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]IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present :-

The Hon’ble The Chief Justice SUJOY PAUL

&

The Hon’ble Justice PARTHA SARATHI SEN

WP.CT 20 OF 2022

DEBNATH SWARNAKAR

-Vs-

THE STEEL AUTHORITY OF INDIA & ORS.

For the Petitioners: Mr. Debasis Lahiri, Adv.,

Mr. Supratim Barik, Adv.,

Mr. Sampaan Laha, Adv.

For the Respondent: Mr. L.K. Gupta, Sr. Adv.,

Mr. Subhasish Pachhal, Adv.

Hearing concluded on: 05.05.2026

Judgment on: 12 .05.2026

PARTHA SARATHI SEN, J. : –

1. In this writ petition as filed under Article 226/227 of the Constitution of

India the subject matter of challenge is the order dated 14.12.2021 passed in

OA 350/00110/2015 by the Central Administrative Tribunal, Kolkata Bench,

Kolkata (hereinabove referred to as the ‘said Tribunal’ in short) at the instance

of the writ petitioner/ original applicant. By the impugned order the said

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Tribunal declined to interfere with the finding of the disciplinary authority, the

first appellate authority and the reviewing authority in connection with the

departmental enquiry proceeding as initiated against the writ petitioner/

original applicant wherein the said three authorities found that the charge of

misconduct as framed against the delinquent has been proved and thus the

consequential punishment as imposed upon him is justified.

2. For effective adjudication of the instant lis we are at the very outset

propose to deal with some factual events which are as under:

(i) On 21.07.2003 a registered deed of lease was executed between the

respondent no. 1 authority (lessor) and the present writ petitioner and

one Smt. Lily Swarnakar [lessee(s)] whereby and whereunder two

numbers of quarter, particulars of which are mentioned in the

schedule of the said deed of lease, were leased out in favour of the

said lessee(s). It is pertinent to mention herein that at the time of

execution and registration of the said deed of lease the first lessee that

is the writ petitioner/ original applicant was employed with the

respondent no. 1 authority as Senior Technician attached to wagon

repair shop of the self same authority.

(ii) Sometimes in the year 2010 and 2011 the respondent no. 1 authority

and/or its instrumentalities noticed that the lessee no. 1 that is the

writ petitioner/ original applicant herein has constructed a brick wall

structure and raised a fencing by encroaching the land of the

respondent no. 1 authority without any permission and accordingly,

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by issuing several letters namely; letters dated 19.11.2010,

21.01.2011 and 08.06.2011, the writ petitioner was requested to

remove the fencing and the wall with a further request not to

encroach any land of the respondent no. 1 authority.

(iii) Since the writ petitioner/ original applicant did not adhere to the

request of the respondent authorities as issued to him under cover of

the aforementioned letters, a show-cause notice dated 09.09.2011

was served upon the writ petitioner/ original applicant.

(iv) Under cover of his letter dated 13.09.2011 the writ petitioner/ original

applicant replied to such show-cause however, the same was not

accepted by the respondent authorities which culminated issuance of

a charge-sheet dated 01.11.2011 together with a statement of

allegation levelled against him.

(v) The writ petitioner/ original applicant under cover of his letter dated

08.11.2011 made an attempt to justify his alleged action however,

such explanation was not accepted by the respondent authorities and

accordingly, on 29.11.2011 the respondent authorities initiated

enquiry proceeding against the writ petitioner on the basis of the

charge as framed against him vide charge-sheet dated 01.11.2011.

(vi) In the enquiry proceeding the writ petitioner/ original applicant

participated and put his all plausible defense however, the enquiry

officer on conclusion of such enquiry proceeding in his report dated

07.09.2012 came to a finding that the charge as against the writ

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petitioner regarding “unauthorized use of company’s land” has been

established.

(vii) The disciplinary authority on receipt of the report of the said enquiry

proceeding and on consideration of the submission in writing as made

by the delinquent came to a finding that the alleged misconduct of the

writ petitioner/ original applicant namely “unauthorized use of

company’s land” is duly proved and thus imposed a punishment of

“reduction of existing basic pay by 1(one) stage in his existing scale of

pay” with cumulative effect as a disciplinary measure with effect from

the date of imposition of punishment.

(viii) The writ petitioner/ original applicant preferred a departmental

appeal before the appellate authority which was also not considered

favourably by the appellate authority by its order dated 24.12.2012.

(ix) Challenging the finding of the enquiry officer and the punishment as

imposed by the disciplinary authority as well as the appellate

authority a review petition was preferred before the reviewing

authority which came to be disposed of on 28.10.2014 whereby and

whereunder the said reviewing authority found no reason to interfere

with the punishment as imposed against the writ petitioner/ original

applicant.

(x) By preferring OA 350/00110/2015 the writ petitioner/ original

applicant impugned all the aforementioned orders of the said

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authorities however, the same was not again considered favourably by

the said Tribunal.

3. At the time of hearing Mr. Lahiri, learned Advocate appearing on behalf of

the writ petitioner/ original applicant at the very outset draws attention of this

Court to page nos. 64 to 78 of the instant writ petition (Annexure P-2) being a

copy of Sail Scheme for Leasing of Houses to Employees, 2000 (‘Scheme’ in

short). Attention of ours is drawn to Clauses 5.4, 8.2 and 17.3 of the said

Scheme. It is argued on behalf of the writ petitioner/ original applicant that on

conjoint perusal of the said clauses of the said Scheme it would reveal that the

appurtenant land (beyond 1.5 times of plinth area) to the leased out quarter

was permitted to be used for horticultural purpose by the respondent no. 1

authority.

4. Further attention of ours is also drawn to Annexure P-19 of the instant

writ petition being a copy of the aforesaid registered deed of lease dated

21.07.2003 more specifically, the schedules thereof. It is further submitted on

behalf of the writ petitioner/ original applicant that on careful perusal of the

two schedules of the said registered deed of lease it would reveal that the plinth

area(s) (328 sq.ft.) of the leased out quarters are/ were situated on piece/pieces

of land measuring about 988 sq.ft. It is further submitted that in the event the

aforementioned clauses of the said Scheme are compared with the schedules of

the said registered deed of lease, it would reveal further that the lessees of the

said two quarters were permitted to use the appurtenant land adjoining to the

said quarters for horticultural purpose and, therefore, the charge-sheet dated

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01.11.2011 together with statement of allegation labeled against the writ

petitioner/ original applicant alleging “unauthorized use of company’s land”

has got no basis at all which the said Tribunal failed to visualize, and thus, a

serious miscarriage of justice occurred for non-consideration of relevant

materials which may be interfered with in judicial review.

5. In his next fold of submission Mr. Lahiri contends before this Court that

on execution of the aforementioned registered deed of lease in favour of the writ

petitioner and his wife in respect of the schedule mentioned two quarters a

contractual relationship between the respondent no.1 authority and the writ

petitioner and his wife was established. It is further submitted that for the sake

of argument even if it is admitted that there occurred a breach of covenant on

the part of the lessee(s) in respect of the said registered deed of lease, the

proper course of action would be on the part of the respondent authorities to

initiate a proceeding under the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (hereinafter referred as the ‘said Act’ in short). It is

further argued for the alleged violation of the terms and conditions of the said

registered deed of lease the respondent authorities wrongfully resorted to

Clause 29 (Acts of misconduct) of the standing order of 1997 (‘standing order’

in short) which is not legally permissible and is beyond the scope of a

disciplinary proceeding as wrongly initiated by the respondent authority. In

this regard, reliance is placed upon a judgment of Bombay High Court in the

case of Nandita B. Palekar vs. Y.S. Kasbekar & Ors. reported in 1985

Mh.L.J. 405.

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6. Drawing attention to paragraph 7 of the impugned judgment it is further

submitted on behalf of the writ petitioner/ original applicant that the said

Tribunal while passing the impugned order considered Clause 13.6 of the said

Scheme which prohibits a lessee to encroach in a common portion or service

area. It is further submitted that the said Tribunal however failed to observe

the charge-sheet dated 01.11.2011 as submitted against the writ petitioner/

original applicant where the charge levelled against the writ petitioner was

“unauthorized use of company’s land” and not encroachment of common

portion which is prohibited. It is thus submitted on behalf of the writ

petitioner/ original applicant that the said Tribunal while passing the

impugned order failed to differentiate the true meaning and implication of

encroachment of a common portion and “unauthorized use of company’s land”

and thus misdirected itself while passing the impugned order causing serious

miscarriage of justice.

7. In course of his argument Mr. Lahiri further draws attention of this Court

to paragraph nos. 17 to 20 of the instant writ petition. It is submitted that in

the said paragraphs a specific pleading has been made on behalf of the writ

petitioner/ original applicant that the alleged misconduct as mentioned in the

said charge-sheet is no way connected in faithful discharge of his duty and

service and, therefore, the respondent authorities ought not to have proceeded

with the said enquiry proceeding on the basis of a charge which is not

sustainable in the eye of law. It is thus submitted that since the writ petitioner

has not done any misconduct in relation to his service within the meaning of

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Clause 29 of the said standing order, the instant writ petition may be allowed

by quashing the order impugned as well as the orders as passed by the

disciplinary authority, appellate authority and the reviewing authority.

8. Per contra, Mr. Gupta, learned Senior Advocate appearing on behalf of the

respondent authority and its instrumentalities also places his reliance upon

page nos. 98 and 99 of the instant writ petition being the copy of the charge-

sheet dated 01.11.201 together with statement of allegation levelled against the

delinquent. It is submitted that from the said charge-sheet as well as the

statement of allegation it would reveal that the writ petitioner and his wife were

given two quarters on lease however, the departmental authorities have found

that the writ petitioner had constructed a brick wall structure as well as net

fencing over the land of the respondent no. 1 authority encroaching thereby to

the extent of 4620 sq.ft. which tantamount to an act of misconduct within the

meaning of Clause 29(xix) of the said standing order. It is submitted that from

the materials as placed before this Court it would reveal further that despite

issuance of several letters of request by the officials of the respondent no. 1

authority the writ petitioner/ original applicant was bent upon not to remove

such illegal construction and fencing and thus, the submission of charge-sheet

dated 01.11.2011 against the writ petitioner/ original applicant by the

respondent authorities is very much justified.

9. It is further submitted that the reported decision of Nandita B. Palekar

(Supra) has got no manner of application in the instant lis. It is further

submitted that the ratio as decided in the case of Nandita B. Palekar (Supra)

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is quite distinguishable from the facts and circumstances as involved in the

instant writ petition inasmuch as in the said case the Hon’ble Bombay High

Court found that in absence of any rules for breach of discipline so as to

warrant initiation of disciplinary proceeding against the employees of the

authority for the violation of the terms of agreement no proceedings, criminal

or disciplinary can be initiated. It is further argued by Mr. Gupta that on

perusal of the Clause 29(xix) of the standing order it would reveal that

unauthorized use of company’s quarters of land by an employee of the

respondent no. 1 authority tantamounts to misconduct.

10. It is further submitted by Mr. Gupta that in course of enquiry

proceeding, the enquiry officer came to a factual finding with regard to

genuineness of the charge as framed against the delinquent and thus there

cannot be any occasion to discard such factual finding in judicial review in

absence of any contrary material on record. It is further argued by Mr. Gupta

that the disciplinary authority, the appellate authority and the reviewing

authority prior to passing their respective orders had given due chance of

hearing to the delinquent, applied their independent minds over the subject

matters as placed before them and thus, rightly held that the charge as framed

against the writ petitioner has been duly proved. It is submitted on behalf of

the respondents that in absence of any procedural regularity and/or any

materials to show that principle of natural justice has been violated in the in-

house proceeding against the writ petitioner/ original applicant, there is hardly

any scope to interfere with the decision of the enquiry authority, disciplinary

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authority, appellate authority and the reviewing authority as rightly held by the

said Tribunal in the impugned orders.

11. It is further submitted by Mr. Gupta that the punishment as

imposed upon the writ petitioner/ original applicant is no way disproportionate

to the charge as proved against the delinquent in terms of Clause 30(2)(a) of

the said standing order which deals with stoppage of increment in case of

major penalty. It is further submitted by Mr. Gupta that proper interpretation

of Clause 30(2)(a) of the said standing order indicates that in so many words

the disciplinary authority is not prohibited to impose stoppage of increment

with cumulative effect. Mr. Gupta thus submits that it is a fit case for dismissal

of the instant writ petition.

12. We have meticulously gone through the entire materials as placed

before us. We have given our due consideration over the submissions of the

learned Advocates for the contending parties.

13. On careful perusal of the said Scheme it reveals that a policy decision

was taken by the respondent authorities to grant long term lease of the

respondent no. 1’s houses and flats to its employees/ ex-employees/ spouses

of the deceased employees for gainful utilization of assets created by the

respondent no. 1 company. It further appears that while fixation of the

premium of such lease, another policy decision was taken by the respondent

no. 1 authority that the appurtenant land (beyond 1.5 time of plinth area of the

leased out premises) may be used by the lessee for horticultural purpose.

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14. At this juncture, if we look to the two schedules of the registered deed of

lease dated 21.07.2003 as has been executed in favour of the writ petitioner

and his spouse, it would reveal that under cover of the said two deeds of lease

quarter nos. 12T and 12S having plinth area of 328 sq.ft. each were leased out

to them and the said two quarters are situated on a piece of land measuring

about 988 sq.ft. each.

15. Materials have been placed before us that in the year 2010 and onwards

the respondent authorities found that the writ petitioner had constructed a

brick wall structure and made a fencing by encroaching the respondent no. 1

authority’s land without obtaining permission and accordingly, the delinquent

was repeatedly requested to remove such encroachment. On perusal of page

no. 84 of the instant writ petition being a copy of the letter dated 06.06.2011 it

reveals to us that the writ petitioner/ original applicant did not concede to

such request and on the contrary he had taken a stand that he had raised the

fencing after obtaining verbal consent from the higher officials of the

respondent no. 1 authority.

16. Sufficient materials have also been placed that even after receipt of the

show-cause letter dated 09.09.2011 the writ petitioner/ original applicant was

found to be adamant in not removing the illegal construction as well as shifting

of the fencing within permissible limits as a result whereof he was served with

a charge-sheet dated 01.11.2011 together with statement of allegation labeled

against him.

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17. At the time of hearing learned Advocate appearing on behalf of the writ

petitioner/ original applicant placed reliance upon the judgment of the Bombay

High Court in the case of Nandita B. Palekar (Supra). It is strongly contended

that the alleged action of the writ petitioner/ original applicant by no stretch of

imagination can be terms as “an act of misconduct”. It has been argued further

that for the alleged violation of the terms and conditions of the registered deed

of lease an appropriate action might be taken under the said Act of 1971 and

not by way of a disciplinary proceeding which the Tribunal miserably failed to

visualize.

18. In order to assess as to whether the proposition of law as decided in the

case of Nandita B. Palekar (Supra) as decided by a Division Bench of the

Bombay High Court is at all applicable in the case or not, we propose to look to

some of the relevant paragraphs of the said judgment which are quoted

hereinbelow in verbatim:

“4. The tenements, one of which was allotted to the

appellant, were admittedly constructed under the Low

Income Group Housing Scheme and could be allotted to

any of the applicants eligible under the Rules irrespective

of whether they were employees of the Board or not. In

other words, the allotment was not restricted to the

employees of the Board. In pursuance of the allotment, the

allottees were put in possession of the tenements on

payments of the prescribed amount and upon executing a

hire purchase agreement agreeing to be bound by the rules

governing the Board. The agreement and the rules merely

stipulate that upon breach of the terms the allotment was

liable to be cancelled and the allottee evicted from the

tenement. No other consequence of the breach of the

condition of the allotment is laid down by the rule, or

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agreed to between the parties. Upon breach of the terms of

the agreement, no proceedings criminal or disciplinary are

envisaged against the allottee of the tenement either under

the agreement or the said scheme. If any allottee other

than an employee of the Board were to commit a breach of

the agreement such as is now alleged against the

appellant, the Board could not have taken any action

except cancelling the allotment and seeking eviction of the

allottee from the tenement. Merely because the appellant

happens to be an employee of the Board, she cannot be

visited with any further civil consequences. For a variety of

reasons, as person may not be able to fulfil the terms of

the agreement. Although the allottee may have undertaken

to pay the instalments of the hire purchase amount due

under the agreement, he may not able to honour that

agreement; should such a person be exposed to

disciplinary action when there is no specific rule of conduct

to that effect ? What would have been the position if the

tenements were allotted exclusively to the employees of

the Board under a scheme specially formulated for its

employees and the scheme itself laid down that breach of

any condition of such allotment would constitute breach of

discipline, it is not for us to consider in this case.

Admittedly there is no specific rule of conduct or discipline

rendering the breach of such agreement misconduct. The

obligations arising under the said scheme are purely

contractual. A breach of contract even if deliberate cannot,

in the circumstances referred to above be deemed to be a

breach of discipline so as to warrant initiation of

disciplinary proceedings against the employees of the

Board. We are however clear in our mind that in the

absence of any such specific stipulation or rule, no greater

liability could be imposed upon the employees than what

could be imposed on other allottees who are not the

employees of the Board. Imposition of any such additional

liability on the employees of the Board would be

unreasonable. Even though the employees of the Board

may from a class by themselves, in the absence of a

specific rule or stipulation to that effect, upon contravening

the terms of the said agreement no disciplinary

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proceedings could be taken for it is not breach of discipline

but breach of contract.

5. When the reversion of an employee is by way of

punishment it must be for breach of discipline or

misconduct. The impugned reversion is for contravention of

the conditions of allotment of a tenement. The allotment of

tenement in favour of the appellant is not in the course of

the employment or by virtue of the employment; it is made

in her favour as in favour of any other member of the

public. Any contravention of the conditions of such

allotment is outside the scope of the appellant's

employment and also not related to any question of

discipline. Such contravention cannot be a ground for

taking any disciplinary proceedings against her.

6. In Indian Express and Chronicle Press v. M. C. Kapur

[1974-II L.L.J. 240 at 242], the employee who was a lino-

operator in the employer-company and was also a treasure

of the Employees Co-operative Society charged with riotous

and disorderly behaviour outside the working hours. On

enquiry he was found involved in financial irregularities

and defalcation of funds of the Co-operative Society and

his services were terminated by the Company. When the

Company made an application under S. 33(2)(b) of the

Industrial Disputes Act, 1947 for approval of the Industrial

Tribunal, the Tribunal found that the Co-operative Society

was altogether an independent concern in which the

Company had no interest and over which it had no control

and that the employee's conduct in regard to Co-operative

Society's affairs did not affect the working of the

Company. The Tribunal held that although the report of the

Enquiry Officer was not mala fide or arbitrary, "the

employee's misconduct was outside the purview of the

Standing Orders governing him". The Tribunal therefore

declined to approve the dismissal of the employee. The

Supreme Court on appeal upheld the order of the Tribunal

as fully justified observing :

"No one charged ... (the employee) with riotous or

disorderly behaviour during the working hours. The only

other head under which he could be charged was that he

had committed an act subversive of discipline. The charges

which were preferred against him did not seem to relate,

in any manner, to the question of discipline."

The Court further observed :

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"..... We are wholly unable to accede to the contention ......

that the charges which were preferred and which were

found proved by the Enquiry Officer and on the basis of

which the dismissal was ordered by the General Manager,

constituted acts subversive of discipline."

Even in the instant case there is no rule of conduct or of

discipline which renders the contravention of the

conditions of allotment of a tenement under the Low

Income Group Housing Scheme an act of misconduct or of

breach of discipline warranting initiation of any

disciplinary proceedings. No punishment for contravention

of such a condition of allotment could, therefore, be

imposed on the appellant.”

(Emphasis Supplied by us)

19. As rightly argued by Mr. Gupta that the proposition of law as decided in

the case of Nandita B. Palekar (Supra) has no manner of application in the

instant case inasmuch as the Hon’ble High Court of Bombay rightly noticed

that in absence of any rule/scheme that violation of contractual obligation

would be deemed to be a breach of discipline so as to warrant initiation of

disciplinary proceeding against the delinquent, the authority is not empowered

to treat a breach of the terms of the agreement as misconduct.

20. At this juncture, we propose to look to Clause 29 of the said standing

order which reads as under:

“29. Acts of Misconduct:

Without prejudice to the general meaning of the term

“Misconduct”, the following acts and omissions shall be

treated as misconduct.

(i) ……..

(ii) …….

(iii) ……..

(iv) ……..

(v) ……..

(vi) ………

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(vii) ……..

(viii) …….

(ix) ………

(x) ……….

(xi) ……….

(xii) ……….

(xiii) ……….

(xiv) ……….

(xv) ………

(xvi) ………

(xvii) ……….

(xviii) ………

(xix) Unauthorised use of company’s quarters or

lands.

(xx) …......

(xxi) ………

(xxii) ………

(xxiii) ……….

(xxiv) ……….

(xxv) ……….

(xxvi) ………

(xxvii) ………”

21. Keeping in mind the implication of Clause 29(xix) of the said standing

order if we look to the factual aspects as involved in the instant writ petition, it

appears that on behalf of the respondent authorities sufficient materials have

been placed that the writ petitioner being a lessee of the leased out two

quarters had raised fencing beyond the permissible limit as mentioned in

Clause 8.2 of the said Scheme and has also raised pucca construction

unauthorisely over the land of the respondent no. 1 authority which has been

practically admitted by him in his reply letter dated 13.09.2011 to the show-

cause notice as well as in his reply letter dated 17.09.2012 to the disciplinary

authority in relation to finding of enquiry by the enquiry officer.

Page 17 of 26

22. We have also noticed that the enquiry authority, disciplinary authority,

appellate authority and the reviewing authority independently applied their

own minds while passing the impugned orders before the said Tribunal

regarding unathorised use of the respondent no. 1’s land by the delinquent

which we do not want to disturb in absence of any contrary materials sitting in

judicial review. On careful perusal of Clause 29(xix) of the said standing order

it further appears that the alleged action of the delinquent very much comes

under the purview of act of misconduct and, therefore, the writ petitioner/

original applicant cannot escape from the clutches of his misconduct by taking

recourse to the provisions of the said Act of 1971 stating that the alleged action

can be at best called violation of the terms and conditions of the said registered

deed of lease. In view of such, we thus find no reason to interfere with the

impugned order of the Tribunal whereby and whereunder the said Tribunal

declined to interfere with the orders impugned before it.

23. At this juncture, we propose to look to the proportionality of the

punishment as imposed by the disciplinary authority upon the delinquent. The

scope of interference with regard to the disproportionality of punishment in any

disciplinary proceeding has been lucidly dealt with by the Hon’ble Supreme

Court in the case of Union of India vs. P. Balasubrahmanayam reported in

(2021) 5 SCC 662 wherein the following has been held:

“21. It is correct to say that judicial forums do not sit as

an appellate authority to substitute their mind with the

mind of the disciplinary authority insofar as the finding is

concerned. However, disproportionality of punishment is a

concept certainly not unknown to service jurisprudence

Page 18 of 26

and has received consideration inter alia of this Court [S.R.

Tewari v. Union of India, (2013) 6 SCC 602 : (2013) 2

SCC (L&S) 893] . This is what the Tribunal proposed to do.

We may examine the finding of the Tribunal on the issue of

disproportionality of punishment and are in complete

agreement with the view that the punishment of

compulsory retirement was completely disproportionate

and harsh, keeping in mind the finding arrived at by the

disciplinary authority. It, thus, seems to appear that the

charges originally levelled may have persuaded the

authority concerned to impose punishment; losing site of

the fact that the allegations qua bribery had not been

found against the respondent.”

24. Similar such view was taken by the Hon’ble Supreme Court in the case of

S.R. Tiwari vs. Union of India reported in (2013) 6 SCC 602. On perusal of

the aforementioned judgment as passed in the case of P.

Balasubrahmanayam (Supra) and S.R. Tiwari (Supra) it thus appears to us

that the High Court sitting in judicial review is within its limit to interfere with

the disproportionate punishment in the event it is found that the same is

manifestly disproportionate, excessive and harsh.

25. At this juncture, if we look to Clause 30 of the said standing order it

reveals that stoppage of increment has been included in the category of major

penalties. The relevant portion of Clause 30 of the said standing order is as

under:

“30. Penalties for Misconduct:

The following penalties may for good and sufficient

reasons be imposed for misconduct.

(1)………

(2) The following shall constitute major penalties:

a) Stoppage of increment.

b) ……….

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c) ……….

d) ……….

Explanation:

…………………………….”

26. On perusal of the order of punishment dated 06.11.2012 (Annexure P-

15) of the writ petition it appears that the disciplinary authority imposed the

following punishment:

“Reduction of existing basic pay by 1(one) stage in

his existing scale of pay.”

Accordingly, the basic pay of Sri D. N. Swarnakar, Sr.

Technician, T. No. 338746, is hereby reduced by 1(one)

stage, i.e., from Rs. 19,216/- to Rs. 18,705/- per month in

his existing scale of pay from the date of this Order and

with cumulative effect as a disciplinary measure. His date

of normal increment will remain unchanged.”

27. On comparative study of Clause 30(2) of the standing order and the

punishment order dated 06.11.2012 it appears to us that Clause 30(2) of the

said standing order speaks about stoppage of increment as major penalty

however, it does not say that such stoppage of increment would be with

cumulative effect also. However, on perusal of the punishment dated

06.11.2012 as imposed upon the delinquent it appears that the disciplinary

authority imposed punishment upon the delinquent to the effect reduction of

existing basic pay by 1(one) stage in his existing scale of pay from the date of

the said order and with cumulative effect as a disciplinary measure.

28. At this juncture, the moot question arises for our consideration is that in

absence of any provision for stoppage/ reduction of increment with cumulative

effect the disciplinary authority is at all competent to impose such punishment.

The Hon’ble Supreme Court while passing the judgment in the case of Vijay

Page 20 of 26

Singh vs. State Of U.P.& Ors. reported in (2012) 5 SCC 242 had occasion to

consider similar such aspect and in doing so the following was held:

“11. Admittedly, the punishment imposed upon the

appellant is not provided for under Rule 4 of the 1991

Rules. Integrity of a person can be withheld for sufficient

reasons at the time of filling up the annual confidential

report. However, if the statutory rules so prescribe, it can

also be withheld as a punishment. The order passed by

the disciplinary authority withholding the integrity

certificate as a punishment for delinquency is without

jurisdiction, not being provided under the 1991 Rules,

since the same could not be termed as punishment under

the Rules. The Rules do not empower the disciplinary

authority to impose “any other” major or minor

punishment. It is a settled proposition of law that

punishment not prescribed under the Rules as a result of

disciplinary proceedings cannot be awarded.

12. This Court in State of U.P. v. Madhav Prasad

Sharma [(2011) 2 SCC 212 : (2011) 1 SCC (L&S) 300]

dealt with the aforesaid 1991 Rules and after quoting Rule

4 thereof held as under : (SCC p. 216, para 16)

“16. We are not concerned about other rule. The perusal

of major and minor penalties prescribed in the above Rule

makes it clear that ‘sanctioning leave without pay’ is not

one of the punishments prescribed, though, and under

what circumstances leave has been sanctioned without

pay is a different aspect with which we are not concerned

for the present. However, Rule 4 makes it clear that

sanction of leave without pay is not one of the

punishments prescribed. Disciplinary authority is

competent to impose appropriate penalty from those

provided in Rule 4 of the Rules which deals with the major

penalties and minor penalties. Denial of salary on the

ground of ‘no work no pay’ cannot be treated as a penalty

in view of statutory provisions contained in Rule 4 defining

the penalties in clear terms.”

(emphasis added)

Page 21 of 26

13. The authority has to act or purport to act in pursuance

or execution or intended execution of the statute or

statutory rules. (See Poona City Municipal

Corpn. v. Dattatraya Nagesh Deodhar [AIR 1965 SC 555]

; Municipal Corpn., Indore v. Niyamatullah [(1969) 2

SCC 551 : AIR 1971 SC 97] ; J.N. Ganatra v. Morvi

Municipality, Morvi [(1996) 9 SCC 495 : AIR 1996 SC

2520] and Borosil Glass Works Ltd. Employees'

Union v. D.D. Bambode [(2001) 1 SCC 350 : 2001 SCC

(L&S) 997 : AIR 2001 SC 378] .)

14. The issue involved herein is required to be examined

from another angle also. Holding departmental

proceedings and recording a finding of guilt against any

delinquent and imposing the punishment for the same is a

quasi-judicial function and not administrative one.

(Vide Bachhittar Singh v. State of Punjab [AIR 1963 SC

395] , Union of India v. H.C. Goel [AIR 1964 SC 364]

, Mohd. Yunus Khan v. State of U.P. [(2010) 10 SCC 539

: (2011) 1 SCC (L&S) 180] and Coal India Ltd. v. Ananta

Saha [(2011) 5 SCC 142 : (2011) 1 SCC (L&S) 750] .)

15. Imposing the punishment for a proved delinquency is

regulated and controlled by the statutory rules. Therefore,

while performing the quasi-judicial functions, the authority

is not permitted to ignore the statutory rules under which

punishment is to be imposed. The disciplinary authority is

bound to give strict adherence to the said rules. Thus, the

order of punishment being outside the purview of the

statutory rules is a nullity and cannot be enforced against

the appellant.”

(Emphasis Supplied by us)

29. In the case of Ravindra Kumar Rajnegi vs. State of Madhya Pradesh,

Th. Its Principal Secretary and Ors. reported in (2023) SCC OnLine MP

2414 a Single Bench of the High Court of Madhya Pradesh (authored by one of

us Hon’ble Justice Sujoy Paul, Chief Justice) as His Lordship then was in

Madhya Pradesh High Court while dealing with the self same subject held thus:

Page 22 of 26

“10. I am unable to persuade myself with the line of stand

taken by the State for the simple reason that if

respondents are talking about punishments inflicted on

the petitioner, they must satisfy that the said orders of

'Ninda' are indeed statutory punishments under the

Regulations. Learned Govt. Advocate could not point out

any provision from the regulation which includes 'Ninda' or

'censure' as a punishment. It is trite that only a

punishment prescribed in the rule can be treated to be a

'punishment' under the law. In (2012) 5 SCC 242 (Vijay

Singh v. State of U.P.) it was held that-

"20. Unfortunately, a too trivial matter had been dragged

disproportionately which has caused so much problem to

the appellant. There is nothing on record to show as to

whether the alleged delinquency would fall within the

ambit of misconduct for which disciplinary proceedings

could be initiated. It is settled legal proposition that (sic it

cannot be left to) the vagaries of the employer to say ex

post facto that some acts of omission or commission

nowhere found to be enumerated in the relevant rules is

nonetheless a misconduct. [See Glaxo Laboratories (I) Ltd.

v. Presiding Officer [(1984) 1 SCC 1 : 1984 SCC (L&S) 42

: AIR 1984 SC 505] and A.L. Kalra v. Project and

Equipment Corpn. of India Ltd. [(1984) 3 SCC 316 : 1984

SCC (L&S) 497 : AIR 1984 SC 1361] ]

21. Undoubtedly, in a civilised society governed by the

Rule of Law, the punishment not prescribed under the

statutory rules cannot be imposed. Principle enshrined in

criminal jurisprudence to this effect is prescribed in the

legal maxim nulla poena sine lege which means that a

person should not be made to suffer penalty except for a

clear breach of existing law."

The necessary corollary of the ratio of this judgment is that

only such punishments can deprive the petitioner from

right of consideration which are statutorily prescribed.

11. In this view of the matter, there was no valid reason to

deprive the petitioner from the right of consideration for

promotion. Right of consideration is not only a statutory

right it is a fundamental right under the Constitution

flowing from the Articles 14 and 16 of the Constitution

(See : (2022) 12 SCC 579 Ajay Kumar Shukla and Ors. Vs.

Arvind Rai and Ors.). The said right of petitioner is taken

away for a reason which cannot sustain judicial scrutiny.”

(Emphasis Supplied by us)

Page 23 of 26

30. It thus appears to us that it is the consistent view of the High Court as

well as the Hon’ble Supreme Court that it would be highly unjust to impose

penalty by a disciplinary authority against a delinquent which is not provided

either in the statute or in the rules dealing with punishment as a result of

misconduct proved in a disciplinary proceeding. We have no doubt in our mind

that in the event the authorities are permitted to impose punishment against a

delinquent which is not prescribed either in the statute or in the rule governing

the field, that would encourage arbitrary exercise of the power of the executive

which by no stretch of imagination can pass the yardstick of reasonableness.

31. The matter can be viewed from another angle also. In order to

understand the true implications of withholding increment simpliciter and with

cumulative effect, we propose to look to the reported decision of the Hon’ble

Supreme Court in the case of Punjab State Electricity Board now Punjab

State Power Corporation Ltd. vs. Raj Kumar Goel reported in AIR 2015 SC

533 : (2014) 15 SCC 748 wherein it was held thus:

“10. At this juncture, reference to Punjab

State v. Ram Lubhaya [Punjab State v. Ram Lubhaya,

(1983) 2 SLR 410] would be apposite. The High Court has

correctly opined as follows: (SLR p. 413, para 6)

“6. Before proceeding further, it will have to be

understood as to what is the effect of withholding of

increments simpliciter i.e. without cumulative effect, and

with cumulative effect. For example, if an employee is

getting Rs 100 at the time of imposition of penalty of

withholding of increments, and the penalty is without

cumulative effect for a period of two years and the annual

increments were to be of Rs 5, then in that case for two

Page 24 of 26

years he will continue to get Rs 100 per month but after

the expiry of two years, he will get at the time of next

increment, Rs 115, including the increment for the past two

years during which period they remained withheld.”

11. In Rang Nath Rai v. State of Bihar [Rang Nath

Rai v. State of Bihar, (1997) 2 PLJR 421] the Court while

interpreting the withholding of increments with cumulative

effect opined that the increments earned by an incumbent

were cut off as a measure of penalty forever in his upward

march for earning higher scale of pay. The clock is put

back to a lower stage in the time scale of pay and on

expiry of the punishment period the clock would start

working from that stage afresh and, therefore, the effect of

stoppage of increment with cumulative effect is that the

employee is reduced in his time scale of pay for the period

in question and it is in perpetuity during the rest of the

tenure of his service. As the increments that would have

earned for those years would not be counted in the time

scale of pay as a measure of penalty.

12. The High Court of Delhi in Uttam Kumar v. Delhi

Jal Board [Uttam Kumar v. Delhi Jal Board, (2001) 58

DRJ 342 : (2001) 4 AD (Del) 166] has laid down the same

principle and opined that there is a distinction between the

withholding of increment without cumulative effect and

withholding of increment with cumulative effect. The

former is in the realm of minor penalty and the latter is in

the compartment of major penalty. In the latter one, there

is permanent postponement of the increment, whereas in

the former one it is for a specified period, to be released

after expiration of the said period.

13. In our considered opinion the view expressed in

the aforesaid decisions is in consonance with the sound

legal principle and we approve them.”

32. If we apply the propositions of law as decided in the case of Punjab

State Electricity Board (Supra) in the facts and circumstances as involved in

the instant writ petition, it appears to us that the punishment as imposed

Page 25 of 26

upon the writ petitioner in relation to charge and the statement of imputation

appears to be bit harsh and shockingly dispropertioinate.

33. It thus appears to us that the disciplinary authority by its impugned

order of punishment dated 06.11.2012 was not at all justified in imposing

punishment upon the writ petitioner/ original applicant of reduction of existing

basic pay by 1(one) stage in his existing scale of pay from the day of passing of

the said order with “cumulative effect” in absence of any provision in Clause 30

of the said standing order.

34. In view of such, the finding of the disciplinary authority vide its order

dated 06.11.2012 regarding reduction of existing basic pay by 1(one) stage in

his existing scale of pay with the date of its order is found to be correct and is

hereby upheld however, the observation of the said authority regarding such

punishment with “cumulative effect” is hereby quashed and set aside.

35. The instant writ petition is thus allowed to the extent indicated

hereinabove.

36. Since it is reported at the bar that the writ petitioner has already retired

from his service on attaining his age of superannuation, the respondent no. 1

authority and its instrumentalities are directed to disburse the arrears of pay

and the retiral dues to the writ petitioner on account of modification of the

order of punishment in this writ petition positively within 180 working days

from the date of communication of the server copy of this judgment together

with simple interest of 3% per annum from the date of his superannuation till

Page 26 of 26

the actual payment. The time limit as fixed by this Court is preemptory and

mandatory.

37. Urgent photostat certified copy of this judgement, if applied for, be given

to the parties on completion of usual formalities.

I agree.

(SUJOY PAUL, C.J.)

(PARTHA SARATHI SEN, J.)