1980 PLP (C (PLC(CS))

The appellant appealed against the order of penalty but got no redress. Thereafter he continued to make representation, and, in his own words, pointed out illegalities in the order of penalty as a result of which Financial Adviser Defence on 9th July, 1974 passed an order which in the revised form was received by the appellant on 25th November, 1974. This order in the revised form reads as follows :-- The undersigned is directed to refer to the correspondence resting with M. A. G's O. M. No. 271,/AN/Cl-V1-Part, dated the 13th June, 1974, on the above subject and to state that appeal dated the 18th March, 1912; from MO.. S. M. Waqi Accountant (Now DACMA) against the punishment of reduction by three stages in the time scale of Accountants grade with effect from 6th June, 1962 for good, awarded to him by the M. A. G. has been consider ed. It has been decided by the F. A. (Defence) to curtail the punishment for the period from 6th June, 1962 to 5th June; 1972, i.e. for 10 years. The appellant has contended that the order of penalty passed on 9th September; 1962 whereby the appellant's pay was reduced by three stages in the time scale of Accountant with effect from 6th June, 1962 was illegal and void inasmuch as it violated the provision of F. R. 29 which makes it mandatory for the punishing authority to state the period for which it shall be effective and whether on restoration it shall operate to postpone the future increments and if so to what extent. The appellant also urged that the orders of keeping the appellant under observation for one year and debarring him from holding an independent charge of a sub-office for one year were also illegal inasmuch as no rule provides the imposition of such a penalty.

3. The learned counsel for the respondents has charged that the original order of penalty was passed on 6th June, 1962 and the appeal of the aggrieved Government servant was rejected soon thereafter and therefore, the appellant cannot invoke the jurisdiction of this Tribunal in view of the bar placed by proviso (c) to subsection (1) of section 4 of the Service Tribunal Act, 1973, which provides that no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. The learned counsel for the appel lant on the other hand, contends that the original order of penalty and the appellate order were ipso facto invalid being in violation of F. R. 29, that have no validity and, therefore, the order passed in 1974 whereby the period of punishment was fixed at 10 years gave the appellant a fresh cause of action and consequently the Tribunal is not debarred from enter taining this appeal which is otherwise within time from the date of communication of the order of 1974.

4. In view of the clear provision of proviso (c) to section 4 (1) of the Service Tribunal Act, 1913 we are in agreement with the learned counsel for the respondents that the said order could not be challenged before the Tribunal as it was made prior to 1st of .July, 1969 but the subsequent order of 9th July, 1974 clearly gives the appellant a cause of action to challenge it. This order is not an order in appeal but is in fact a fresh order which has been passed without hearing the appellant and con sequently has no binding force. What was required by the appellant was that the order of 1962 should be made in conformity with F. R. 29.

5. We have heard the learned counsel for the appellant as also the learned counsel for respondents on the specific issues but we are of the opinion that F. R. 29 is not applicable to the appellant who is admittedly paid from Defence Service Estimate. F. R. 2 clearly provides that the Fundamental Rules shall apply to those Government servants whose pay is debitable to Civil Estimate. The note below F. R. 2 also leads to that conclusion. However. as it has been pointed out above, the order of Financial Adviser Defence passed in 1974 goes beyond the order of penalty passed in 1962 and therefore the appellant is entitled to remedy only on the interpretation of the order which was originally passed in 1962.

6. Although F. R. 29 is not strictly applicable .nevertheless, this rule lays down the common principle to make clear the order of the punishing authority. We are, therefore, left only with the job of interpreting the order of 1962 to settle the matter finally. The order does not specify the period for which it shall be effective nor does it explain whether it will operate to postpone future increments and if so to what extent. The learned counsel for the respondents contends that this order is for indefinite period and that the appellants, pay having been reduced to three stages should have remained there for all times. The learned counsel for the appellant, on the other hand, is of the view that the order being incomplete the duration of penalty should be understood to be for one year only and that the appellants, .pay which was reduced' by three stages had to be fixed after one year at such a figure as if no penalty was imposed and that thereafter he would have been entitled to future increments. In other words, his contention is that the order only penalises the appellant to surrender 12 months incremental pay and nothing more.

7. It is common principle of law that any dispute between the subject and the State where pecuniary issues are involved the interpretation has to be made in favour of the subject. In this view of the matter, therefore, we would interpret the order of 1962 in favour of the appellant to ;the extent of reasonability. As already stated, irrespective of the non applicability of F. R. 29 to the case of the appellant the authority while passing order of 1962 should have prescribed a period for which the pay of the appellant was intended to be reduced. Similarly it should have also been stated whether the punishment was to operate to postpone the future increments accruing to the appellant during the three years period of punishment. Since these were not done by the authority at the appropriate time, the intention of the authority has now to be found out on the principle just stated. We have already observed that the order of 19 74 is an independent, order and does not provide an explanation of the intention of 1962 order. After ignoring the 1974 order, the order of 1962 on the above principle has to be interpreted independently. According to us the intention of the punishing authority was to inflict punishment for a period of three years, i. e. equal to the number of stages by which the pay or the appellant had been reduced. This interpretation will be nearer to reasoning and also in line with the administrative order of the punishing authority keeping the appellant under observation only for the period of one year and also debarring him from holding indepen dent charge for an equal period. In this manner the original pay of the B appellant would be restored to him on the expiry of three years period. As regards increments accruing during period of three years, there being nothing in the order of 1962 to the contrary this shall be allowed to the ' appellant on due dates, i. e. the punishment shall not operate to postpone the future increments.

8. In view of the .above observation we set aside the order of 1974 and direct that effect may be given to our interpretation of 1962 order as above.

9. Parties to be informed.

10. N. A. CHOUDHURY (MEMBER).-I agree with the learned Chairman regarding the proposed order as contained in para. 8 of the judgment above. I would further add that the' appellate authority is clearly precluded from review and revision of his order on appeal already passed regarding the punishment. The authority on this point is Govern ment letter No. E. S. B. I1I-1/36, dated the 29th May, 1936, the relevant portion of which reads as follows :- "...In this connection it may be added that the intention of the orders contained in para. 2 (b) of this office letter No.ESB. 111-1/36, dated the 29th May, 1936, is that the appellate authority can order retrial of a case on the ground of flaw in procedure only on receipt of an appeal from the appellant. If no appeal has been preferred or if an appellate authority has already passed his order on an appeal, the case on the grounds of flaw in procedure is the Governor General-in-Council." The Financial Adviser (Defence), as appellate authority had already passed his order on the appeal of the accused vide Office Memorandum No. Accts/AN/35/63/1105, dated 2nd October, 1964. As such, the order of the Financial Adviser (Defence) dated the 9th July, 1974 is of no legal consequence and the revised period of ten years for reduction in time scale shall be inoperative. Consequently, the operative order in the punishment would remain the one passed in 1962.

11. Since the ,fundamental rules are not applicable to the appellant who was being paid from the Defence Estimates, no violation of the applicable rules and directions of the Government has been made which should vitiate the proceedings of disciplinary action, resulting in punish ment of reduction in the time scale.

12. I also agree with the Chairman in his view that the general sense of the operative rules would remain to the effect that the period for which a particular stoppage has to operate is necessary to specify. This view finds support from the provisions of the Civil Service Regulations, Para. 152. the relevant portion of which reads as follows :- "...A periodical increment should not be granted to an officer serving on Progressive pay, as a matter of course, or unless his conduct has been good. When an increment is withheld, the period for which it is withheld is at the discretion of the authority having power 'to withhold, who will also decide whether the postponement is or is not to have the effect of similarly postponing further increments . The provisions of the Civil Service Regulations are applicable to the personnel paid from the Defence Estimates.