Bombay High Court
Madhukar S/O Sadhuji Lingayatwani vs The Chairman And Managing Director, ... on 3 May, 2017
Bench: Vasanti A Naik, Swapna Joshi
0305WP4462.13-Judgment 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4462 OF 2013
PETITIONER :- Madhukar S/o Sadhuji Lingayatwani, Age:
55 years, Occupation : Retired, R/o: A-1
Shrinath Sai Nagar, Ring Road, Nagpur-
440027.
...VERSUS...
RESPONDENTS :- 1. The Chairman & Managing Director, Bank of
Baroda, Corporate Center, C-26, G-Block,
Bandra-Kurla Complex, Mumbai-400057.
2. The General Manager, Zonal Office (M & G),
Bank of Baroda, 11/1, Sharda Centre,
Khillare Path, Erandvana, Pune-411004.
3. The Dy.General Manager, (G&W.M.Reg),
Bank of Baroda, Plaza Chambes, 4th floor,
Panaji, Goa-403001.
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Mr.B.B.Meshram, counsel for the petitioner.
Mr.C.S.Samudra, counsel for the respondents.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 03.05.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this writ petition, the petitioner challenges the action on the part of the respondent-bank of not releasing the arrears of subsistence allowance on account of wage revision and the amount contributed by the petitioner towards the provident fund. ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 2/9
2. Few facts giving rise to the petition are stated thus :-
The petitioner was appointed as a clerk in the respondent- bank in the year 1977 and was working as a branch manager at Latur when he was placed under suspension pending a departmental enquiry, on 26/05/2008. During the period of suspension of the petitioner, a decision was taken by the respondent-bank of revising the pay of its employees and by the said decision dated 27/04/2010, the pay was revised with effect from 01/11/2007. The petitioner was punished after the departmental enquiry and was dismissed from service. An amount of Rs.1,15,258/- was credited to the account of the petitioner in the bank on 16/08/2010, however, the amount of Rs.85,399/- out of the said amount was recovered on the ground that the said amount was being paid to the petitioner towards the subsistence allowance, in excess. An amount of Rs.8,76,000/- was payable to the petitioner as the same was his contribution towards the provident fund. After deducting a sum of Rs.6,24,000/- towards housing loan dues, according to the petitioner, it was necessary for the bank to pay an amount of Rs.2,52,252/- to the petitioner but the bank forfeited the amount on the ground that the petitioner had caused loss to the respondent-bank by the acts of misconduct that were proved against him. The petitioner has challenged the action on the part of the respondent-bank in withholding a sum of Rs.85,399/- that was liable to be paid to the petitioner towards subsistence allowance and a sum of Rs.2,52,252/- that was liable to be ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 3/9 refunded to the petitioner as his contribution towards the provident fund.
3. Shri Meshram, the learned counsel for the petitioner, submitted that the petitioner was suspended with effect from 28/05/2008 and the pay revision was brought into effect on 01/11/2007, i.e. prior to the date of his suspension, though the decision to revise the pay was taken by the bank during the suspension period. It is submitted that since the pay of the employees was revised with effect from 01/11/2007 and the petitioner was suspended from 28/05/2008, it was necessary for the bank to grant the subsistence allowance to the petitioner as per the pay scale revised on 01/11/2007. It is submitted that the bank has wrongfully withheld an amount of Rs.85,399/- from the amount payable to the petitioner towards subsistence allowance. It is submitted that the petitioner has no grievance about the action on the part of the bank of deducting an amount of Rs.6,24,000/- towards housing loan dues from the contribution of the petitioner towards provident fund but the petitioner has a serious objection in regard to the action on the part of the respondent-bank of withholding a sum of Rs.2,52,252/- on the ground that the petitioner had caused financial loss to the bank. It is submitted that no charge in regard to causing of financial loss to the bank was framed against the petitioner and the disciplinary authority has not dismissed the petitioner for causing ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 4/9 financial loss to the bank. It is submitted that causing of financial loss to the bank is a reason that is put forth by the bank for wrongfully withholding the sum of Rs.2,52,252/- from the amount that is liable to be returned to the petitioner.
4. Shri Samudra, the learned counsel for the respondent- bank, has supported the action of the bank. It is submitted by placing reliance on the Bank of Baroda Provident Fund Rules, specially rule 5 of the Bank of Baroda Provident Fund Rules under caption "subsistence allowance" to state that in case pay scales are revised during the period of suspension, the employee will not get the benefit of the revised pay since the subsistence allowance is based on the basic pay which the officer was receiving prior to his suspension. It is submitted that though the revision in the pay scale was brought into effect from 01/11/2007, a decision to revise pay was taken on 27/04/2010 and hence, the petitioner was not entitled to seek the subsistence allowance on the basis of the pay revision. It is stated that the petitioner would not be entitled to the refund of the amount of Rs.2,52,252/- that was contributed by the petitioner towards provident fund, as the petitioner has caused financial loss to the bank to the tune of Rs.85,00,000/-. It is submitted that after the petitioner was dismissed from service, he was informed by the notice dated 09/04/2012 that he had caused loss to the bank and hence the amount of Rs.2,52,252/- could not be returned to ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 5/9 him. It is however, fairly admitted by the learned counsel for the bank that there is no finding in the departmental enquiry proceedings that particular loss was caused to the bank due to the misconduct on the part of the petitioner. It is further fairly admitted that there is no quantification of the loss either by the enquiring authority or by the disciplinary authority. It is however stated that after the petitioner was dismissed, it was communicated to him that the loss caused to the bank due to his misfeasance amounted to Rs.85,00,000/-.
5. On hearing the learned counsel for the parties, it appears that the respondent-bank was not justified in not paying the subsistence allowance to the petitioner as per the pay scale revised on 01/11/2007, though the petitioner was suspended with effect from 28/05/2008. Rule 5 pertaining to "subsistence allowance" in the Bank of Baroda Provident Fund Rules reads thus -
5. In case pay scales are revised during the period of suspension, officer employee will not get benefit of the revised pay since the subsistence allowance is based on the basic pay which, the officer was receiving prior to suspension.
It is apparent from the rule that in case pay scales are revised during the period of suspension, the suspended officer or employee would not get the benefit of the revised pay, but if the pay scales are revised with effect from the date prior to the suspension of ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 6/9 the employee or the officer, the employee or the officer would be entitled to the subsistence allowance as per the revised pay. In the instant case, though the bank took a decision on 27/04/2010, i.e. during the pendency of the petitioner's suspension to revise the pay scale, the pay revision was brought into effect from 01/11/2007. Admittedly, the petitioner was suspended on 28/05/2008 and the pay revision was brought into effect on 01/11/2007. Rule 5 of the Rules pertaining to subsistence allowance on which great reliance is placed by the counsel for the respondent-bank for not paying the subsistence allowance to the petitioner as per the pay revision with effect from 01/11/2007, would not entitle the officer or employee to the revised pay if the pay scales are revised during the period of suspension. The rule pertains to the revision of pay scales and not to the decision pertaining to the revision of pay scales. What is liable to be considered is as to whether the pay scales were revised from a date prior to the order of suspension or during the period of suspension. Sometimes, a decision to revise the pay scale may be taken before an employee is suspended but the pay revision could be brought into effect after the employee is suspended. In that case, may be, it could be said that the pay scales are revised during the suspension period. What is necessary to be looked into while considering rule 5 is not whether the decision to revise the pay scale is taken during the period of suspension and it would be necessary to consider whether the pay scales are brought into ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 7/9 effect during the period of suspension. It would be necessary to refer to the judgment of the Hon'ble Supreme Court, reported in (2010) 2 SCC 763 (Union of India v. R.K.Chopra) in this regard. It is held by the Hon'ble Supreme Court that if the revision of pay takes effect from a date prior to the date of suspension of a government servant, then he would be entitled to the benefit of the revised pay but if the revision of the pay scale takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowance would accrue to him only if he is reinstated, depending on the fact whether the period of suspension is treated as duty period or not. In the instant case, the first part of the observations made by the Hon'ble Supreme Court would come into play. In the instant case, the revision of pay scale has taken effect from a date prior to the date of suspension. The date of suspension is 28/05/2008 whereas the date of pay revision is 01/11/2007. The pay revision is brought into effect from 01/11/2007, whereas the petitioner was suspended much later i.e. on 28/05/2008. Merely, because the decision to revise the pay scales was taken on 27/04/2010, the respondent-bank cannot be heard to say that the benefit of the pay revision cannot be granted in favour of the petitioner, though the pay revision has actually taken effect from a date which is prior to the date of the suspension of the petitioner. The reliance placed by the learned counsel for the bank on rule 5 of the Rules pertaining to the 'subsistence allowance' is not well founded and ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 8/9 the bank cannot defend the claim of the petitioner on the basis of the said Rules. In our view, it was necessary for the bank, in the circumstances of the case to pay the subsistence allowance to the petitioner as per the pay scale, as revised on 01/11/2007. The bank had initially credited the amount of Rs.85,399/- in the bank account of the petitioner and rightly so, but for the reasons best known to the bank, the said amount was subsequently withdrawn by taking an incorrect view.
6. We also do not find any merit in the submission made on behalf of the bank that the amount of Rs.2,52,252/- was not returned to the petitioner, though it was referable to the petitioner's contribution towards provident fund, as the petitioner had caused loss to the bank to a great extent. We find that neither the enquiry officer nor the disciplinary authority have recorded any finding in regard to the actual loss caused to the bank due to the acts of misfeasance on the part of the petitioner. We also do not find that any charge that the petitioner had caused loss to a particular extent in view of the acts committed by him, was levelled against the petitioner in the departmental enquiry. In the absence of any such charge and a finding by the enquiry officer in regard to the actual loss caused to the bank in view of the acts of misfeasance on the part of the petitioner, we do not find any propriety in the action of the bank of not returning the sum of Rs.2,52,252/- that ::: Uploaded on - 05/05/2017 ::: Downloaded on - 07/05/2017 00:22:45 ::: 0305WP4462.13-Judgment 9/9 was liable to be refunded to the petitioner, as that was the petitioner's own contribution towards the provident fund. After the culmination of the departmental enquiry, where no finding of particular loss being caused to the bank is recorded, the bank could not have simply by the communication dated 09/04/2012 informed the petitioner that the petitioner had caused loss to the bank to a great extent. Unless the petitioner was granted an opportunity in this regard, specially in the departmental enquiry that was conducted against him, the respondent- bank could not have withheld the amount of Rs.2,52,252/- from the petitioner's contribution towards the provident fund after his dismissal. We find that it would be necessary for the bank to refund the amount of Rs.85,399/- and Rs.2,52,252/- to the petitioner at the earliest.
7. Hence, for the reasons aforesaid, the writ petition is allowed. The respondent-bank is directed to pay a sum of Rs.3,37,651/- (Rs.85,399 + Rs.2,52,252) to the petitioner within four weeks. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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