on
the other hand, submitted that there is no illegality in  the  order  passed
by the High Court calling for interference by this Court.   Learned  counsel
pointed out that once the charge-sheet has been issued under  Regulation  7,
the Board is duty bound to conduct a  regular  departmental  inquiry,  since
major penalty proceeding  has  been  contemplated  against  the  respondent.
Learned counsel also submitted merely by examining the replies submitted  by
the delinquent, the authority cannot impose a minor penalty without  holding
a regular departmental inquiry. The High Court,  according  to  the  learned
counsel, was, therefore, justified in not interfering with the  judgment  of
the learned District Judge.


10.   We have  heard  the  counsel  on  either  side  and  examined  various
contentions raised by them.   In order to properly  appreciate  the  various
contentions raised and to examine the correctness  or  otherwise  the  views
expressed by the High  Court,  it  is  necessary  to  examine  the  relevant
provisions of the Regulations 1990.  Regulations  1990  was  issued  by  the
Board in exercise of its power conferred under Clause (c) of Section  79  of
the Electricity (Supply) Act, 1948  for  governing  the  conditions  of  the
service of the employees of the Board.   The term “Punishing Authority”  has
been defined under Regulation  2(g)  as  an  authority  notified  under  the
Service Regulations to inflict on a Board  employee  any  of  the  penalties
specified in Regulation 4.  Regulation 4 deals with both minor penalties  as
well as major penalties.  The relevant portion of Regulation 4 is  extracted
for an easy reference:


      “4.   PENALTIES:
            The following penalties may, for good  and  sufficient  reasons,
      and as hereinafter provided, be inflicted on an employee:-


           A. MINOR PENALTIES:
        i) Warning with a copy to  be  placed  in  the  personal/(Character
           roll) File;
       ii) Censure;
      iii) Withholding/stoppage if increments  of  pay  without  cumulative
           effect;
       iv) Withholding of promotion for a specific period;
        v) Recover from pay of the whole or part  of  any  pecuniary  loss,
           caused by negligence or breach of orders of the Board or Central
           Government or a State Government or to a Company Association  or
           body of individuals,  whether  incorporated  or  not,  which  is
           wholly or substantially owned or controlled by Government or  to
           a local  authority  set-up  by  an  Act  of  Parliament  or  the
           Legislature of a State, during discharge of official duty.


           B. MAJOR PENALTIES:
       vi) Reduction to a lower stage in  the  time  scale  of  pay  for  a
           specified period, with further directions as to whether  or  not
           the employee will earn increments of pay during  the  period  of
           such reduction and whether on the expiry  of  such  period,  the
           reduction will or will not have the effect of  post-pending  the
           future increments of his pay.
      vii) Reduction to a lower scale of pay or  grade,  post  or  service,
           which shall ordinarily be a bar to the promotion of the employee
           to the time scale of pay or grade or post or service, from which
           he was reduced with  or  without  further  directions  regarding
           conditions of restoration to the grade or post or  service  from
           which the employee was reduced and seniority  and  pay  on  such
           restoration to that grade or post or service;
     viii) Compulsory retirement;
       ix) Removal from service which shall not be a  disqualification  for
           future employment under the Board;
        x)  Dismissal  from   service   which   shall   ordinarily   be   a
           disqualification for future  employment  under  the  Board/State
           Govt./State Govt. Undertakings.”

The procedure for inflicting major penalties is provided  in  Regulation  7.
The relevant portion of the same is extracted hereunder:
      “7.   PROCEDURE FOR INFLICTING MAJOR PENALTIES:
     1)  Without  prejudice  to  the  provisions  of  the  Public  Servants
        (Inquiries) Act, 1850; no order  of  inflicting  a  major  penalty,
        shall be passed against a person  to  whom  these  Regulations  are
        applicable unless he has been given  a  reasonable  opportunity  of
        showing cause against the action proposed to be taken in regard  to
        him.
     2) (a)      The grounds on which it is proposed to take  such  action,
        shall be reduced to the form of definite charge  or  charges  which
        shall be communicated in writing to the  person  charged,  together
        with a statement of allegations  on  which  each  charge  is  based
        alongwith a list of documents and witnesses to be  relied-upon  and
        of any other circumstances  which  it  is  proposed  to  take  into
        consideration in passing  orders  on  the  case  and  he  shall  be
        required within a reasonable time to state in  writing  whether  he
        admits the truth of all or any, of the charges, what explanation of
        defence, if any, he has to offer and whether he desires to be heard
        in person.  If he so desires, or  if  the  authority  empowered  to
        inflict major penalty upon him so directs, an enquiry shall be held
        at which all evidence(s) shall be heard as to such of  the  charges
        as are not admitted.”

The procedure for inflicting minor penalties  is  proved  in  Regulation  8,
which reads as follows:
      “8.  PROCEDURE FOR INFLICTING MINOR PENALTIES:


           (a)   Without prejudice to the provisions of Regulations  7,  an
      order for inflicting minor penalty shall not be passed on an  employee
      unless he has been given a show-cause notice thereof and a  reasonable
      opportunity of making representation there-against.   If  he  requests
      for access to relevant record it may be  allowed  and  opportunity  of
      personal hearing be also given. Request for personal  hearing  may  be
      rejected by the punishing authority by passing a speaking order.
           (b)   Provided that this condition shall not  apply  in  a  case
      where an order based on facts, has led to his conviction in a Criminal
      Court or an order has been passed superseding him for promotion  to  a
      higher post on the grounds of his unfitness for that post  on  account
      of the existence of unsatisfactory record.”

11.   The abovementioned provisions would indicate that an employee  can  be
charge-sheeted for inflicting major penalties as well  as  minor  penalties.
In a given case even if a major penalty has been  proposed  on  getting  the
reply from the delinquent, if the competent authority feels  that  no  major
penalty proceeding need be initiated, it can always switch over to  initiate
proceeding for inflicting minor penalties.
Such a  power  is  conferred  on
the Board vide Sub-regulation 8 of Regulation 7, which reads as follows:
      “7(8).           Where an employee has been charge-sheeted under  this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as  laid  down in Regulation-4 (vi to x) is called for,  it  may  dispense  with  the holding  of  enquiry  and  inflict  straight-away  any  of  the  minor penalties as laid down in Clause (i) to (v) of the ibid Regulation  by a speaking order.”

12.    Above  referred  regulations,  especially  Regulation  7(8)   clearly
indicates that the competent authority has got the power  to  dispense  with
the procedure for  holding  a  departmental  inquiry,  even  though  it  had
contemplated major penalty proceedings, on being satisfied  with  the  reply
submitted by the delinquent officer.  
In such a case, it can  always  follow
the procedure for  imposing  minor  penalty.   Minor  penalty,  as  per  the
Regulation, can be inflicted without holding any  departmental  inquiry,  by
giving only a show-cause-notice and  a  reasonable  opportunity  to  make  a
representation to the  show-cause-notice.  
 Personal  hearing  can  also  be
afforded and also can be dispensed with by a speaking order.

13.   We are of the view that the procedure  referred  to  hereinbefore  has
been  followed  by  the  Board.  
The  delinquent  officer  was   given   an
opportunity  to  submit  his  reply  to  the  show-cause-notice  which was considered and the Board took a conscious decision to impose only  a  minor penalty, i.e. barring one increment without cumulative effect, for which  no full-fledged departmental inquiry is contemplated.   
Learned District  Judge
as well as the High Court, in our view,  has  committed  a  grave  error  in interfering with the punishment imposed by the Board which, in our view,  is perfectly legal, going by the regulations referred to herein before.

14.   Consequently, the appeal is allowed and the judgment  of  the  learned District Judge as well as that of the High Court is set aside.


15.   Learned counsel for the respondent submits  that,  by  virtue  of  the
punishment imposed, he has not been given his due promotion. We are  of  the
view that if imposition of  a  minor  penalty  is  not  a  bar  in  granting
promotion to the respondent, due promotion be granted to him  in  accordance
with the Rules and Regulations applicable to him.




                                                             ……………………………..J.
                                              (K.S. Radhakrishnan)






                                                             ……………………………..J.
                                              (Pinaki Chandra Ghose)
New Delhi,
July 30, 2013



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