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Judgment
Chet Ram Thakur, J.—The Petitioner joined as a junior grade clerk in the Education Department, Himachal Pradesh Government in June, 1950. Thereafter he was promoted as a senior grade clerk in March, 1957 and was posted at Chamba with the District Inspector of Schools to perform the duties of an Accountant as also the duties of a Head Clerk. During that period certain irregularities in account transactions took place for which the Petitioner was charge-sheeted and an enquiry was held by the Central Vigilance Commissioner. A report was submitted to the department holding him guilty. The department issued a show-cause notice Annexure ''D'' whereby he was asked to state why he should not be imposed penalty of reduction of pay to two lower stages (equal to two increments) to the time scale of pay Rs. 60--175 now revised to Rs. 110--250 for a period of two years with cumulative effect. The Petitioner submitted his reply to the show-cause notice. The department was not satisfied with the reply. Consequently the department passed an order Annexure ''F'' imposing a penalty of reduction of pay to two lower stages (equal to two increments) in the time scale of pay of Rs. 60--175 now revised to Rs. 110--250 for a period of two years without cumulative effect. Further it was ordered that he will not be entitled to get anything over and above the subsistence allowance which he has already got during the period of his suspension. The period of suspension shall not count as period spent on duty for any other purposes except for pension and gratuity and it was further ordered that he shall not be considered for promotion for a period of one year and thereafter he can be considered for further promotion on the basis of his conduct and work above satisfactory. The Petitioner filed an appeal which was also dismissed and, therefore, he has filed this petition under Article 226 of the Constitution of India for quashing the orders on the grounds that the show-cause notice Annexure ''D'' was invalid legally because the proceedings were vitiated for the fact that the Inquiry Officer did not call Shri H.D. Lakhanpal in spite of the Petitioner''s repeated requests made to him. Further the penalty imposed vide Annexure ''F'' could not be imposed upon him. It amounts to the confiscation of part of the pay and allowances earned by the Petitioner and, therefore, it constitutes an imposition of a penalty of reduction in rank. It is void legally when no notice to show-cause against it was given to the Petitioner under Article 311(2) of the Constitution. Further the penalty of subsistence allowance for the period of suspension amounts to penalising the Petitioner twice for the same alleged offence on his part. As such the same is legally void. Similarly the period of suspension which has not been treated to count as a period spent on duty except for pension and gratuity is also void. A perusal of Annexure ''D'' shows that no show-cause notice in respect of the penalty was given to the Petitioner. Similarly the order that he will not be considered for promotion for a period of one year is also legally void. It was a penalty over and above that for which a show-cause notice was given to him. The Respondent No. 1 by imposing on the Petitioner more than one penalty has exceeded his jurisdiction. Further it was contended that the order on appeal Annexure ''H'' is also no order in the eye of law being cryptic, vague and ambiguous and not a speaking order.
The Respondents repudiated the allegations and pleaded that the penalty proposed vide Annexure ''D'' is quite in keeping with the provisions in F.R. 29 and even show-cause notice was valid and legal and the penalty imposed vide Annexure ''F'' is factually and legally correct and justified.
The learned Counsel for the Petitioner argued that in the show-cause notice the penalty proposed was lesser whereas the penalty actually imposed was graver and this kind of punishment could not be imposed without affording him an opportunity to represent or show-cause against the same. This order, therefore, was infraction of the principles of natural justice.
The relevant portion of notice Annexure ''D'' whereby he was asked to show why the penalty proposed vide this annexure be not inflicted on him is:
On a careful consideration of the inquiry report, aforesaid, the undersigned agrees with the findings of the Inquiry Officer in respect of the charges levelled against him. The undersigned has, therefore, provisionally come to the conclusion that the penalty of reduction of pay to two lower stages (equal to two increments) in the time scale of pay of Rs. 60--175 now revised to Rs. 110--250 may be imposed on Shri Phulel Singh, Clerk for a period of two years with cumulative effect.
The relevant portion of the order Annexure ''F'' whereby the penalty was imposed on the Petitioner reads as under:
Now, therefore, keeping in view the prolonged period of suspension, the resultant hardship as also monetary loss of pay etc., during the period, the undersigned has finally imposed upon Shri Phulel Singh, Clerk a penalty of reduction of pay to two lower stages (equal to two increments) in the time scale of pay of Rs. 60--175 now revised to Rs. 110--250 for a period of two years without cumulative effect. Shri Phulel Singh shall be deemed to have been re-instated in service with immediate effect. He will not be entitled to get anything over and above the subsistence allowance which he has already got during the period of his suspension. The period of suspension shall not count as period spent on duty for any other purposes except for pension and gratuity. He shall not be considered for promotion for a period of one year and thereafter he can be considered for further promotion on the basis of his conduct and work above satisfactory.
Therefore, it would appear that the penalty which had been earlier proposed was not actually imposed. The first penalty is that of reduction of pay to two lower stages (equal to two increments) in the time scale of pay for a period of two years without cumulative effect. In so far as this portion of the order imposing the penalty is concerned, the same, however, is not grave and is a lesser penalty than the one which was proposed vide Annexure ''D''. Therefore, there cannot be said to be any violation of any principles of natural justice qua this portion of the annexure. However, the Petitioner has been awarded additional punishment which was not proposed in the show-cause notice Annexure ''D'' and, therefore, for that he had to be given a fresh notice before this penalty could be imposed. He could not be condemned unheard and it was incumbent upon the authority imposing the penalty to have issued a fresh show-cause notice to the Petitioner. This having not been done, in my opinion, the order is both in contravention of Article 311(2) as also against the principles of natural justice. In this behalf I may refer to Dayanidhi Rath Vs. B.S. Mohanty, and Brundaban Padhi Vs. State of Orissa, In these cases it has been held that:
Where the punishment tentatively proposed against civil servant is of a lesser kind but after hearing the representation of the civil servant, he is awarded a graver form of punishment, there is non compliance with Article 311(2).
In the instant case the proposed punishment was only with regard to the reduction of pay to two lower stages in the time scale of pay for a period of two years with cumulative effect. But the authority imposed other punishments as detailed out in the concluding paragraph of the Annexure ''F'' whereby he was held not entitled to get anything over and above the susbistence allowance which he had already got during the period of his suspension and the period of suspension was held not to count as period spent on duty for any other purposes except for pension and gratuity and further he was not to be considered for promotion for a period of one year. So this penalty was unwarranted in the absence of any show-cause notice and, therefore, there was violation of principles of natural justice because this penalty was imposed upon him without giving any opportunity of being hard.
Further the latter portion of the order passed without any show-cause notice cannot be said to be a consequential order under F.R. 54 on the re-instatement of a civil servant. Before an order with regard to the period of suspension whether it was to be treated as a period spent not on duty or that the civil servant was not entitled to get anything over and above the subsistence allowance, etc., must be made after a show-cause notice has been given to the civil servant. In this behalf I may refer to M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, wherein it has been held that:
It is also true that in a case where re-instatement is ordered after a departmental inquiry the government servant would ordinarily have had an opportunity to show cause. But there are three classes of cases as laid down by the proviso in Article 311 of the Constitution of India, where a departmental inquiry would not be held. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be consequential order as where a departmental inquiry has been held. Therefore, an order passed under Fundamental Rule 54 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee.
Therefore, if an opportunity to show-cause against the action proposed is not afforded, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. Fundamental Rule 54 contemplates a duty to act in accordance with the basic concept of justice and fair play.
A similar view was adopted in Sri J.P. Agarwal, Regional Transport Officer Dehradun v. State of U.P. through the Secretary Transport Department, Lucknow, and Ors. 1973 (1) S.L.R. 194. In this case there were two directions which were complained of by the Petitioner. One was, allowing the Petitioner only 3/4th of the salary for the period of suspension, and the other direction was with regard to the period of suspension not to be counted as period spent on duty for purposes of earning increments. Relying on M. Gopalkrishna Naidu (supra) it was held that "the principles of natural justice require that in passing an order under F.R. 54 an opportunity to show cause against the action proposed must be given." Therefore, following these authorities it is quite evident that the later portion of the order whereby he had not been held entitled to get anything over and above the subsistence allowance which he had already got during the period of his suspension and that the period of suspension shall not count as period spent on duty for any other purposes except for pension and gratuity and that he shall not be considered for promotion for a period of one year is invalid and is liable to be struck down.
The Appellate order as contained in Annexure ''H'' is not at all a speaking order. No reason has been given as to why the appeal has been rejected. Therefore, this order also is liable to be quashed only to the extent that the latter portion of the order as indicated above is wrong and invalid. No other point was argued.
Consequently, the petition succeeds to this extent that the latter portion of the order Annexure ''F'' and Annexure ''H'' in so far as it affirms this portion of the order are hereby struck down. In view of the partial success of the Petitioner parties shall bear their own costs.