J.N. Dubey and I.P. Singh, JJ.

1. A common question of law for determination arises in these writ petitions and, therefore, they are being disposed of by a common order.

2. All the Petitioners belong to Water Resources Department of Government of Bihar. Disciplinary proceedings were initiated against them under Rule 55 of the Civil Services (Classification, Control and Appeal) Ruler, 1930 (for short Rules) in connection with certain irregularities allegedly committed by them while they were posted at Kharkai Canal Division, Adityapur. The Petitioners were served with show cause notices by their respective Enquiry Officers. They submitted their show cause and requested for dropping the proceedings. The Petitioners were served with formal chargesheet to which they also submitted their explanations. Not satisfied with the explanations the Enquiry Officers proceeded to enquire into the charges levelled against the Petitioners. The disciplinary proceedings continued for about two years and thereafter they were dropped on the ground that there has been undue delay in completion of the same and that the Enquiry Officer had superannuated. Thereafter, Petitioners were issued show cause notices purporting to be under Rule 55A of the Rules, which were also duly replied by them. The government found the Petitioners guilty of the charges levelled against them and awarded three punishments viz. Censure, Stoppage of two to seven annual increments with cumulative effect, and recovery of certain amount to compensate the loss incurred by the government. Feeling aggrieved the Petitioners have approached this Court for relief under Article 226 of the Constitution.

3. Heard the learned Counsel for the parties and perused the record.

4. Learned Counsel for the Petitioners have raised several points during arguments but it is not necessary for us to deal with all of them as the writ petitions can be disposed of on a short point viz. the penalty of stoppage of annual increments with cumulative effect could not be legally imposed on the Petitioners without taking recourse to the regular enquiry under Rule 55. The penalties which can be imposed on a civil servant are specified in Rule 49, which runs as under:

The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the Clauses (1) to (5) specified in Rule 14, namely:

(i) Censure

(ii) Withholding of increments or promotion, including stoppage at an efficiency bar.

(iii) Reduction to a lower post of time-scale, or to a lower stage at time-scale.

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

(v) Suspension.

(vi) Removal from the civil service of the Crown, which does not disqualify from future employment.

(vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment.

5. Rule 55 contains the general procedure to be followed for imposing penalty on a civil servant, while Rule 55A contains the summary procedure for imposing certain minor penalties on them. Rule 55A reads thus:

Without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clause (i), (ii) or (iv) of Rule 49 (other than an order based on facts which have led to his conviction in a criminal Court or by a Court Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that point), on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed.

Provided that the requirements of this rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.

6. A plain reading of Rule 55A would show that only the penalties specified in Clauses (i), (ii) and (iv) of Rule 49 can be imposed by following the procedure prescribed under this Rule. The penalties of censure and recovery of amount are specified in Clauses (i) and (iv) respectively of Rule 49 and, therefore, could be imposed on the Petitioners without taking recourse to the regular enquiry under Rule 55. Now it has to be seen whether the penalty of stoppage of annual increments with cumulative effect could also be imposed on the Petitioners in view of Clause (ii) of Rule 49 which provides for withholding of increments or promotion including stoppage at an efficiency bar. According to the learned Counsel for the Petitioners withholding of annual increments with cumulative effect is covered by Clause (iii) and not by Clause (ii) of Rule 49 and as the penalty specified in Clause (iii) could not be imposed by following summary procedure under Rule 55A the impugned orders cannot be legally sustained.

7. We are in agreement with the learned Counsel for the Petitioners that by withholding of two to seven increments with cumulative effect would mean that the two to seven increments earned by them were cut off as a measure of penalty for ever in their upward march for earning higher scale of pay. The clock was put back to a lower stage in the time scale of pay and on expiry of two to seven years the clock would start working from that stage afresh. Thus the effect of the impugned orders is that the Petitioners are reduced in their time scale by two to seven places and it is in perpetuity during the rest of the tenure of their service with the direction that two to seven years increments would not be counted in their time scale of pay as a measure of penalty.

8. The penalty of stoppage of annual increments with cumulative effect, in our opinion, is covered by Clause (iii) and not Clause (ii) of Rule 49 and, therefore, could not be legally imposed on the Petitioners without taking recourse to the regular enquiry under Rule 55. Our this view finds support from a decision of Supreme Court in Kulwant Singh Gill v. State of Punjab : 1991 Supp (1) SCC 504 [LQ/SC/1990/543] in which the Supreme Court held thus:

Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But Sub-rule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period that reduction will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v) If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned Counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. 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 implications 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 decision 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 effect would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab, P.C. Jain A.C.J. speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within Clause (v) of Rule 5 or in Rule 4.12 of Pubjab Civil Services Rules. It was further held that under Clause (v) of Rule 5 there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withheld with or without cumulative effect the government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that Clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly stating so. This preposterous consequence cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.

9. The impugned orders suffer from an error apparent on the face of the record and are, therefore, liable to be quashed.

10. In the result all the writ petitions succeed and are allowed. The impugned orders of the Respondents imposing punishment on the Petitioners under Rule 55A of the Rules are quashed. However, it will be open for them to proceed in the matter in accordance with law.

No order as to costs.