Balmukund Popatlal Rajyaguru vs Gujarat Water Supply And Sewerage ...
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      C/SCA/4521/2020                                   JUDGMENT DATED: 03/03/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 R/SPECIAL CIVIL APPLICATION NO.4521 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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 1 Whether Reporters of Local Papers may be allowed to see the
       judgment ?

 2 To be referred to the Reporter or not ?

 3 Whether their Lordships wish to see the fair copy of the
       judgment ?

 4 Whether this case involves a substantial question of law as to the
       interpretation of the Constitution of India or any order made
       thereunder ?

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                BALMUKUND POPATLAL RAJYAGURU
                              Versus
     GUJARAT WATER SUPPLY AND SEWERAGE BORAD THORUGH CHIEF
                     ADMINISTRATIVE OFFICER,
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MR RAJESH CHAUHAN, ADVOCATE for MR HS MUNSHAW(495) for the
Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                  Date : 03/03/2022

                                ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Rajesh Chauhan,

learned advocate waives service of notice of Rule for

and on behalf of the respondents.

2. With the consent of the learned advocates for the

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respective parties, the petition is taken up for final

hearing today.

3. In this petition, under Article 226 of the Constitution

of India, the petitioner has prayed for quashing and

setting aside the order dated 31.12.2019 passed by

the respondents, by which, the benefits of 2nd higher

grade scale to the petitioner have been denied on

the ground that penalty of stoppage of one

increment without future effect was imposed on the

petitioner.

4. Mr. Samir Gohil, learned counsel for the petitioner

would submit that the petitioner was appointed as a

Work Charge Clerk on 21.5.1981. He was given

regular appointment on 15.7.1990. The petitioner

was granted the first higher pay scale on completion

of 9 years from 15.7.1999. In accordance with the

Government Resolution dated 2.7.2007, he was

entitled to the benefit of 2nd higher pay scale on

completion of 15 years i.e. on and from 15.7.2014.

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This has been denied on the ground that the

petitioner is imposed of stoppage of one increment

without future effect.

5. Mr. Rajesh Chauhan, learned advocate appeared on

behalf of Mr. H.S. Munshaw, learned counsel for the

respondents. Reliance is placed on GR dated

15.9.2015 to submit that in case a major penalty is

imposed, then the benefit of 1st higher pay scale is

not available to the employee.

6. This Court, by a decision dated 3.2.2022 passed in

Special Civil Application No.8150 of 2019

considered the case of coordinate Bench of this

Court in Special Civil Application No.17080 of 2018.

Relevant paragraph Nos.6 to 8 of decision dated

3.2.2022 passed in Special Civil Application No.8150

of 2019 are reproduced hereunder:

"6 Considering the submissions made by the learned counsels appearing for the respective parties, reading the order of the penalty annexed to the petition dated 26.09.2009

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makes it evident that the penalty that was imposed upon the petitioner was stoppage of one increment without future effect. The table demonstrates the fact that the petitioner was then released the increments for subsequent years on currency of the penalty having expired. The contention of Mr.Jani, learned advocate, that the penalty was under Sub-

clause 4 of Rule 6 are not one under Subclause 2 thereof which is a penalty " withdrawing of increments...." is without merit.

7 Having held so, the decision in the case of Sultanaben (supra), rendered by this Court in oral order dated 28.01.2019 need to be considered in that context. Before the Co- ordinate Bench of this Court, the petitioner therein had approached the Court for setting aside the decision of 21.08.2018 by which the petitioner was denied the second higher pay scale. The stand of the respondent - Board, while rejecting the case for the second higher pay scake was that the petitioner was not entitled to the second higher pay scale since the penalty imposed on the petitioner was a withhelding of one increment without future effect. That is evident from reading paras 3.1 to 3.2 of the order.

7.1 It was in the context of these facts that the Bench set aside the impugned decision by holding thus:

"5.1 The impugned decision is rested on the condition No. 40(b) of resolution of the Finance Department dated 15.9.2015 which provide that if the government servant is imposed with major penalty at the end of departmental proceedings, in such eventuality higher pay scale will not be liable to be granted to him. The petitioner was imposed penalty of

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stoppage of one increment without future effect by order dated 7.4.2005. Now, in order to contend that this penalty is major penalty, the respondents have relied on circular dated 5.9.2008 of the respondent Gujarat Water Supply and Sewerage Board. There is a total misreading of circular by the respondents.

5.2 The circular categorises the classes of penalties as minor penalties and major penalties. The withholding of next increment without future effect as well as withholding of next increment with future effect, both are treated as minor penalties. Therefore, it is entirely erroneous and misleading on part of the respondents to contend that the penalty imposed on the petitioner was a major penalty as contemplated in the circular. The penalty of stoppage of increment without future effect is a minor penalty as per circular dated 5.9.2008 itself. It could not be treated as major penalty to raise the case that the petitioner would be disentitled to receive the second higher pay scale in view of the condition No.40(b) of the Resolution dated 15.9.2015, which mentions the ground of a major penalty to render the government employee disentitled to receive the higher pay scale.

6. In addition to the above, as per the above undisputed dates, the petitioner became entitled to the second higher pay scale on 29.11.2012. Resolution dated 15.9.2015 was not in existence much less in force on the date when the petitioner became entitled to second higher pay scale. The resolution on which the respondents places reliance is subsequent in point of time, therefore could not have

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been applied in the case of the petitioner.

7. For all the foregoing reasons, the petitioner is entitled to succeed. Resultantly, communication dated 21.8.2018 and the decision reflected therein to deny the petitioner the second higher grade is hereby set aside. The petitioner shall be entitled to the second higher grade with effect from 29.11.2012 when he completed 15 years of service from the date of grant of first higher grade pay. Since the petitioner has retired his pension shall also be revised accordingly. It is, therefore, provided that the petitioner shall be granted second higher grade pay as directed above and shall be further paid the arrears arising by virtue of this order within a period of eight weeks from the date of receipt of writ of this order. If the amount and the arrears is not paid within the time stipulated above, it shall carry interest at the rate of 6% from the date of filling of this petition that is from 19.9.2018. The petition stands allowed. Rule is made absolute accordingly. Direct service is permitted."

7.2 Accordingly, the facts of case are akin to the one rendered by this Court in Sultanaben (supra).

8 Accordingly, the petition is allowed. The order dated 15.09.2015 is quashed and set aside. The respondents are directed to restore the earlier order dated 14.07.2015 which granted the second higher grade scale to the petitioner with effect from 09.05.2012. The pensionary benefits of the petitioner be revised accordingly in accordance with the order dated 14.07.2015 and the same consequential benefits be paid to the petitioner within a

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period of eight weeks from the date of receipt of copy of this order. The petition is allowed, accordingly."

7. Even a Division Bench of this Court in Letters Patent

Appeal No.56 of 2020 on 7.1.2020 in the case of

Gujarat Water Supply and Sewerage Board v.

Dinesh Amrutlal Solanki considered the same

submission made by the learned advocates for the

respective parties opined that stoppage of one

increment without future effect is minor penalty

and, therefore, the 2nd higher pay scale could not

have been withheld. For the sake of convenience,

relevant paragraph Nos.11 to 16 of such decision

are reproduced hereunder:

"11. Having perused the penalty order, it appears that the Member Secretary of the Board, being the Appellate Authority, has modified the order of penalty and inflicted a penalty to the extent of stoppage of one increment without future effect and only for a period of six months. If that is the status of penalty and the circular issued by the same Board which has been taken care of by learned Single Judge who has opined that this penalty is to be treated as a minor penalty, we are not inclined to take a different view in the absence of other distinguishing circumstance. We see no perversity nor any irregularity in the order passed by the learned Single Judge.

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12. Additionally, our attention is drawn to another order dated 15.9.2018, reflected on page 31 of the petition compilation, which undisputedly indicates that in case of one employee of this very appellant Board, i.e. Shri B.G. Makwana. He was also faced with similar situation and has been extended the benefit of second higher pay scale on the completion of 24 years' service, which is an order dated 15.9.2018 passed by the appellant Board. This order is not in dispute and Mr. Munshaw is not in a position to explain about such discriminatory treatment being meted out to the petitioner. Resultantly, we are not inclined to interfere with the order passed by the learned Single Judge.

13. Further, on a bare perusal of the impugned order passed by the learned Single Judge, it appears that a reference has been made to a circular dated 5.9.2008, which has categorized the penalties into minor and major. The conclusion arrived at by the learned Single Judge as contained in para 5, 5.1 to 6 read as under:-

"5. Thus, the impugned decision is rested on the condition No. 4(b) of the resolution dated 15.9.2015 of the Finance Department, which provided that in a case where the government servant is imposed with the major penalty at the conclusion of the departmental proceedings, in such eventuality the higher pay scale will not be granted to him. As the petitioner was imposed penalty of stoppage of one increment without future effect for six months, it was treated as major penalty to deny the petitioner the benefit of higher pay scale.

5.1 This court in Sultanaben Bavudinabhai Kazi vs. Gujarat Water Supply and

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Sewerage Board being Special Civil Application 14668 of 2018 dealt with a case where the facts were quite akin to the facts of the present one. In that case, the petitioner was visited with similar penalty of stoppage of one increment without future effect pursuant to the departmental proceedings and based upon that the second higher pay scale was denied to him the respondents had relid on the same condition No. 4(b) of the Resolution dated 15.9.2015 and had further relied on the circular dated 5.9.2008 of the respondent board which categorisased class of penalty into minor and major.

5.2 In Sultanaben Bavudinabhai Kazi (supra), it was observed and held that there was a total misreading of the condition by the respondents.

5.3 The circular categorises the classes of penalties as minor penalties and major penalties. The withholding of next increment without future effect as well as withholding of next increment with future effect, both are treated as minor penalties. Therefore, it is entirely erroneous and misleading on part of the respondents to contend that the penalty imposed on the petitioner was a major penalty as contemplated in the circular. The penalty of stoppage of increment without future effect is a minor penalty as per circular dated 5.9.2008 itself. It could not be treated as major penalty to raise the case that the petitioner would be disentitled to receive the second higher pay scale in view of the condition No. 40(b) of the Resolution dated 15.9.2015, which mentions the ground of a major penalty to

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render the government employee disentitled to receive the higher pay scale.

6. In addition to the above, as per the above undisputed dates, the petitioner became entitled to the second higher pay scale on 23.3.2012. Resolution dated 15.9.2015 was not in existence much less in force on the date when the petitioner became entitled to second higher pay scale. The resolution on which the respondents places reliance is subsequent in point of time, therefore could not have been applied in the case of the petitioner."

14. It was rightly observed by the learned Single Judge that the petitioner undisputedly became entitled to second higher pay scale as on 23.3.2012, whereas the resolution tried to be pressed into service is from 15.9.2015, i.e. at a much later point of time, and having no retrospective effect at all. With that being so, it is erroneous on the part of the appellant Board to apply such clauses having no applicability at all. The learned Single Judge has rightly appreciated this aspect of the matter. Resultantly, no case is made out by the appellant Board to call for any interference.

15. Additionally, the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company reported in (2016)3 SCC 340, has laid down the proposition to deal with the Letters Patent Appeal while examining the the order passed by learned single Judge.

16. In view of the aforesaid situation, which is prevailing on record, and on overall consideration of the material as well as the reasons assigned by learned Single Judge, we are of the considered opinion that no case has

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been made out by the appellate Board that may call for any interference. Resultantly, the appeal lacks merits and the same is accordingly dismissed hereby."

8. Accordingly, the petition is allowed. The respondents

are directed to extend the benefit of the 2 nd higher

pay scale to the petitioner on and from 15.7.2014.

Since the petitioner has retired on 31.8.2018,

appropriate revision of pay and pension be done and

consequential benefits also be paid to the petitioner.

Such exercise shall be carried out by the

respondents within a period of eight weeks from the

date of receipt of copy of this order.

9. Rule is made absolute to that extent. Direct Service

is permitted. No costs.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA