1996 PLP (C (PLC(CS))

4. Penalties. ‑‑‑(I) The following are the minor and major penalties, namely: (a) Minor Penalties: (i) Censure. (ii) Withholding for a specific period promotion or increment otherwise than for unfitness for promotion or financial advancement in accordance with the rules or order pertaining to the service or post. (iii) Stoppage for a specific period at an efficiency bar in the time‑scale otherwise than for unfitness to cross such bar. (iv) Recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders. (b) Major Penalties: (i) Reduction to a lower post or time‑scale or to a lower stage in a time scale. (ii) Compulsory retirement. (iii) Removal from service; and (iv) Dismissal from service.

9. The analysis of Rule 4 quoted above shows that the rules makers intended to classify the penalties into two categories The penalties taking affect the future benefits of a civil servant were considered to be minor penalties and those affecting the benefits or positions already achieved on the basis of previous service were considered to be major penalties. The minor penalties mentioned in sub‑clause (ii) of clause (a) of Rule 4 (1) are of two kinds:‑‑ ‑‑ Withholding promotion for a specified period. ‑‑ Withholding increment for a specific period. Whereas the major penalties stated in sub‑clause (i) of clauses (b) of the said rule are of three kinds:‑‑ ‑‑ reduction to a ‑lower post; ‑‑ reduction to a lower time‑scale; ‑‑ reduction to a lower stage in a time‑scale Thus, under the Efficiency and Discipline Rules, 1973 the penalties have been bifurcated and the competent Authority is allowed the discretion to impose one or more penalties keeping in view the nature and gravity of offence. Whereas under F.R. the above major and minor penalties were amalgamated. Thus, presently if an authority orders the reduction of a civil servant to a lower post for a specified period it will amount to imposition of two punishments of major and minor nature simultaneously as the employee will be deemed to have been awarded the major penalty of reduction to lower post and the minor penalty of withholding promotion for a specified period. Such a double punishment cannot be imposed by implication unless it is specifically awarded.

10. The punishment of, reduction to lower post is itself a major penalty whereby an employee looses the status, the seniority and the financial benefits of the senior post along with the major social set back of loss of reputation. To regain the senior post he may require considerable time and thereafter he will be placed at the bottom of the civil servants already working in the senior posts. Thus, the penalty of reduction to a lower post is sufficient deterrent with or without the addition of further minor penalty. Therefore, the word "shall" appearing in F.R. 29 can be presumed to be accordingly substituted by the term "may" with the enforcement of Government (Efficiency and Discipline) Rules, 1973.

11. By analysing the proposition from another angle if for the sake of argument it is believed that reduction to a lower post without specification of time shall be a permanent disability the provision will become self -contradictory. In F.R. 29 the reduction to lower post the reduction to lower grade and the reduction to a lower stages in a time scale are mentioned as penalties. It has been provided therein that time has to be specified for which these penalties will be operative. However, if the authority commits a mistake and does not specify the period for which the penalty may be effective it cannot be inferred that due to the mistake of the authority the employee may be doomed forever. There is another aspect that if a person is punished for reduction to lower stage in a time scale and the authority does not so specify the period, will it amount to freezing the salary at that point for all the years to come without the facility of annual increments. This cannot be the intention of the rule because this will be a negation of the word "time scale" the term "time scale" has been defined to be the progressive scale wherein the salary increases in stage from the minimum towards the maximum of the scale. So, if the reduction to a lower stage in a time scale without specification of period could not be taken to be a static fixation of salary for ever, similarly reduction to a lower post without any specified period would amount to reversion simpliciter. So, if F.R. 29 is deemed to be fully operative then the failure of the competent Authority to comply with the mandatory position shall be interpreted to the benefit of the employee and not the authority.

12. The competent Authority has got a right to award one or more of the penalties in accordance with the facts and circumstances of the case and to that extent F.R. 29 may be taken to be a permitting clause but with the introduction of rules in 1973 the obligatory term "shall" has lost its efficacy because it will amount to nullification of the classification of penalties and the conclusive paras of Rule 3 of the (E&D) Rules where the authority has been empowered to impose "ONE OR MORE" penalties. ,

13. The framer of the rules was conscious of the fact that period has to be specified when the promotions or increments are to be withheld and that is why in sub‑clause (ii) and sub‑clause (iii) of clause (a) of Rule 4 the term for a specified period has been mentioned but such phrase has not been added in said sub‑clause (i) of clause (b) intentionally and, therefore, such a phrase cannot be impliedly added by imposing F.R. 29.

14. Thus, we are of the opinion that the reduction to a lower post where the period is not specified shall amount to reversion to the lower post with no future effect and the person concerned will be entitled to be considered for promotion as and when the vacancy occurs in the higher post from which he was reverted. The obligatory "shall" in F.R. 29 will not be applicable to such cases where the competent Authority has not specified the period of penalty. Therefore, the appellant on reversion to the post of Assistant Sub‑Inspector shall rank senior most in the cadre on the basis of his total length of service and shall be entitled to promotion to the post of Sub‑Inspector as and when the vacancy occurs because failure to consider him for promotion would amount to the imposition of additional minor penalty of withholding promotion for certain period which is neither the intention of the prevailing rules nor it was the intention of the competent Authority in the case in hand.

15. In the light of the above discussion the appeal is partially accepted and the impugned order is modified to the extent that the demotion of the appellant shall have no incurring effect on his future career. No order as to costs. Parties be informed H.B.T./63/Sr.F Order accordingly