1987 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑By this appeal the appellant has called in question the order of Secretary to Government of Sind, Communication and Works Department, dated 21‑3‑1985 whereby minor penalty of stoppage of three increments falling due on 1‑12‑1985, 1‑12‑1986 and 1‑12‑1987, with ‑cumulative effect was impose. The learned counsel for the appellant did not press the appeal on merits. He however, prayed for reduction in the penalty imposed upon the appellant. He also urged that the words "with cumulative effect" being inconsistent with the relevant rule be dropped from the impugned order. After hearing the arguments submitted by the learned counsel for the appellant as well as the learned Government counsel Mr. Rasheed Akhtar Qureshi, we dispose the appeal by short order, dated 2nd March, 1987 which reads as under:‑ "Appellant and his counsel Mr. Manzoor Ali Khan present. Mr.Rasheed Akhtar Qureshi for the official respondents also present. The learned counsel for the appellant does not press the appeal on merits. He, however, requests that penalty inflicted on the appellant be reduced and the words "with cumulative effect" be dropped. While maintaining the charge proved against the appellant, the penalty is reduced to the extent of withholding two increments, one due on 1‑12‑1985 and another due on 1‑12‑1986 without cumulative effect. Reasons to follow. Subject to the modification of the penalty as stated above the appeal is dismissed." Following are the reasons in support of the above short order: To begin with, it may be examined if the words "cumulative effect" mentioned in the impugned order are in consonance with the relevant provision of the rules. In this connection reference may be made to sub‑clause (ii) of clause (a) of sub‑rule (1) of rule 4 of the Sinai Civil Servants (E & D) Rules, 1973 (hereinafter referred to as the said rules). It reads as under: (ii) withholding, for a specific period, promotion of increment, otherwise than for unfitness for promotion or financial advancement, in accordance with the rules or orders pertaining to the service of post." Obviously the appellant has been visited with minor penalty of withholding of 3 increments under the above clause. It appears from the language of the said clause that the period for which the increments are withheld has to be specified in the order. In the instant case instead of mentioning the period, three increments due on 1‑12‑1985, 1‑12‑1986 and 1‑12‑1987 "were withheld" "with cumulative effect". In other words the said increments were stopped permanently, for all time to come. The question arises if the intention of permanent withholding of increment could be attributed to the clause referred to above. We have considered this point carefully. The withholding has to be ordered for specific period, which, in our opinion, does not mean permanently. The punishing authority has to be specific in deciding the period of punishment. In other words some definite period is to be indicated by the said authority in its order. The learned counsel for the appellant and the learned Government counsel also share this view. Accordingly the words "with cumulative effect" used in the impugned order run counter to the intention of the relevant rule reproduced above. If the said words are suffixed with the number of increments, the accused official will be deprived of the said increments permanently, which, as pointed above, cannot be the intention of the rule‑making authority. of Sind‑ in the S&GAD, bearing No.SOIX, REGIS&GAD) 4/14‑77, dated 27‑7‑1978. It is pertinent to reproduce para 3 of the circular, which reads as under: "After careful consideration of the above‑cited issues it has been decided to withdraw the existing discretion and to prescribe a uniform policy on the subject as follows:‑ "(i) Whenever increment is withheld, it shall have cumulative effect i.e., all increments accruing during the penal period would remain withheld for all time to come, and the next increment will become due only after the expiry of the period and on due date i.e. 1st December of the year. However, if there is an efficiency bar, the next increment falling due from 1st December, of the calendar year shall be drawn from the date or subsequent date from which the competent authority allow the civil servant to cross the efficiency bar." It is obvious that by the above circular the discretion vested in the competent authority under the said rules has been taken away and the said authority has been restricted to follow the so‑called uniform policy, namely whenever increment is withheld, it shall have cumulative effect. That is to say that it will stop for ever. Of course the instructions /directions issued by Government from time to time have the force of rules. But that does not mean that they will have the effect of amending or overriding the statutory rules. Since the instructions contained in the above circular, are not in confirmity with the statutory rules namely the Sind Civil Servants (E & D) Rules, 1973, they cannot be followed in preference to the said rules. If such arrangement is permitted, it is bound to create confusion in the Government Departments. Since the Government is not precluded from amending the rules the objective in the mind of the Government can be achieved by bringing suitable amendment in the statutory rules. Thus, if the discretion of the punishing authority is intended to be taken away or curtailed, it can be done only by amending the relevant rule and not by issuing the circular of above kind. We are, therefore, clear in our mind that the aforesaid circular does not have the effect of amending the said rules and consequently the instructions contained therein are of no effect. Coming to reduction of penalty it may be observed that the only charge for which the appellant has been punished is that he failed to check the measurements in accordance with rules. In other words it means that he displayed his inefficiency. Keeping this charge in view, we think that the penalty of withholding three increments is a bit severe. In our opinion if two increments, one falling due on 1‑12‑1985 and another on 1‑12‑1986 are withheld, such penalty will meet the ends of justice. Accordingly we reduce the penalty to two increments as stated above, without cumulative effect. Subject to this modification in the penalty, the appeal was dismissed with no order as to costs. A.E./117/Sr.E