Andhra HC (Pre-Telangana)
Kuchibhotla Samba Siva Sastri S/O ... vs Managing Director Andhra Pradesh State ... on 18 October, 2012
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO.11148 OF 2009 18-10-2012 Kuchibhotla Samba Siva Sastri S/o Muralidhara Sastri Manager, A.P. Cooperative Bank Ltd. Troop Bazaar, Hyderabad Managing Director Andhra Pradesh State Cooperative Bank Limited Troop Bazar Hyderabad Counsel for the Petitioner: Smt.Bobba Vijayalakshmi Counsel for the Respondents : Sri A.H. Ramakrishna Rao <Gist: >Head Note: ? CITATIONS: ORDER:
The writ petitioner joined the service of the respondent/ a Cooperative Bank, which was held to be State for purpose of Article 12 of the Constitution by this Court, as a Staff Assistant on 01.05.1976. He was subsequently promoted as an Assistant Development Officer/Manager (Legal) in the year 1993. While he was working as such, on 24.09.2008, the petitioner was called upon to furnish the details of the dates of birth and names of his children and also to inform as to whether the petitioner or his wife had undergone Sterilization surgery, a second time after the birth of his third child. The petitioner furnished the information called for by the respondent/Bank on 13.11.2008 setting out that his third child, a son, was born on 01.06.1984, inspite of his undergoing Vasectomy surgery on 05.08.1983. The petitioner has also informed the respondent/Bank that no further Sterilization surgery, a second time, had been undergone either by him or his wife. On 04.12.2008, an order was passed withdrawing and discontinuing the two incentive increments and allowances sanctioned to him earlier for having undergone Vasectomy surgery. It is ordered by the Bank that the incentive increments sanctioned to him earlier stood withdrawn with effect from 01.06.1984, the date on which his 3rd child was born, and therefore the petitioner was directed to refund the amount drawn by him till then together with 12% interest thereon within a period of fifteen days failing which the same will be recovered from the monthly salary payable to him. Against the orders passed by the Deputy General Manager on 04.10.2008, the writ petitioner preferred an appeal to the Managing Director of the respondents/Bank on 02.02.2009. That appeal was considered and rejected by the orders passed by the Managing Director on 25.05.2009. Hence the present writ petition.
Heard Smt. Bobba Vijayalakshmi, learned counsel for the petitioner and Sri A.H. Rama Krishna Rao, learned standing counsel for the respondent/Bank.
Learned counsel for the petitioner, Smt. Bobba Vijayalakshmi would contend that, there is no denying or dispute about the fact that the writ petitioner has undergone Vasectomy surgery on 05.08.1989 and he was rightfully granted two incentive increments. When the increments have been sanctioned, not due to any misrepresentation on the part of the writ petitioner, however, on the basis of some anonymous petition, made when the petitioner was about to retire from service, the Deputy General Manager has considered it appropriate to pass orders dated 04.12.2008 withdrawing the concession and also proposing to recover the money together with interest at 12% per annum. Since the money has been paid to the petitioner from out consideration of a genuine claim made, the question of withdrawing the same at the first place would not arise and even if such an incentive is liable to be withdrawn, it can be done only after conducting an enquiry and in any event, contends the learned counsel for the petitioner, the question of imposition of 12% interest treating as if the petitioner has either misrepresented or obtained a loan from the respondent/Bank and failed to repay the same would not arise.
Per contra, Sri A.H. Ramakrishna Rao, learned Standing Counsel would contend that, what has been contemplated by the Bank was to provide certain incentives. These incentives have been provided by virtue of the policy guidelines framed by the State Government. It was conceived that, if persons engaged in public employment were to adopt a 'small family norm' it will greatly serve the purpose. The first is that, they will be acting as role models for the rest of the society to follow them so that, there will be a voluntary check on undesired population boom. The second benefit would be to the person concerned and his immediate family. They will be able to utilize the time and other precious resources much more effectively and productively. Consequently, their concentration and attention span during working hours would enhance. But however, when the writ petitioner was granted such a concession, it is only expected of him to be very faithful and truthful to inform the Bank that inspite of his undergoing the surgery, he was still blessed with a third child on 01.06.1984. It is where the petitioner has failed, according to Sri A.H. Ramakrishna Rao. He would contend that the petitioner has purposefully withheld this information and neglected to disclose the same. Otherwise appropriate remedial measures would have been taken in 1984 itself. Only when a suspicion has been raised, did the petitioner come out with the truth admitting that he was blessed with a third child on 01.06.1984. Therefore, it is a case where the information very much available with the petitioner has been withheld from being brought to the notice of the Bank. Hence, the concession extended by the Bank is legitimately entitled to be withdrawn, since he has unjustly claimed the incentive for so long a period and the respondent Bank, is entitled to recover the money with interest at 12%, which is normal rate, which the Bank charges from any of its borrowers.
The question that arises for consideration in this writ petition is whether the writ petitioner is entitled to be granted two incentive increments at the first instance and whether he can retain the same beyond 01.06.1984.
The first respondent/Bank was earlier known as the Andhra Pradesh Cooperative Central Agricultural Development Bank Limited. The said Bank, in exercise of the power available to it under Bye-Law 42(g) of the Bye-Laws framed service regulations. They were approved by the Registrar of Cooperative Societies, Hyderabad on 01.07.1979. The relevant extract from chapter 7 of the said bye- laws has been enclosed to the counter affidavit filed by Sri A.H. Ramakrishna Rao. Regulation 54 of these regulations dealt with sanction of increments for family planning. Regulation 54 reads as under:
"All employees of the Bank having two or less living children, who themselves or whose spouses undergo sterilization operation will be given two advance increments from the date of sterilization. All employees having three or more living children who themselves or their spouses undergo sterilization operation will be given one advance increment from the date of sterilization."
The incentives talked of by Regulation 54 would be granted upon production of a certificate from a Medical Officer not below the rank of Civil Assistant Surgeon. If the certificate is issued by a Private Medical Practitioner, if the same is counter signed by any Government Doctor not below the rank of Civil Assistant Surgeon, would also be acceptable for grant of incentives. It was further made clear that, the family planning incentive increments sanctioned thus will not have any effect on the normal increments. The above regulation clearly envisaged grant of two advance increments from the date of undergoing sterilization surgery, if, either the employee himself or his spouse undergoes any such surgery provided, they have two or less than two living children. On the other hand, if the employee has already three or more number of living children by the time of undergoing sterilization surgery, only one advance increment would be granted from such date. Clearly, the purport of this regulation is that two advance increments would be granted for those who have two or less number of children and only one increment would be granted to those who adopt surgical method of sterilization but have three or more children. The petitioner has undergone the Vasectomy surgery on 05.08.1983. It was not in doubt that, as on the said date, he has only two girl children living, who were born on 22.09.1980 and 30.07.1982. Therefore the claim made by the petitioner for grant of two incentive increments for undergoing the vasectomy surgery is perfectly legitimate. However, he was blessed with a third child only on 01.06.1984. Hence, on that score, the respondent/Bank has proposed to withdraw the two family planning incentive increments granted to him.
Vasectomy is considered as a permanent form of birth control to make a man unable to father a child. It is a surgical procedure in which the tube that carries the sperm from the testes to the urethra is cut or sealed off to prevent it from being released. A conventional surgical procedure involves numbing of the scrotum with local anesthetic after which small incisions on each side of the scrotum are made at a location that allows the surgeon to bring each vas deferens to the surface for excision. The vas deferentia are cut, separated and then at least on one side it is sealed by ligating or clamping. However, Vasectomy is not considered to be a fail-safe surgical procedure. Recanalization of vas deferens is a known cause of vasectomy failures. Facial interposition is considered as helpful to prevent the recanalization of vas deferens. In Facial Interposition procedure, the position of the prostatic "receiving" end of the vas deferens is brought outside the fascial sheath, while leaving the other end within the confines of the fascia. The medical researchers have found that, 1 out of 100 vasectomy surgeries to have failed to prevent pregnancy within 5 years span of undergoing the procedure. It is, therefore, considered by medical researchers that, like the other birth control methods, vasectomies are not always 100% effective or fail-safe. It is further considered appropriate by the medical practitioners to counsel about the small percentage, but real risk of pregnancy following the procedure indicating that men are not totally or completely sterile after the Vasectomy. Medical researchers in U.S. have followed a group of women whose husbands have undergone Vasectomy at five different medical centers. The studies were carried out between 1985-1987. Those women participated in the U.S Collaborative Review of Sterilization (CREST) study and were interviewed at the end of the first, second, third and fifth year from the date of undergoing the Vasectomy procedure. The researchers have found that, out of 540 women, six have reported of pregnancies after Vasectomy and they were considered to have been caused by the failure of procedure. Though, three of the pregnancies occurred within the first three months gap period after the surgical intervention, but however, long gap pregnancies have not been completely ruled out. From an analysis of this data available, it becomes imminently clear that, recanalization of the vas deferens occurs in certain cases of vasectomy surgeries leading to the failure of the vasectomy.
This also brings the necessity for us to examine as to the time interval of a gestation in human beings. Gestation is the period during which an embryo or fetus is carried inside by a female. In human beings, birth normally occurs at a gestational age of about 40 weeks, though a normal range is considered to be from 37 to 42 weeks.
In the instant case, the writ petitioner has undergone the Vasectomy procedure on 05.08.1983 and thereafter his wife delivered a male baby on 01.06.1984, nearly 10 months from the time the petitioner has undergone the Vasectomy surgery. It is therefore a clear case of failure of the Vasectomy surgery undergone by the petitioner that has led to his third child birth on 01.06.1984.
When the Regulation 54 talked of granting incentive increments for undergoing family planning surgeries, it may not have contemplated the consequences that will flow from the possible failure of such surgeries. Perhaps, such a situation may have been out of reckoning. But, at the same time, a true import of Regulation 54 indicates the entitlement of an employee of the respondent/Bank to receive one or two additional increments, as the case may be, depending upon the number of living children, he/she is having, at the time of undergoing the surgery. If this provision is considered strictly, as was suggested by Ms. Bobba Vijayalakshmi, learned counsel for the petitioner, to do so, the petitioner is fully justified and legitimate in claiming and getting paid two incentive increments, inasmuch as, he has only two living daughters as on 05.08.1983. His third child was born nearly 10 months thereafter. But however, the regulation provided for grant of one additional increment only in case the employee has three or more number of living children by the time the surgery is undergone. If this provision is construed strictly as on 05.08.1983, the petitioner had only two living daughters and consequently he is entitled for grant of two additional incentives. But, by parity of reasoning, if the petitioner has undergone the vasectomy surgery any time during the month of May 1984, also, he can be said to be having two living children even by then. That perhaps, is not the intendment of the Regulation 54. It is obvious that the Regulation 54 wanted to reward an employee additionally by granting him one increment more, if he prefers to confine the size of his children to two or less than two. If the employee has three or more children he will be granted only one increment. Therefore, there is a direct nexus between the number of children, the employee prefers to confine and the number of additional insensitive increments he gets. When this provision is viewed from the requirements of ethical or moral standards on the part of the employees, the view canvassed by Sri A.H. Ramakrishna Rao that, the writ petitioner is strictly entitled for only one additional increment but not two increments with effect from 01.06.1984, becomes a plausible one, notwithstanding the fact that the petitioner has not undergone the surgery on or after 01.06.1984.
The petitioner has been paid two incentive increments all through till 04.12.2008, when the Deputy General Manager passed orders withdrawing the same. The petitioner would not have confined the amount drawn by him as additional incentives in some fixed deposits month after month, in anticipation that, one day he might be called upon to refund the same. Therefore, it is not proper to seek the recovery of the entire amount paid towards two additional incentives to the petitioner with effect from 01.06.1984. The order passed by the Deputy General Manager, which was upheld by the Managing Director in appeal, would clearly disclose that the Deputy General Manager as well as the Managing Director of the Bank are of the opinion that the petitioner is legitimately entitled and justified in his claim of two additional incentives with effect from 05.08.1983. That is the reason why they proposed to withdraw the said incentives with effect from 01.06.1984, the date on which the petitioner was blessed with a third child. Having thus realized that there is no illegality in the claim initially made by the petitioner, both the Deputy General Manager and the Managing Director of the respondent/Bank erred in ordering for withdrawal of both the incentive increments. From 01.06.1984, he cannot be denied the benefit of one incentive increment.
In all fairness, the petitioner should have been advised to refund the amount equivalent to one incentive increment with effect from 01.06.1984 upto 04.12.2008 drawn by him. He should also have been provided a reasonable length of time for repaying the same in easy installments. There is no justification whatsoever behind the impugned action of demanding the repayment of the withdrawn incentives together with 12% interest. The petitioner is not a borrower of the Bank. He legitimately claimed incentive increments as a matter of his right. If he were to refund any amount, the same had been necessitated not due to fault of his, but, for certain circumstances which are beyond ones control. They are attributable to the rare phenomenon of failure of the Vasectomy procedure undergone by him. Therefore, I do not find any justification whatsoever behind the impugned action of the respondent/Bank in withdrawing both the incentive increments accorded to the petitioner on 05.08.1983. At the most, they could have demanded withdrawal of one such increment with effect from 01.06.1984 and that too without interest. He should also be provided a minimum of 12 monthly installments for repaying the said amount. Otherwise, he would be exposed to the financial hardships, which are totally unwarranted.
Hence, this writ petition is allowed, the order passed by the Deputy General Manager of the respondent/Bank on 04.12.2008 and the Managing Director of the Corporation on 25.05.2009 are both set-aside. It would be perfectly open to the respondent/Bank to recalculate and work out the one incentive increment that should be withdrawn from the petitioner with effect from 01.06.1984. Within the next 30 (thirty) days, the total amount that is withdrawn be calculated and be communicated to the petitioner enabling him to repay the said amount, in 12 (twelve) monthly installments.
Learned counsel for the petitioner has drawn my attention to the judgment and order rendered by a Division Bench of this Court in W.A.No.974 of 2009. W.A.No.974 of 2009 was filed against the interlocutory order passed in WPMP.No.14324 of 2009 in this very writ petition on 09.06.2009. The respondent/Bank carried the matter in appeal. The learned Judges of the Division Bench directed the respondent/Bank to confine a sum of Rs.3.9 lakhs in fixed deposit and the respondent/Bank was directed to release all other retirement benefits to the writ petitioner. Therefore, learned counsel for the writ petitioner would urge that a direction should also be issued to the respondents to unfreeze the fixed deposit amount of Rs.3.9 lakhs and the same shall be released in favour of the petitioner within the next 30 (thirty) days. The request of the learned counsel for the petitioner is fair. The respondent/Bank will release the entire amount of Rs.3.9 lakhs confined to FDR together with interest earned thereon to the petitioner subject to receiving an undertaking from him that, he will return/refund the amounts representing one additional increment in 12 (twelve) monthly installments.
Writ petition is allowed as indicated supra. No costs.
________________________________ NOOTY RAMAMOHANA RAO, J October 18, 2012