SUPREME COURT OF INDIA
Union of India and Another
Vs
S.C. Parashar
Appeal (Civil) 1267 of 2006; Arising Out of Slp (C)No.23942/2003
(S. B. Sinha and P. K. Balasubramanyan, JJ)
24.02.2006
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.
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 :
"PENALTIES
The following penalties may,
for good and sufficient reasons and as hereinafter provided, be imposed on a
Government servant, namely :- Minor Penalties
(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.
(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
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- .
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. (relied on) 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 :
"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.