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Writ Petition No. 505 of 1959, decided on 25th May, 1960.
, Appendix IX, r. S‑Imposition of penalties including stoppage of increment by other than appointing authority‑Illegal.
Departmental instructions issued by authority not competent to frame rules‑Has no force of law.
‑Appellate proceedings whether and when can be, regarded as original proceedings.
There is a great deal of difference between the attitude of the authority that passes an original order and that of the‑authority that hears an appeal. Before the appellate authority the whole onus is on the appellant to show that the order appealed against is wrong. If he is unable to discharge that burden, his appeal is to be dismissed. If the appellate authority be unable to make up its mind as to whether the order was correct or not correct, the order will not be set aside. The appellate authority need not itself find the person proceeded against guilty. It may simply come to the conclusion that the inference of guilt was reasonably possible. Before the original authority, however, the whole onus is on the prosecution, who has to establish the guilt of the person proceeded against. From the mere fact that an appellate authority dismisses an appeal, it does not necessarily follow that it would have held the person proceeded against guilty if it was to make the original order itself. At least in cases where the appellate authority does not reach a positive conclusion itself as to the guilt of the person proceeded against, its order cannot be regarded as an original order. When the appellate authority is dealing with penal proceedings it must be satisfied beyond all shadow of doubt that there is no possibility of prejudice to the person proceeded against if the appellate authority regards appellate proceedings as original proceedings.
Nasim Hassan Shah for Petitioner
Mushtaq Hussain, A. A. G. for Respondents
Dates of hearing :12th and 13th April 1960.
.‑Inayat Shah Hashmi, the petitioner in this petition, was appointed an upper division clerk in 1942 and confirmed in 1945. He alleges, though it is not conceded by the respondent, i.e., the Military Accountant General, that orders of his accelerated promotion, subject to a qualifying examination, had been passed by the Military Accountant General and that it was for this reason that some enemy of leis succeeded in getting disciplinary proceedings started against him. On the 8th of July 1953, by the order of the Controller of Military Accounts, after a charge was framed and an inquiry held, the petitioner's increment was stopped for one year, without cumulative effect On the 27th of December 1953, he, was actually promoted as an accountant. A question arose as to whether the stoppage of increment was to affect his pay as upper division clerk or his pay as accountant. He himself took up the position that it should apply to his pay as accountant. This was agreed to by the authorities. Later, however, he took up the position that the fact of his promotion was a bar to the imposition of the penalty and he relied upon some provision in the Civil Services Rules. He filed an appeal to the Military Accountant General against the order of the Controller General dated the 8th July 1957, some time in March 1957. He sub mitted a further appeal to the Financial Adviser, Military Finance, which was withheld on the ground that it did not lie.
2. When screening committees were appointed a show‑cause notice was issued to him and he was summoned, but was discharged on his making representations to the higher authorities. Although he was discharged by the screening committee, he was served a notice by the Controller of Military Accounts to show cause why he should not be punished because he had been addressing representations, to higher authorities direct and, therefore, had been guilty of breach of discipline, and actually a penalty of stoppage of one increment was imposed on him by the Controller of Military Accounts on the 6th of August 1959.
3. In this writ petition the petitioner contends (1) that the orders of the Controller of Military Accounts dated 8th July 1953 and 8th August 1959 are ultra vires because he is not competent at all to impose any penalty on him, (2) that an appeal did lie against the order of the Military Account ant General to the Financial Adviser, and (3) that after he was promoted as an accountant his increment could not have been stopped on account of the penalty imposed on him as an upper division clerk.
4. As regards the first point, it is conceded on behalf of the respondent in the written statement that the Civil Services Rules apply. According to rule 5 of Appendix IX of the Civil Services (Classification, Control and Appeal) Rules, which admittedly applies to the present case, the penalties which are detailed in these rules and which include the stoppage of incre ment, may be imposed by the authority that has power to make the first appointment to the service to which the person proceeded against belongs. It is admitted that the appointing authority for the upper division clerks is not the Controller of Military Accounts but the Military Accountant General. The order of the Controller of Military Accounts would, therefore, be prima facie without legal sanction.
5. Learned counsel for the Respondent relies, in the first place, on para. 215 of what is called the Office Manual, which authorises the Controller to impose some penalties including the penalty of stoppage of increment in the cases of loss, over‑payment, or commission of financial irregularity, by members of the subordinate Services. Now, in the first place, this paragraph will not cover the case of misconduct of the nature attributed to the petitioner which was the basis of the punishment awarded. It is true that some financial irregularities were also included in the charge against the petitioner, but an important part of the charge was irresponsible conduct and insubordination. However‑, assuming that the charge against the petitioner was covered by para 215, still the paragraph would be of no avail to the respondent because it has not been shown to be a rule framed by a competent authority. It only contains instructions issued by the Military Accountant General who had no power to frame rules regulating the impo sition of penalties on members of subordinate Services. It was only the Governor‑General who, while the Government of India Act was in force, was entitled to frame rules relating to members of the Central Civil Services. The Central Government could also frame rules because of the authority conferred on it by rules 44 and 54 of the Civil Services (Classification, Control and Appeal) Rules, which were framed by the Governor‑General. Para. 215 has no force of law and can confer no authority on the Controller to impose penalties.
6. The second reply of learned counsel for the respondent to the first contention of the petitioner is that although the Controller of Military Accounts was not competent to impose a penalty, the matted had, so far as the first of the two impugned orders was concerned, gone to the Military Accountant General in appeal and as he has confirmed the order of the Controller in appeal, we can ignore the order of the Controller and regard the order of the Military Accountant General as an original order holding the petitioner guilty of misconduct. As already stated, against the order passed by the Controller on the 8th of July 1953, an appeal had been filed by the petitioner. This appeal had been filed in the year 1956. (The petitioner explained that he had been in the meantime making representations as to the penalty having become incapable of imposition on account of his promotion as accountant.) In the order by which the Military Accountant General dismissed the appeal of the petitioner, he said that he was not prepared to grant the request of the petitioner for rescission of the penalty awarded by the Con troller.
7. We do not find it possible to treat the order of the Military Accountant General as an original order. We are dealing with penal proceedings and we must be satisfied beyond all shadow of doubt that there is no possibility of prejudice to the petitioner if we regard appellate proceedings as original proceedings. There is a great deal of difference bet ween the attitude of the authority that passes an original order and that of the authority that hears an appeal. Before the appellate authority the whole onus is on the appellant to show that the order appealed against is wrong. If he is unable to discharge that burden, his appeal is to be dismissed. If the appellate authority be unable to make up its mind as to whether the order was correct or not correct, the order will not be set aside. The appellate authority need not itself find the person proceeded against guilty. It may simply come to the conclusion that the inference of guilt was reasonably possible. Before the original authority, however, the whole onus is on the prosecution, who bas to establish the guilt of the person proceeded against. From the mere fact that an appellate autho rity dismisses an appeal, it does not necessarily follow that it would have held the person proceeded against guilty if it was to make the original order itself. Then we have also to take into consideration the fact that the officer who originally passes an order has first to make up his mind as to whether he should initiate proceedings and frame a charge at all. The appellate authority who had dismissed the appeal may not on the facts of a particular case have taken upon itself the res ponsibility of initiating proceedings or of framing a charge though it may dismiss the appeal on the basis of the same facts. At least in cases where .the appellate authority does not reach al positive conclusion itself as to the guilt of the person proceeded against, its order cannot be regarded as an 'original order ands in the present case there is no positive finding by the Military Accountant General as to the guilt of the petitioner. What we have reproduced above as to the contents of the appellate order is the whole of what it contains. In a letter addressed by the Military Accountant General to the Controller in relation to a representation made by the petitioner, about a year after the appeal of the petitioner had been decided, there is a statement to the effect that the petitioner had been found guilty of irres ponsible conduct and insubordination, but the reference by these words may be only to The fact that the Controller bad found the petitioner guilty of a charge wherein this accusation was inclu ded, and, in any cases, the mere reference to improper conduct in a letter addressed to the Controller long after the appeal is decided, does not necessarily lead to a conclusion that at the time when the Military Accountant General decided the appeal he had, after going through the record, reached a positive conclusion as to the petitioner having been guilty of the misconduct alleged against him.
8. In the view that we have taken, it is not necessary to examine the other contentions of the petitioner. We accept the writ petition and quash the two orders passed by the Controller of Military Accounts imposing penalty of stoppage of one incre ment against the petitioner. The proper authority for initiating proceedings and imposing a penalty is the Military Accountant General. It is for him now to decide whether he will or will not proceed against the petitioner after the lapse of so many years. There is no order as to costs.
K. B. A Petition accepted.
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