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CASE NO.: Appeal (civil)  1267 of 2006

PETITIONER: Union of India & Anr

RESPONDENT: S.C. Parashar

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of SLP(C)No.23942/2003)

S.B. SINHA, J :

Leave granted.

The respondent was a Deputy Commandant in 42 Bn. of Central  Reserve Police Force (CRPF).  He, in the month of December, 1992,  was acting as Officer-in-charge of DAGOs in Delhi in connection with  53rd CRPF anniversary parade which was to be held during the period  December, 1992 and January, 1993.  He was given a new Maruti  ‘Gypsy’ for performing  official duties.  He allegedly drove the said  Maruti  unauthorisedly and at a very high speed beyond his jurisdiction  and met with a serious accident when the said vehicle collided with a  stationary truck between Manesar and Delhi on National Highway No.8.   The driver of the said Gypsy L/Nk Anand Singh suffered serious  injuries on his person.  The respondent, however, left the vehicle  unattended.  He also left the said driver in an unconscious state.  He  also did not inform headquarters about the said accident.   

A disciplinary proceeding was initiated against him on the charges  that he failed to maintain absolute devotion to duty and acted in a  manner unbecoming of a Government servant and thereby violated the  provisions contained in Rule 3(1)(ii) and (iii) of the Central Civil  Services (Conduct) Rules, 1964 (’the Rules’). In the disciplinary  proceedings he was found guilty of the said charges.  The disciplinary  authority,  being the President, imposed the following penalty upon  him :

"In the light of the above, having regard to all  other aspects of the case and after consultation  with UPSC the President considers that ends of  justice would be met in this case if the penalty of  (i) "Reduction to minimum of the time-scale of  pay for a period of 3 years (three) with  cumulative effect, including loss of seniority and  (ii) penalty of 25% (twenty five per cent) of the  loss incurred by the Govt. to the tune of  Rs.74,341.89 i.e. Rs.18,585.47 (Rupees Eighteen  thousand five hundred eighty five and paisa forty  seven) only on account of damage to the Gypsy  in 18 (eighteen) equal monthly instalments" is  imposed on Shri S.C. Parashar, Dy. 42 Bn. CRPF.  

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The President hereby orders accordingly."

The respondent filed a writ petition before the High Court of Delhi  questioning the said order of punishment, which was marked as  C.W.P.No.3992 of 1997.   

Having regard to the nature of penalty imposed upon the  respondent, the counsel appearing on behalf of Union of India  contended before the High Court that the same was imposed in terms  of clause (a) of sub-Rule (iii) of Rule 11 of the CCS (CCA) Rules (CCS  Rules). The High Court, while refusing to go into the relevancy or  otherwise of the material brought on record in the departmental  proceeding found that penalty was imposed in violation of the said  Rule on the premise that sub-Rule  (iii)(a) of Rule 11 provides only for  a minor penalty and thus in terms thereof reduction of pay for a period  of three years should not have been directed to be effected with  cumulative effect.  Consequently, it was directed :

"The petitioner shall be entitled to seniority  on the basis of DPC which was held on 7.4.1997  when his immediate junior was promoted to the  rank of Second-In-Command.  The petitioner  shall also be entitled to all consequential benefits  which stood denied due to punishment of loss of  seniority."

The learned Additional Solicitor General appearing on behalf of  the Appellant contended before us that in the facts and circumstances  of the case, sub-Rule (v) of Rule 11 of CCS Rules is attracted and not  sub rule (iii) thereof.    

Mr. Anupam Lal Das, learned counsel appearing on behalf of  respondent, on the other hand, would submit that in view of the  concession made at the Bar before the High Court and in particular,  the fact that two penalties as contemplated under sub-Rules (iii) and  (iii)(a) of Rule 11 of CCS Rules were also included in the order of  punishment, the same must be held to be illegal.  It was further  submitted that the Enquiry Officer or the Disciplinary Authority failed  to take into consideration the circumstances under which the accident  took place.  According to the learned counsel, the respondent had  gone to Manesar to collect some material for the purpose of imparting  training to the trainees which being not available, they were returning  to Delhi.  On his way to Delhi he had his dinner.  The driver was sent  to the Mess and as the driver being drunk, was not in a fit state to  drive, he had to drive the vehicle himself.   

In this case, we are not concerned with the correctness or  otherwise of the report of the Enquiry Officer. Misconduct on the part  of the Respondent has been proved.  The High Court also did not go  into the said question.  The respondent has not questioned before us  that part of the order of the High Court.   

The only question, therefore, which arises for consideration is as  to whether in terms of the rules the penalty imposed on the  respondent was permissible in law.  The relevant provision of Rule 11  of CCS Rules reads thus :

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"PENALTIES          The following penalties may, for good  and sufficient reasons and as hereinafter  provided, be imposed on a Government servant,  namely :-

               Minor Penalties \026

(i)     censures;

(ii)    withholding of promotion;

(iii)   Recovery from his pay of the whole or  part of any pecuniary loss caused by him to the  Government by negligence or breach of order;  

(iii)(a)        reduction to a lower stage in the  time-scale of pay for a period not exceeding 3  years, without cumulative effect and not  adversely affecting his pension.

xxx               xxx                   xxxx

(v)     save as provided for in clause (iii)(a),  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 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 postponing the future increments of  his pay."

It is not in dispute that sub-Rules (iii) and (iii)(a) of Rule 11  provide for minor penalties whereas clause (v) thereof provides for  major penalty. Indisputably the procedure adopted in the departmental  proceeding was for imposition of a major penalty.  It is trite that even  in a case where the procedure followed in the departmental  proceedings for imposition of a major penalty, having regard to the  facts and circumstances of a case, minor penalty can also be imposed.    The question is as to whether the penalty imposed by the President  upon taking into consideration the report filed by the Enquiry Officer,  was under clauses (iii) and  (iii)(a) or clause (v) of Rule 11 of the CCS  Rules.   

Before adverting to the said question we may record that wrong  concession of a counsel on a pure question of law is not binding upon a  party.  It is furthermore trite that non-mentioning or wrong mentioning  of a provision in an order may be held to be irrelevant if it is found that  the requisite ingredients thereof were available on records for passing  the same.  We may further notice that the High Court proceeded on  the basis that the penalty imposed upon him was a major penalty.

The penalty imposed upon the  respondent is an amalgam of  minor penalty and major penalty.  The respondent has been inflicted  with three penalties : (1) reduction to the minimum of the time-scale  of pay for a period of three years with cumulative effect; (2) loss of  seniority; and (3) recovery of 25% of the loss incurred by the  Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on  account of damage to the Gypsy in 18 (eighteen) equal monthly

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instalments.  Whereas reduction of time-scale of pay with cumulative  effect is a major penalty within the meaning of clause (v) of Rule 11 of  the CCS Rules, loss of seniority and recovery of amount would come  within the purview of minor penalty, as envisaged by clause (iii) and  (iii)(a) thereof.  The Disciplinary Authority, therefore, in our opinion  acted illegally and without jurisdiction in imposing both minor and  major penalties by the same order.  Such a course of action could not  have been taken in law.

However, there cannot be any doubt whatsoever that the  Disciplinary Authority never intended to impose a minor penalty.  The  concession of the learned counsel appearing for the appellant before  the High Court was apparently erroneous.  It is now well-settled that  wrong concession made by a counsel before the court cannot bind the  parties when statutory provisions clearly provide otherwise.  [See  Union of India and Others v. Mohanlal Likumal Punjabi and  Others- (2004) 3 SCC 628].  The penalty imposed upon the  respondent, in our considered view, therefore, should be kept confined  to the reduction to the minimum of the time-scale of pay for a period  of three years with cumulative effect.  The effect of such a penalty has  been considered by this Court in Shiv Kumar Sharma v. Haryana  State Electricity Board, Chandigarh & Ors.  [AIR 1988 SC 1673] in  the following terms :

"We are unable to accept the above  contention.  The penalty was imposed on April 15,  1968, and, as a result of which, he was deprived  of the monetary benefit of one increment for one  year only.  The penalty by way of stoppage of one  increment for one year was without any future  effect.  In other words, the appellant’s increment  for one was stopped and such stoppage of  increment will have no effect whatsoever on his  seniority.  Accordingly, the Board acted illegally  and most arbitrarily in placing the juniors of the  appellant above him in the seniority list and/or  confirming the appellant in the post with effect  from Dec.1, 1969, that is, long after the date of  confirmation of the said respondents Nos.2 to 19.   The question of seniority has nothing to do with  the penalty that was imposed upon the appellant.   It is apparent that for the same act of  misconduct, the appellant has been punished  twice, that is, first, by the stoppage of one  increment for one year and, second, by placing  him below his juniors in the seniority list." The ratio of the said decision is applicable to the fact of the  present case also.  

In this view of the matter, indisputably, the respondent was  entitled to be considered for promotion after a period of three years.   We have, however, been informed that he has since been promoted to  the rank of Commandant.   

       We, therefore, in modification of the order of the High Court that  the punishment which could have been imposed upon the respondent  herein was reduction of pay for the period of three years with  cumulative effect and, thus, if his case is considered for promotion  after the said period, no further direction is required to be issued.  We  set aside the directions of the High Court to the effect :

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"The petitioner shall be entitled to the  seniority on the basis of DPC which was held on  07.04.1987 when his immediate junior was  promoted to the rank of Second-In Command.   The petitioner shall also be entitled to all  consequential benefits which stood denied due to  punishment of loss of seniority",    

and direct that the punishment shall be reduction of pay to the  minimum of the time scale of pay for a period of three years with  cumulative effect  

With the aforesaid modification, the appeal is allowed.  However,  in the facts and circumstances of this case, there shall be no order as  to costs.