Sureshbhai Naranbhai Patel vs Gujarat Water Supply & Sewerage ...
2023 Latest Caselaw 558 Guj

     C/SCA/628/2018                               JUDGMENT DATED: 18/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 628 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                 SURESHBHAI NARANBHAI PATEL
                            Versus
       GUJARAT WATER SUPPLY & SEWERAGE BOARD & 2 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                      Date : 18/01/2023
                     ORAL JUDGMENT

1. Rule, returnable forthwith. Learned advocate Mr. H. S. Munshaw waives service of rule on behalf of the respondents.

2. The present Special Civil Application is filed praying for the following reliefs :-

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"(A) hold and declare that action of respondent authorities of denying benefit of higher grade scale on the ground of imposition of major punishment is illegal, arbitrary and their own conduct as reflected in service book of petitioner and order dated 22.7.2009, and

(B) hold and declare that petitioner is entitled to receive second higher grade scale from his due date 3.10.2009, and

(C) quash and set aside the letter dated 1.11.2013 and communication dated 28.11.2014 and further be pleased to direct the respondent authorities to extend the benefit of second higher grade scale w.e.f. 3.10.2009 will all consequential benefits, and

(D) direct the respondent authorities to pay arrears flowing from above prayer clause with interest, which the Honourable Court may consider as just and proper, and

(E) award the cost of the petition, and

(F) pending admission and final disposal of the petition, the Honourable Court may be pleased to direct the respondent authorities to pass necessary order of granting second higher grade scale w.e.f. 3.10.2009, and/or

(G) grant any other relief or pass any other order which the Honourable Court may consider just and proper in the facts and circumstances of the case."

3. The brief facts leading to filing of the present Special Civil Application are as follows :-

3.1 The petitioner was appointed as Work-Charge Karkoon in the year 1980 in the pay-scale of Rs.260-400. Thereafter, the petitioner was appointed as Junior Clerk in the same pay-scale in the year 1982 and accordingly, pursuant to 4 th Pay Commission, the

C/SCA/628/2018 JUDGMENT DATED: 18/01/2023

pay of the petitioner was fixed in the appropriate pay-scale with effect from 01.01.1986. That on 17.11.1988, the petitioner was promoted as Senior Clerk in the pay-scale of Rs.1200-2040 which came to be revised as Rs.4000-6000 with effect from 01.01.1996 as per 5th Pay Commission.

3.2 Upon completion of nine years of service and as per the policy of the State Government, the petitioner was granted first higher grade scale of Rs.5000-8000 with effect from 18.11.1997.

3.3 Having worked for about 18 years as Senior Clerk, the petitioner came to be reverted to the post of Junior Clerk with effect from 01.10.2006 purely on administrative ground as stated in the order.

3.4 Upon reversion, the petitioner's pay was accordingly reduced to the pay-scale of Rs.950-1500 as per 4 th Pay Commission and the petitioner was granted Rs.1200-2040 as the first higher grade scale of the cadre of Senior Clerk with effect from 03.10.1994. Finally, the pay-scale of the petitioner was re-fixed as Rs.5200-20200, grade pay Rs.2400/- with effect from 01.10.2006 pursuant to 6th Pay Commission. That on 27.11.2006, a charge- sheet came to be issued to the petitioner, which culminated into the order of punishment dated 17.05.2008. The petitioner was awarded the punishment of withholding/stoppage of one increment without future effect. The order also stated that the pay would be reduced by one increment without any future effect.

3.5 The petitioner came to be granted the second higher grade scale of Rs.9300-34800/-, grade pay of Rs.4200/- with effect from 03.10.2009 upon his completion of another 15 years of

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service. When the said pay-fixation was sent to the pay verification unit, the same was not approved by order dated 10.10.2013 on the ground that the major punishment was imposed upon the petitioner vide order dated 17.05.2008.

3.6 Thereafter, in October 2013, the petitioner was again promoted to the post of Senior Clerk and he worked on the said post till his superannuation. In the meanwhile, the petitioner had made several representations requesting the respondent authorities that the second higher grade scale was wrongly denied to him and the punishment as imposed upon him was not a major punishment, but it was a minor punishment as per the rules. It was also emphasized that the increment was withheld for one year and the same was released by the authority in the next year and therefore, it could not be said to be a major punishment and therefore, he was entitled to receive second higher grade scale. Aggrieved by denial of second higher grade scale, the petitioner has filed the present writ petition.

3.7 Notice came to be issued. The respondents have appeared and opposed the grant of second higher grade scale to the petitioner supporting the orders passed earlier in the case of the petitioner.

4. Learned advocate Ms. Harshal Pandya appearing on behalf of the petitioner submits that the action of the respondent authorities in denying the second higher grade scale to the petitioner on the ground of imposition of major punishment is absolutely illegal and contrary to the rules. She further submits that the respondents have misread and misapplied the rules with respect to the major penalty and minor penalty and have wrongly

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treated the penalty as major penalty. She submits that the penalty as imposed upon the petitioner was also treated by the authorities as a minor penalty which is evident from the service-book of the petitioner and also from the order of pay-fixation dated 22.07.2009. She submits that as per Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971, the stoppage of increment is a minor penalty and even otherwise, the respondent Board has treated the punishment imposed upon the petitioner as minor penalty only. She further submits that the reliance placed upon by the respondent board on government resolutions dated 02.07.2007 and 31.03.2005 is improper and the same is wrongly relied upon since the petitioner is entitled to the benefit of higher grade scale as per the implementation of punishment in the case of the petitioner. She has also submitted that after the punishment was imposed, the petitioner was also promoted and therefore also, the punishment as was imposed upon the petitioner was a minor penalty.

4.1 In support of her case, learned advocate Ms. Pandya has relied upon order dated 03.02.2022 passed in Special Civil Application No.8150 of 2019 which came to be upheld as per order dated 15.09.2022 passed in Letters Patent Appeal No.1159 of 2022. Further, she has relied upon order dated 07.01.2020 passed in Letters Patent Appeal No.56 of 2020. She submits that in both the cases, the petitioners therein were similarly situated at par with the petitioner herein and in those cases, the punishment of stoppage of increment was treated as minor penalty by this Court. She submits that in view of aforesaid judgments, the present writ petition deserves to be allowed and the petitioner be granted second higher grade scale as prayed for.

C/SCA/628/2018 JUDGMENT DATED: 18/01/2023

5. Per contra, learned advocate Mr. H. S. Munshaw appearing on behalf of the respondents submits that a perusal of Rule 6 clearly shows that the stoppage of increment and reduction thereof for one year is major penalty. He submits that the authorities have rightly denied the higher grade scale to the petitioner as the punishment involves reduction of one increment. He submits that further promotion granted to the petitioner was also purely ad-hoc and temporary and therefore, it cannot be said that the promotion was granted in view of the fact that the penalty was treated as a minor penalty. He submits that the reasoned order is passed after thorough examination of fact and material on record as well as taking into account the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971. He submits that as per the provisions of the rules, it is clear that the reduction in the increment is a major penalty and the petitioner was not entitled to any second higher grade scale as prayed for. Learned advocate Mr. Munshaw has distinguished the judgment in respect of Special Civil Application No.8150 of 2019 dated 03.02.2022. He, however, does not dispute the applicability of order dated 07.01.2020 passed in Letters Patent Appeal No.56 of 2020.

6. Heard learned advocates for the respective parties and perused the documents on record.

7. In the present case, it would be beneficial to refer to relevant Rule 6 of Gujarat Civil Services (Discipline and Appeal) Rules, 1971, which reads as under :-

"6. Nature of Penalties : Without prejudice to the provision of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any member of the State,

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Subordinate or Inferior Service namely.

Minor Penalties (1) Censure (2) Withholding of increments or promotion. (3) Recovery from his pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

Major Penalties (4) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increment 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 postponing the further increments of pay.

(5) Reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further direction regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service.

(6) Compulsory retirement.

(7) Removal from service which shall not be a disqualification for future employment under Government.

(8) Dismissal from Service which shall ordinarily be a disqualification for future employment under Government."

8. A bare perusal of the said Rule 6 clearly shows that any withholding of increment only is categorized as minor penalty. It is the contention of learned advocate Mr. H. S. Munshaw that the present case would be governed under Rule 6(4) which constitutes a major penalty. However, a bare perusal of the said rule indicates that the said penalty constitutes reduction in the time-scale of pay which is not so in the present case. The petitioner has not been reduced in the pay-scale, but only one increment has been stopped

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and reduced. Therefore, Rule 6(4) will not be applicable in the present case and the said contention of learned advocate Mr. Munshaw is rejected.

9. This Court in Letters Patent Appeal No.56 of 2020 vide order dated 07.01.2020 has granted the benefit of higher grade scale to the similarly situated employee. Further, order dated 03.02.2022 passed in Special Civil Application No.8150 of 2019 which has been upheld by order dated 15.09.2022 passed in Letters Patent Appeal No.1159 of 2022 is also in respect of the petitioner who is similarly situated to the petitioner herein. In both the cases, this Court has set aside the orders refusing higher grade scale on completion of 15 years of service which was not granted due to stoppage of increment by way of penalty. Learned advocate Mr. Munshaw could not dispute the fact that in the above mentioned cases, the petitioners therein were also similarly situated as the petitioner in the present case.

10. In view of aforesaid observations as well as orders passed by the Coordinate Bench and learned Division Bench of this Court, the present writ petition deserves to be allowed and the same is accordingly allowed. Letter dated 01.11.2013 and communication dated 28.11.2014 are hereby quashed and set aside. The petitioner is entitled to receive the second higher grade scale which is due to him from 03.10.2009 with all consequential benefits. The pensionary benefits of the petitioner be revised accordingly within a period of four weeks from the date of receipt of this order and the said consequential benefits be given to the petitioner within eight weeks after the order in revision is passed by the concerned authority.

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11. The present writ petition is accordingly disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.)

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