BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/08/2011 CORAM THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.(MD)No.6348 of 2007 RM.Venkatachalam ... Petitioner Vs. 1.Indian Bank, Rep. by its Chief Manager(HRM) H.O.66, Rajaji Salai, Chennai-600 001. 2.The Assistant General Manager, (HRM Section), Circle Office, Indian Bank, 100-101, East Avanimoola Street, Madurai-625 001. 3.The Chief Manager, Indian Bank, Karikudi Branch, Karaikudi. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarifid Mandamus calling for the records relating to the impugned order of the 2nd respondent bearing Ref.MCO:HRM, dated 23.06.2007 and quash the same in so far as it directs re-fixing the petitioner's salary retrospectively and consequently, direct the respondents from in any manner effecting recovery from petitioner's salary consequent upon such re- fixation of salary. !For Petitioner ... Mr.K.M.Ramesh ^For R1 and R2 ... No appearance For 3rd Respondent... Mr.Pala.Ramasamy :ORDER
The petitioner has approached this court with a prayer, for issuance of a
writ, in nature of certiorari, to quash the order, dated 23.06.2007, vide which,
the salary of the petitioner has been re-fixed retrospectively and recovery of
excess payment ordered.
2.The petitioner joined the service as ‘Sub-Staff’ in the Indian Bank on
20.07.1972, and promoted as ‘Clerk’ in the year 1983. While, working as
‘Clerk/Shroff’ in Royapettah Branch, Chennai, he was placed under suspension,
and charge memo for misconduct was issued, on 28th May 1990, and imposed a
punishment of warning.
3.The stand of the respondents is that the petitioner accepted the charges
and regretted his misbehavior, and prayed for mercy, and agreed that the period
spent on suspension be treated as suspension period.
4.It was, on the undertaking of the respondents that the suspension was
revoked and the petitioner was issued minor punishment of warning, by treating
the period of suspension as suspension period, but the petitioner was allowed
his normal annual increment during the period of his suspension.
5.The stand of the petitioner is that Indian Bank Association, vide
circular, dated 13th June 1992, advised the member banks to specify in the final
order, as to whether during the suspension period, the delinquent employee
should be granted annual increment or not, and if no such mention is made, the
employee is entitled to annual increment. It was also clarified that penalties
awarded prior to the date of issuance of advisory letter should not be re-
opened.
6.On 15th July 1996, the petitioner was given the last stage annual
increment and fixed permanent allowance. As per the policy of the Bank, the
petitioner was also given first stagnation increment, when he reached the
maximum pay scale, for clerical cadre, on 15th June 1999.
7.The petitioner was, denied the 2nd stagnation increment, which according
to the petitioner, was due to him, on 15th July 2002.
8.The case of the petitioner is that when representations were filed for
release of 2nd stagnation increment, he was informed, on 6th December 2005, that
the petitioner was not entitled to increment during the period of suspension,
and that his salary was required to be re-fixed retrospectively, with effect
from 1989 and excess payment to be recovered.
9.The petitioner challenged the order, by way of W.P.No.19298 of 2006,
which was allowed, and the respondents were given liberty to proceed afresh,
after giving show cause notice.
10.The petitioner replied to the show cause notice, on 15th June 2007, but
without considering the reply, the impugned order was passed, re-fixing the
salary of the petitioner with effect from 1989, and recovery of excess paid was
also ordered.
11.The learned counsel for the petitioner challenged the impugned order,
by contending that the order is totally arbitrary and thus, hit by Article 14
of the Constitution of India.
12.The contention of the learned counsel for the petitioner is that once,
no order was passed, withholding the increment of the petitioner, he was
entitled to increments, in normal course. The petitioner, therefore, was
rightly released the annual increments. Secondly, in absence of any
misrepresentation or fraud, on the part of the petitioner, the amount paid could
not be recovered even if paid wrongly.
13.In view of the fact that punishment of warning was awarded to the
petitioner, he was entitled to increment from due date, even if he was not so
entitled during the period of suspension.
14.The learned counsel appearing on the behalf of the respondents,
however, support the impugned order, by contending that the impugned order
cannot be faulted with, as the petitioner had admitted, his guilt before the
enquiry officer, and it was on his undertaking, that the period of suspension be
treated, as suspension period, that he was ordered to be reinstated by awarding
minor punishment of warning.
15.It is also the contention of the learned counsel for the respondents
that once the petitioner admitted the period to be treated as suspension period,
he was not entitled to increment. This fact was within his knowledge, therefore,
recovery could also be ordered, after re-fixing the salary retrospectively. In
view of the Indian Bank Association Circular, dated 12th February 1987, clearly
laying down that the person under suspension is not entitled to increment during
his suspension period.
16.On consideration, I find no force in the contentions of the learned
counsel for the respondents.
17.An employee is entitled to annual increment as of a right, which can
only be withheld, by specific order.
18.Once, there was no order, stopping the increment, by way of punishment,
the petitioner was entitled to annual increment for every year of service,
rendered. Any other interpretation will defeat the very object of minor
punishment, and the punishment of warning will stand converted into a major
punishment of stoppage of increment with cumulative effect, which cannot be
permitted.
19.The circular of the Indian Bank Association is misread by the
respondents, in coming to the conclusion that the petitioner will not be
entitled to increment during the suspension period.
20.The circular has to be read to lay down that during the period of
suspension, delinquent may not be entitled to increments, but after the final
order is passed and an employee is exonerated or given a minor punishment, he
would be entitled to annual increment.
21.The impugned order, re-fixing the pay of the petitioner is, thus,
arbitrary, and amounts to colourable excise of power, thus violative of Article
14 of the Constitution of India.
22.As observed above, there was no question of recovery at all, as the
petitioner was granted increment by the respondents Bank, without any
misrepresentation or fraud on his part.
23.In any case, this question need not deliberated further, as in this
case, it is held that the petitioner was in-fact entitled to annual increment,
granted to him, and there is no occasion, either to re-fix the salary or claim
of recovery, only because petitioner was under suspension for particular period.
24.For the reasons stated above, the writ petition is allowed and the
impugned order is quashed.
25.No costs.
er