The petitioner is aggrieved by the order dated 24.12.2013 passed by the District Judge, Aligarh whereby a penalty of withholding of annual increment has been imposed against the petitioner with retrospective and cumulative effect for two years i.e. from 2012 under the provisions of Rule 23(1)(i) of the U.P. State District Court Service Rules, 2013 (hereinafter referred to as the Rules, 2013).
No departmental appeal has been filed by the petitioner. A preliminary objection has been raised by Shri Manish Goyal, learned counsel for the respondents that against the order of punishment an appeal lies to the High Court in terms of provisions of Rule 23 (9)(ii)(b) of the Rules, 2013.
This objection has been sought to be met by Shri Prakash Chandra Srivastava, learned counsel for the petitioner by submitting that the petitioner is covered by the Explanation to Rule 23(1), clause (i) of which provides that the following shall not amount to penalty within the meaning of this Rule:
"withholding of increment of a member of the service for failure to pass a departmental examination or for failure to fulfill any other condition in accordance with the Rules or orders governing the service."
The submission is that the petitioner is covered by the latter part of the clause (i) of the Explanation after the word 'or' namely, where the penalty of withholding of increment has been imposed for "failure to fulfill any other condition in accordance with the Rules or orders governing the service. It is submitted by Shri Srivastava that the charge against the petitioner was under the U.P. Government Servant Conduct Rules, 1956 for non maintenance of criminal file no. 953 of 2010 as a result of which the said file has been lost. According to him since he has failed to maintain the file and this forms a part of the conditions of service, therefore, he is covered by the Explanation and, therefore, no appeal will lie to the High Court as contemplated under the provisions of rule 23(9)(ii)(b) of the Rules, 2013.
I have considered the rival submissions of the learned counsel for the parties.
The power to impose the penalty of withholding of increment flows from the provisions of Rule 23(1) of Chapter VI of the Rules, 2013. Rule 23(1) of the Rules, 2013 under the head Major Penalties reads as under:
"Major Penalties:
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in time scale;
(iii) Removal from service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment."
If the submission of the learned counsel for the petitioner is accepted then the order of punishment imposed under Clause (i) of Rule 23(1) of the Rules, 2013 would become redundant as such a punishment can be imposed for misconduct and infarction of duties and non maintenance of file which results in the loss of the file altogether would also be covered by the said provision and therefore sub-rule (i) of Rule 23(1) would itself become otiose, as withholding of increment would no longer remain a penalty under the head Major Penalties. That could not have been the intention of the framers of the Rules. The Explanation (i) after the word 'or' namely "for failure to fulfill any other condition in accordance with the Rules or orders governing the service" cannot be given such a wide interpretation as to make it unworkable or render it to be in conflict with the main provisions or Rules or render the power of the disciplinary authority to impose the penalty of withholding of increment nugatory. The words "for failure to fulfill any other condition in accordance with the Rules or orders governing the service" would therefore have to be read in consonance with the preceding words of Clause (i) of the Explanation, namely, "withholding of increment of member of service for failure to pass a departmental examination", and it is only if the words following subsequently are read in consonance with the previous language of the Explanation that the Explanation could be read harmoniously otherwise the punishment of withholding increment as provided under the heading of major penalties under Rule 23(1)(i) of the Rules, 2013 would become thoroughly redundant and in no case would the disciplinary authority be able to impose the penalty of withholding of increment by way of punishment.
There is another aspect of the matter as to whether the word 'or' as used in clause (i) of the Explanation is to be used conjunctively or disjunctively. In its ordinary construction the word 'or' is read disjunctively and the word 'and' is conjunctive.
Having noticed the ordinary and common parlance meaning of the word 'or' to be disjunctive, what the Court has to examine is whether by adding the clause (i) to the explanation did the Rule making authority intend to oust altogether the penalty of withholding of increment. If the word in clause (i) of the Explanation following the words 'or' would suggest such an intent, but if that was the intention of the framers of the Rules, they would not have included the penalty of withholding of increments either as a Minor Penalty or as a Major Penalty, in which case appeal would automatically not lie. But the Rule makers did not do so and yet added an Explanation therefore the words in clause (i) following the word 'or' must be read in the context of the words preceding the word 'or' in clause (i) in order to make the Rule workable and the Explanation meaningful.
Right of appeal is a creature of the statute and once conferred becomes a substantive right. This right can however also be taken away but only by a statutory amendment. Prior to the coming into force of the U.P. State District Court Service Rules, 2013, the staff of the subordinate judiciary were governed by the provisions of the U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976. Rule 4(1)(d) of the Rules, 1976 provided for imposition of penalty of withholding of increments. Rule 4(1) read as follows:
"4. Punishments.- (1) The following penalties may, for reasons to be recorded in writing, be imposed by a District Judge on the ministerial or class IV employees of the subordinate Courts of the Judgeship :
(a) censure;
(b) fine of an efficiency bar;
(c) stoppage at an efficiency bar;
(d) withholding of increments;
(e) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence of breach of orders;
(f) reduction to a lower post, time scale or grade, or to a lower stage in a time scale or graded scale;
(g) removal from the service of the State which does not disqualify for future employment; and
(h) dismissal from the service of the State which ordinarily disqualifies for future employment.
Provided that the penalty specified in clause (a) or clause (b) may be imposed also by the Presiding Officer of a Subordinate Court on a member of the Staff attached to this Court:
Provided also that the penalty specified in clause (b) shall not be imposed on any person other than a class IV employees."
Sub rules (1) and (2) of Rule 7 of the Rules, 1976 provided for Appeals and read as follows:
"7. Appeals. - (1) A person against whom an order imposing a penalty specified in clause (a) or clause (b) of sub-rule (1) of Rule 4 has been passed by the Presiding Officer of a subordinate Court, other than the Court of District Judge, may file an appeal to the District Judge.
(2) A person against whom an order:
(a) imposing a penalty specified in any of the clauses (a) to (h) of sub-rule (1) of Rule 4 has been passed by a District Judge; or
(b) of enhancement of punishment has been made by a District Judge in appeal filed under sub-rule (1) of this rule; may file an appeal to the High Court."
The provisions of Appeals under the Rules 2013 are contained in Rule 23(9) which read as under:
9.Appeals - (i) A person against whom as order imposing a penalty specified in Rule 23(1) (i) and (v) of Minor Penalties has been passed by the Presiding Officer of subordinate court other than the court of district and Sessions Judge, may file an appeal before the Appointing Authority i.e. the District Judge.
10.(ii) A person against whom an order:
(a) Imposing a penalty specified in any of the clauses (i) to (v) of minor penalties and clauses (i) to (iv) of major penalties of Rule 23(1), have been passed by the appointing authority, i.e. the District Judge; or
(b) Of enhancement of punishment has been made by the appointing authority i.e. the District Judge in an appeal filed under Clause (i) of this sub-rule, he may file an appeal before the High Court"
A comparative study of the appellate provisions as contained in Rules 1976 and Rules 2013 would reveal that the Rules are pari-materia. Thus there is no amendment in the appellate provisions and the provisions of Rule 23(9) of the Rules 2013 do not in any manner annul or take away the substantive right of appeal of a staff of the subordinate judiciary who has been visited with the penalty of withholding of increments. Rule 23(9)(i) as well as clause (ii) contemplate the filing of appeal before the Competent Authority against any order passed under clauses (i) to (v) of Minor Penalties and clauses (i) to (iv) of Major Penalties of Rule 23(1). Rule 23(9) (ii) (a) and (b) provide for filing of an appeal before the High Court where such penalty has been imposed, by the District Judge, Clause (ii) under the head 'Minor Penalties' and clause (i) under the head 'Major Penalties' of Rule 23(1) provide for imposition of the penalty of 'withholding of increment'.
However, the explanation (i) to Rule 23(1) of the Rules 2013 provides that the following shall not amount to penalty within the meaning of this Rule, namely, (i) withholding of increment of a member of the service for failure to pass a department examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service.
Learned counsel for the petitioner then submitted that in view of the words following the word 'or', namely, "for failure to fulfil any other condition in accordance with the Rules or orders governing the service of the employee if the penalty of withholding of increment is awarded to a member of the service for failure to fulfil any other condition in accordance with the Rules or orders governing the service, the same shall not amount to penalty within the meaning of the Rules and therefore no appeal would lie under Rule 23(9) of the Rules, 2013.
The submission of learned counsel for the petitioner is thoroughly misconceived.
If that had been the intention, the penalty under Clause (ii) under the head Minor Penalties and the penalty in clause (i) under the head Major Penalties both providing for withholding of increment would not have been included in Rule 23(1) itself and therefore applying the rule of ejusdem-generis the words following the word 'or' in clause (i) of the Explanation must be read in relation with the words preceding the word 'or'. No other interpretation can be applied otherwise, the Rule itself would be self contradictory and antithetical to the provisions of Rule 23(1) which otherwise provides for imposition of penalty of withholding of increment either as Minor Penalty or as Major Penalty.
The words in clause (i) following the word 'or' therefore must be read in a manner so as not to be in conflict with the real intent of Rule 23(1) which provides for imposition of penalties, Minor as well as Major including the penalty of withholding of increments, and at the same time not depriving the delinquent employee the right of appeal to the High Court as contemplated in Chapter III Rule 4 (B)(6) of the Allahabad High Court Rules, 1952.
For the aforesaid reasons in my opinion the petitioner is not denied the right by operation of Explanation (i) to Rule 23(1) of filling an appeal before the High Court and, therefore, under the provisions of sub-rule (9)(ii)(b) of Rule 23 of the Rules, 2013 the remedy of the petitioner would be before the High Court by way of an appeal in a case where the order of penalty has been passed by the District Judge.
In the present case it is noticed that the impugned order of withholding of increment with cumulative effect retrospectively has been passed by the District Judge, Aligarh and, therefore, an appeal would lie to the High Court under the provisions of Chapter III Rule 4(B)(6) of the Allahabad High Court Rules, 1952. In this view of the matter the writ petition is dismissed on the ground of alternative remedy.
Shri P.C. Srivastava, learned counsel for the petitioner then submitted that the petitioner will file a departmental appeal before the Administrative Judge in terms of the provisions of the Rules of Court, 1952 but such an appeal would be time barred and therefore this Court may permit him to file a departmental appeal and such appeal may not be treated as time barred and may be decided on merits.
This Court has no problem in granting the request of the learned counsel for the petitioner to that effect. It is, therefore, provided that if the departmental appeal is filed by the petitioner within ten days of the receipt of the certified copy of this order before the High Court under Chapter III Rule 4(B) of the Rules of Court 1952, the same shall be decided on merit and shall not be dismissed on the ground of limitation.
Order Date :- 21.4.2014 o.k.