Ram Chander v. Union Of India, Central Administrative Tribunal, Judgment, Law, casemine.com

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Case Number

O.A No. 1433/2011

Attorney(S)

(Present: Sh. R.K Shukla)
(By Advocate: Sh. Rajesh Katyal)

Judges

G. George Paracken, Member (J)
Dr. Ramesh Chandra Panda, Member (A)

Acts

Rule 11 (iv) of CCS (CCA) Rules, 1965.
Rule 16 of CCS (CCA) Rules, 1965.

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Smart Summary

Factual and Procedural Background

The applicant, a Librarian Grade-II appointed w.e.f. 1.2.1998, sought financial upgradation under the Modified Assured Career Progression (MACP) Scheme with effect from 1.9.2008. On 27.9.2007 the disciplinary authority imposed a penalty of withholding one increment for two years under Rule 11(iv) of CCS (CCA) Rules, 1965. That penalty, by its terms, would have ceased by 27.9.2009. On 7.5.2008 the disciplinary authority issued a subsequent order imposing the penalty of censure and in that order recorded the earlier 27.9.2007 penalty, which the applicant contends effectively changed the currency of the original penalty by “clubbing” it with the later order.

As a result of the respondents’ position on penalty currency, the applicant was informed that the withholding of increment was effective from 1.7.2008 and ending on 30.6.2010; consequently his MACP claim prior to 30.6.2010 was rejected. The applicant challenged that action before the Tribunal, asserting (inter alia) that the disciplinary authority illegally extended the currency of the first penalty without justification and in violation of natural justice, and pointing to a similarly placed employee whose mistake had been rectified by the respondents.

Respondents explained that the effective dates of increments and the impact of periods treated as dies non, together with change in increment dates on implementation of the VI Central Pay Commission recommendations, produced a situation where the first penal withholding became effective from July 2008 and ran through June 2010, by which time the applicant had retired on 31.1.2010. The respondents denied similarity with the other employee cited by the applicant.

Legal Issues Presented

Whether the disciplinary authority, by recording the earlier penalty dated 27.9.2007 in the subsequent penalty order dated 7.5.2008, unlawfully extended the currency of the original withholding-of-increment penalty beyond its intended period.
Whether the applicant is entitled to release of the withheld increment(s) and consequent MACP benefits and pensionary revision for the period after the true expiry of the penalty's effect.
Whether the amalgamation or "clubbing" of two separate penalty orders (withholding of increment and later censure) was permissible and whether such amalgamation resulted in the applicant suffering beyond the scope of the penalty actually imposed.

Arguments of the Parties

Applicant's Arguments

The currency of the withholding-of-increment penalty imposed on 27.9.2007 expired on 26.9.2009 and should not have been extended by recordal in a later order dated 7.5.2008. By repeating the earlier order in the later order, respondents effectively extended the penalty unjustifiably.
The disciplinary authority’s amalgamation of the two penalties was illegal and without rule-based sanction, violating principles of natural justice.
The applicant pointed to a comparable case (Sh. Praveen Kumar Srivastava) where a similar error was rectified on representation, arguing he deserved like treatment.
Relief sought included release of the withheld increment, grant of MACP benefits from the correct effective date, and consequential revision of pensionary benefits.

Respondents' Arguments

The first penalty (withholding of one increment for two years) was imposed by order dated 27.9.2007 for unauthorized absence; certain periods of absence were treated as dies non, which affected the applicant’s normal increment dates.
Due to dies non and subsequently the implementation of the VI CPC (which moved increment dates to July), the practical effect was that the withholding applied from July 2008 and ran till 30.6.2010; hence the MACP claim before 30.6.2010 was rightly rejected.
The case of Sh. Praveen Kumar Srivastava was not comparable, because the nature of penalty and its mechanics differed in that case (reduction to a lower stage vs. withholding of increment).
Respondents maintained that the applicant had further instances of unauthorized absence and subsequent penalties (including censure), which affected entitlement timings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
OA-1699/2007 Prem Singh Verma vs. Union of India (Coordinate Bench)	Principles regarding the effect of a temporary withholding-of-increment penalty without cumulative effect: - Upon expiry of the period of punishment, pay is to be fixed as if the punishment had not been undergone (notional fixation). - Promotions that fell during the currency of such punishment cannot be given effect during that currency; to do otherwise would amount to imposing double penalties (double jeopardy).	The opinion reproduces the holdings of the Coordinate Bench decision and treats those principles as supportive of the proposition that a person should not be made to suffer beyond the scope of the penalty. The Tribunal considered these principles in assessing whether the applicant's withheld increments and MACP entitlements were wrongly postponed by extending the penalty period.

Court's Reasoning and Analysis

The Tribunal analyzed the chronology of events, focusing on (a) the original penalty dated 27.9.2007 (withholding of one increment for two years); (b) periods of unauthorized absence treated as dies non that affected the applicant’s normal increment date; and (c) the subsequent penalty dated 7.5.2008 (censure) which recorded the earlier penalty.

Key factual and legal steps in the Court's analysis:

The Tribunal accepted that the first penalty was imposed on 27.9.2007 and, in ordinary course, the applicant’s normal date of increment had been January 1 each year. The increment due on 1.1.2008 was withheld by that penalty and the subsequent increments would have been due on 1.1.2009 and 1.1.2010 respectively.
Because two spells of absence were treated as dies non (24.4.2007 to 22.7.2007 and 30.7.2007 to 6.8.2007), the applicant’s increment date shifted permanently from 1.1.2008 to 1.4.2008, and later, following implementation of VI CPC recommendations, to 1.7.2009. The respondents used this sequence to treat the withholding as running from 1.7.2008 to 30.6.2010.
The Tribunal observed that although the respondents had issued the censure on 7.5.2008, that penalty’s adverse impact was temporary (six months) and had ceased by 7.11.2008. After that date the applicant was free from departmental proceedings with adverse effect.
The Tribunal concluded that there was no legal basis to extend the currency of the 27.9.2007 withholding penalty simply by noting it in the later 7.5.2008 order; doing so effectively postponed the expiry of the first penalty beyond what it was intended to achieve, thereby making the applicant suffer beyond the scope of the imposed penalty.
Relying on the settled principle (as illustrated in the cited Coordinate Bench decision) that penalties should not be extended to cause additional or cumulative deprivations beyond that which was ordained, the Tribunal found merit in the applicant’s contention that he was entitled to the increment that fell on 1.7.2009 and to the release of the withheld increment of 1.1.2008 upon retirement, and consequently to MACP benefits from 1.7.2009 if otherwise eligible.

Holding and Implications

Holding:

The Tribunal allowed the Original Application in part and directed relief in favour of the applicant.

Direct remedial directions and their implications as ordered by the Tribunal (as stated in the opinion):

The applicant was deemed free from adverse departmental impact from 7.11.2008 onward (because the censure’s adverse effect was temporary), and therefore was entitled to the last increment in service w.e.f. 1.7.2009, if not already granted.
The withheld increment due on 1.1.2008 was ordered to be released to the applicant when he retired on 31.1.2010.
The applicant was held to be entitled to MACP benefits from 1.7.2009 onwards until his retirement on 31.1.2010, if he was otherwise eligible under the scheme.
The respondents were directed to reconsider the matter and grant the aforesaid benefits, including revision of pensionary benefits, within two months from receipt of a copy of the Tribunal’s order.
The Tribunal made no order as to costs.

Broader implications: The opinion confines its relief to correcting the temporal effect of penalties on the applicant’s increments, MACP entitlement and pensionary benefits. The Tribunal framed the decision on the specific facts and chronology before it and did not purport to lay down a new, general rule beyond applying established principles that a penalty should not be extended so as to cause suffering beyond its lawful scope.

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Ram Chander v. Union Of India

Honble Shri George Paracken: The applicant in this Original Application is aggrieved by the impugned Annexure A-1 order dated 7.10.2009 whereby his claim for grant of financial upgradation under the MACP Scheme has been rejected on the ground that he was undergoing punishment imposed upon him under Rule 16 of CCS (CCA) Rules, 1965.

2. The brief facts which are necessary for adjudication of this case are delineated here. The applicant has been working as Librarian Grade-II w.e.f. 1.2.1998. He was eligible for grant of financial upgradation under the Modified Assured Career Progression (MACP for short) Scheme w.e.f. 1.9.2008. During this period, vide Annexure A-2 order dated 27.09.2007, respondents have imposed upon him the penalty of withholding of one increment for a period of two years under Rule 11 (iv) of CCS (CCA) Rules, 1965. The currency of the said punishment should have been over by 27.9.2009. However, during the currency of the OA vide Annexure A-3 order dated 7.5.2008, the disciplinary authority has imposed upon him the penalty of censure under sub rule (i) of the same rules but in the said order they have mentioned about the earlier order dated 27.9.2007. Thus, according to the applicant, the respondents, in violation of the principles of natural justice, changed the currency of the first penalty imposed upon him vide order dated 27.9.2007 from 7.5.2008 by clubbing the same with order dated 7.5.2008. As a result, even after completing 11 years of service as Librarian Grade-II, he was not granted the benefits under the MACP Scheme. The applicant has challenged the aforesaid action of the respondents on the ground that similarly placed person, namely, Sh. Praveen Kumar Srivastava was also penalized by the respondents in the same manner, i.e., first by imposing a penalty of withholding of increment and thereafter by another penalty and the date of currency of earlier penalty was changed in the subsequent penalty even though there was no need to record the earlier penalty in the subsequent letter. On his representation, the mistake committed in the case was rectified by the respondents themselves. Applicant has also made the Annexure A-5 representations (colly.) dated 28.8.2009, 15.9.2009 and 22.9.2009 against the aforesaid action of the respondents. However, in his case the respondents have rejected his request vide the impugned Annexure A-1 order dated 14.1.2010 stating that after the imposition of penalty in question the applicant has again committed the same offence again for which he has been penalized again.

3. Applicant has challenged the aforesaid decision of the respondents on the ground that the currency of penalty of withholding of increment for two years imposed upon him on 27.9.2007 expired on 26.9.2009 but by repeating the aforesaid order in the second penalty order dated 7.5.2008, the currency of the penalty imposed upon 27.9.2007 has been extended beyond 26.9.2009. He has also submitted that the amalgamation of the two penalties by the disciplinary authority is illegal and it is without the sanction of any rules. In this regard, the applicant has referred to the Order 22 under Rule 135 of P&T Manual, Vol.III which reads as under:- (22) Promotion/transfer while under punishment - An official on whom the penalty of withholding of increment or reduction to a lower service, grade or post, or to a lower time-scale or to a lower stage in a time-scale has been imposed for a specified period should not be transferred or posted to another service, grade or post, on or after the date of orders imposing the penalty but before the date from which the orders finally cease to be operative, if such a transfer, or posting results in payments of basic pay higher than that admissible to him in the existing service, grade or post consequent on the punishment orders.

4. The learned counsel for applicant has also relied upon an Order of a Coordinate Bench of this Tribunal in OA-1699/2007 Prem Singh Verma vs. Union of India. The undisputed facts in the said case were that the applicant therein was working as Senior Signaller in the grade of Rs.330-560 at Aligarh Jn., Northern Railway when he was awarded the punishment of withholding of increments for two years without cumulative effect w.e.f. 1.10.1983. During the currency of penalty he became entitled to promotion from the post of Senior Signaller to the Head Signaller in the pay scale of Rs.425-640 w.e.f. 1.9.1984. In accordance with the Railway Boards order restructuring the cadre. The question adjudicated in the said OA was whether on expiry of the currency of penalty of withholding of increment temporarily for two years on 1.10.1985, the pay of the applicant should be fixed at Rs.620/- p.m. or should it be at the stage of Rs.580/- p.m. The contention of the applicant therein was that his pay was correctly fixed at Rs.620/- p.m. initially in the scale of pay of Rs.425-640, after granting one increment of Rs.15/- from the due date, i.e., 1.10.1983 raising his pay from Rs.560/- and granting another increment of Rs.15/- on his promotion w.e.f. 1.1.1984 under FR 22-C raising his pay to Rs.565/- . The next stage in the grade of Rs.425-640 was Rs.580/- and on 1.1.1985 it was fixed at Rs.600/- and pay on 1.1.1986 was fixed at Rs.620/-. However, the stand of the respondents was that the pay of the applicant was fixed wrongly at Rs.620/- w.e.f. 1.1.1986 by allowing him promotion w.e.f. 1.1.1984. This Tribunal held that the applicant was admittedly punished for a period of two years whereby his increment was withheld temporarily without cumulative effect. The same penalty was imposed upon him from 1.10.1983, the date on which his increment was due in the pay scale of Rs.330-560. The period of punishment was expired on 1.10.1985 and the applicant became entitled to get his pay fixed in the scale of pay as if he had not undergone the punishment of withholding of increment temporarily for two years. Since the penalty was not to operate to postpone future increments the applicants pay was to be fixed notionally at the stage which he would have reached had the said penalty not been imposed on him. In the meantime, the applicant became entitled to promotion w.e.f. 1.1.1984 and the said punishment was not given effect during the currency of the punishment. But after the elapse of period of punishment on 1.10.1985, he became entitled to get his pay fixed in the scale of Rs.425-640 w.e.f. 1.1.1984 and then w.e.f. 1.10.1985. The Tribunal has also held that the applicant could not have been promoted w.e.f. 1.1.1984 as he was undergoing punishment on that point of time and the promotions could be allowed only after the currency of the punishment has expired. The Tribunal further held that the withholding of promotion itself being a penalty, if, along with the withholding of increments, promotion is also withheld, it would tentamount to imposition of double penalty and would result in double jeopardy.

5. Respondents in their reply have submitted that the disciplinary authority has first imposed the penalty of withholding of one increment for a period of two years upon the applicant vide order dated 27.9.2007 for the unauthorized absence. The unauthorized absence period of 90 days from 24.4.2007 to 22.7.2007 was also treated as dies non. The applicant again absented himself from duty from 1.2.2008 to 15.2.2008. Accordingly, disciplinary authority imposed upon him the penalty of censure vide order dated 28.3.2008. He again absented himself from duty for the third time from 14.5.2008 to 13.6.2008 for a period of 31 days and the said period of unauthorized absence was treated as dies non. Meanwhile, he claimed for benefits under the MACP scheme but the respondents have informed him vide letter dated 7.10.2009 that his increment has been withheld for a period of two years from 1.7.2008 and it was ending only on 30.6.2010. Hence, his application for grant of MACP before 30.6.2010 was rejected. They have also submitted that his contentions regarding the case of Sh. Parveen Kumar Srivastava (supra) was wrong as it has no similarity with his case. While Sh. Parveen Kumar Srivastava was given the minor penalty of reduction to a lower stage (by two stages) in the time scale of pay for a period of two years, the applicant was given minor penalty of withholding of one increment for a period of two years. They have also stated that the applicant was not granted financial upgradation under the MACP scheme because he was under currency of penalty period. Although, the penalty of withholding of one increment of two years was imposed on him on 27.9.2007, the penalty was to be effected with effect from the next increment, which was on 1.1.2008. However, due to the imposition of dies non from 24.4.2007 to 24.7.2007 (90 days) and 30.7.2007 to 6.8.2007 (8 days) his original date of increment was deferred form 1.1.2008 to 1.4.2008 permanently as the period of dies non were not to be counted for granting increments. Thereafter, on implementation of the recommendation of the 6th CPC, the date of increment of all the employees was uniformly changed to the July of every year and accordingly the applicants increment was changed to July 2008. Consequently, the penalty of withholding of one increment became effective from July 2008 (1st year) and July 2009 (second year) and currency of penalty expired on 30.6.2010 but by that time he already retired from service on 31.1.2010.

6. We have heard the learned counsel for the parties. The first penalty imposed upon the applicant was withholding of one increment for a period of 2 years vide order dated 27.9.2007. The two periods of his unauthorized absence treated as dies non were from 24.4.2007 to 22.9.2007 (90 days) and from 30.7.2007 to 6.8.2007 (8 days). Earlier his normal date of increment was from the month of January every year. After the order dated 27.9.2007, his date of increment fell on 1.1.2008 which was withheld. The next two increments were to fall on 1.1.2009 and w.e.f. 1.1.2010 respectively. Along with the increment w.e.f 1.1.2010 the withheld increment as on 1.1.2008 was also to be released. However, in the case of the applicant, since his absence periods from 24.4.2007 to 24.7.2007 (90 days) and from 30.7.2007 to 6.8.2007 (8 days) were treated as dies non, his normal date of increment from 1.1.2008 was shifted permanently to 1.4.2008 and the next date of increment was, therefore, fell only on 1.4.2009. However, on implementation of the recommendations of the VIth CPC, his date of increment was again postponed to 1.7.2009. There was no impediment for the respondents to release the increment to the applicant which fell on 1.7.2009 even though before the aforesaid date, the respondents had issued the penalty of Censure upon the applicant vide order dated 7.5.2008 but its adverse impact remained for six months, i.e., only up to 6.11.2008. Thus, the applicant was entitled to get his last increment on 1.7.2009 before he retired on 31.1.2010. However, since the respondents have mentioned about his first penalty dated 27.9.2007 in his second penalty order dated 7.5.2008 the currency of the penalty has been postponed to 7.5.2010, and it was wrong. Again, for the aforesaid reasons, the Applicant also could not get his withheld increment w.e.f. 1.1.2008 released after two years. In our considered view, the applicant need to suffer beyond the scope of penalty.

7. In view of the above position, we find merit in the contention of the applicants counsel. As the applicant was free from all departmental proceedings with effect from 7.11.2008 as the adverse impact of penalty of censure was of temporary nature, the applicant has to be granted the last increment in his service w.e.f. 1.7.2009, if the same has not already been granted. Again, his withheld increment on 1.1.2008 shall also be released to him when he retired on 31.1.2010. He is also entitled for the MACP benefits from 1.7.2009 onwards till his retirement on 31.1.2010, if he was otherwise eligible for the same. Consequently, the respondents shall reconsider the matter in the light of the aforesaid observations for the grant of the aforesaid benefits including the revision of his pensionary benefits within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. ( Dr. Ramesh Chandra Panda ) ( George Paracken ) Member (A) Member (J)

Ram Chander v. Union Of India

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Chander v. Union Of India

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