Sunday, 23 February 2020

What is distinction between order withholding increment with cumulative effect and one withholding increment without cumulative effect?

 The difference between an order withholding increment with cumulative effect and the one withholding increment without cumulative effect has been succinctly explained by the Hon'ble Apex Court in the case of Punjab State Electricity Board, Now Punjab State Power Corporation Ltd. vs. Raj Kumar Goel, reiterating the view taken in the case of Uttam Kumar vs. Delhi Jal Board, reported in MANU/DE/0135/2001 : 2001(4) S.C.T. 136: 2001 IVAD (Delhi) 166. The Hon'ble Apex Court has held that when increment is withheld without cumulative effect, it is in the realm of minor penalty and when it is done with cumulative effect, it could be in the compartment of major penalty. It further held that in the latter case, there is permanent postponement of the increment and in the former case, the increment withholding is only for a specific period and it is required to be released after expiration of the period for which the increment is directed to be withheld. That would mean that when the increment is directed to be withheld without cumulative effect, there would be only suspension of increment for the period for which it is withheld and the moment withholding period expires, the suspension of the increment would stand removed and that increment would be payable along with the increment payable in the year in which the withholding effect disappears.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 425 and 541 of 2018

Decided On: 23.07.2019

 Nilkanth Dhyanoba Jogdande Vs.  Panjabrao Deshumukh Krishi Vidyapeeth

Hon'ble Judges/Coram:
S.B. Shukre and S.M. Modak, JJ.

Citation: 2020(1) MHLJ 897


1. Both the petitions involving common issue are being disposed of by common judgment.

2. Heard. Rule. Rule made returnable forthwith. Heard finally by consent.

3. This is a case wherein, as rightly submitted by the learned counsel for the petitioners and in disagreement with the argument of learned counsel for the respondent, the order dated 1.11.2013 has been wrongly interpreted to be an order which withholds the increments due and payable to the petitioners permanently with cumulative effect, amounting to major penalty.

4. A bare perusal of operative portion of the order dated 1.11.2013 is sufficient to convince anybody that the order has no cumulative effect and it withholds the increment temporarily and, therefore, it only amounts to minor penalty.

5. The difference between an order withholding increment with cumulative effect and the one withholding increment without cumulative effect has been succinctly explained by the Hon'ble Apex Court in the case of Punjab State Electricity Board, Now Punjab State Power Corporation Ltd. vs. Raj Kumar Goel, reiterating the view taken in the case of Uttam Kumar vs. Delhi Jal Board, reported in MANU/DE/0135/2001 : 2001(4) S.C.T. 136: 2001 IVAD (Delhi) 166. The Hon'ble Apex Court has held that when increment is withheld without cumulative effect, it is in the realm of minor penalty and when it is done with cumulative effect, it could be in the compartment of major penalty. It further held that in the latter case, there is permanent postponement of the increment and in the former case, the increment withholding is only for a specific period and it is required to be released after expiration of the period for which the increment is directed to be withheld. That would mean that when the increment is directed to be withheld without cumulative effect, there would be only suspension of increment for the period for which it is withheld and the moment withholding period expires, the suspension of the increment would stand removed and that increment would be payable along with the increment payable in the year in which the withholding effect disappears.

6. There is more elucidation of the point put across by us in paragraphs 11, 12 and 13 of the judgment of the Hon'ble Apex Court in the said case Punjab State Electricity Board which is reproduced thus:

"11. At the very outset, we may clearly state there is no discord or dispute over the exposition of facts. The controversy has arisen with regard to implementation of the order of punishment imposed by the authority on the delinquent employee. The courts below have opined that though it is mentioned in the order of punishment that there is stoppage of five increments without cumulative effect which is a minor punishment yet the manner of implementation converts it to a major punishment. There can be no cavil over the proposition that when a punishment of stoppage of an increment with cumulative effect is imposed, it is a major punishment. In this regard, we may refer with profit to the decision in Kulwant Singh Gill v. State of Punjab, MANU/SC/0658/1991 : 1991(2) S.C.T.30 : 1991 Supp(1) SCC 504 wherein it has been held that withholding of increments of pay simpliciter without any hedge over it certainly would be a minor punishment but withholding of increments with cumulative effect, the consequences being quite hazardous to the employee, it would come in the compartment of major punishment. Proceeding further the two Judge Bench stated thus:

"But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent."

12. After so observing, the Court treated the said punishment to be a major penalty. In said case while interpreting clause (V) of Rule 5 of the same regulations, the Court did not accept the reasoning of the judgment rendered by the Division Bench of the Punjab and Haryana High Court in Sarwan Singh v. State of Punjab and Ors., MANU/PH/0408/1985 : ILR,1985 (2) P & H 193.

13. At this juncture, reference to Punjab State & Others v. Ram Lubhaya, 1983(2) SLR 410 would be apposite. The High Court has correctly opined as follows:

"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 L 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 L 5, then in that case for two years he will continue to get L 100 per month but after the expiry of two years, he will get at the time of next increment, L 115, including the increment for the past two years during which period they remained withheld..."

7. In view of above, we find that the order dated 1.11.2013 is only in the nature of minor penalty as it stops the increment only for a period of two years without any cumulative effect and as such, at the expiration of the stoppage period, all increments, the previous two increments and also the increment due for the year in which the withholding effect has disappeared shall be payable to the petitioners and we hold so. We further find that the order dated 1.11.2013 withheld increments payable to the petitioners only for the year 2013 and 2014 and, therefore, the increment due and payable to the petitioners for any period previous to the year 2013, would have to be paid to them and if at all it has not been paid, we would hold that same would have to be paid to the petitioners. We have been informed by the learned counsel for the petitioners that the increment which was due and payable to the petitioners on 1st July, 2011 has not been paid to them and it would be necessary now for us to direct the payment of this increment to the petitioners.

8. The petitions thus stand allowed.

9. It is directed that the increment which is due and payable to the petitioners on 1st July, 2011 shall be paid to them and it is further directed that the increments payable to the petitioners for the year 2013 and 2014 shall be paid to them in the year in which the stoppage of increment has come to an end and that would be done along with the increment payable to the petitioners for that year as well.

10. Rule is made absolute in these terms. No costs.


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