Madras High Court
V.Jayaraman vs Tamil Nadu Electricity Board on 26 March, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :26.03.2013 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.7339 OF 2005, WPMP Nos.8025 and 8026 of 2005 and WVMP No.1128 of 2005 V.Jayaraman .. Petitioner Vs 1. Tamil Nadu Electricity Board rep.by its Chairman 800, Anna Salai Chennai 600 002 2. The Superintending Engineer TEDC/Tuticorin Office of the Superintending Engineer Tuticorin Electricity Distribution Circle Tamilnadu Electricity Board Tuticorin 2 3. Chief Internal Audit Officer Board Office/Audit Branch Tamil Nadu Electricity Board 800 Anna Salai Chennai 600 002 .. Respondents Prayer: The Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus calling for the records relating to the clarification issued by the first respondent in Memo No.53005/C1/98-11(Secretariat Branch) dt.2.2.1999 at S.No.1 and the consequential orders issued by the 2nd respondent in Memo No.01456/ /Admn-I/A2/2005 dt.3.2.2005 refixing the petitioner's basic pay and ordering for recovery of the excess amount already paid and Proceedings No.48231/867/Admn.11/A4/F.Pension/05 dt.16.2.05 revising the petitioner's pension based on the refixed salary, quash the same and consequently direct the respondents to pay the petitioner pension and other terminal benefits based on the actual basic pay that the petitioner drew as on the date of his retirement, with arrears and other consequential benefits. For Petitioner : Mr.V.Ajoy Khose For Respondents : Mrs.R.Varalakshmi (for R1 to R3) O R D E R
This writ petition was filed by Mr.V.Jayaraman challenging the impugned order passed by the first respondent in his proceedings Memo No.53005/C1/98-11(Secretariat Branch) dated 2.2.1999 at S.No.1 and the consequential orders issued by the 2nd respondent-the Superintending Engineer/TEDC/Tuticorin in Memo No.01456// Admn-I/A2/2005 dated 3.2.2005 refixing the petitioner's basic pay and ordering for recovery of the excess amount already paid and Proceedings No.48231/867/Admn.11/A4/F.Pension/05 dated 16.2.2005 revising the petitioner's pension based on the refixed salary to be quashed with the consequential direction to the respondents to pay the petitioner pension and other terminal benefits based on the actual basic pay that the petitioner drew as on the date of his retirement.
2. (i)Mr.V.Ajoy Khosh, learned counsel appearing for the petitioner challenging the correctness of the impugned order stated that the petitioner who was working as Accounts Supervisor in Mettur Thermal Power Station had the benefit of settlement reached under Section 18(1) of the Industrial Disputes Act 1947 between the respondent Electricity Board and the union regarding revision of wages and other conditions of service on 8.7.1998. When the settlement also came into force with effect from 1.12.1996, item No.4 of the settlement clearly provided for service weightage to the workman. In other words, the settlement stated that if a person has completed 7 years in the beginning, one increment will be given as service weightage, and if he has completed another 10 years, namely 17 years, he is entitled to have second increment. Similarly, if the same person has completed another 10 years, he is entitled to enjoy the third increment as service weightage. When the settlement was accepted by the first respondent Board, by their (Permanent) B.P.(FB)No.58, (Secretariat Branch) dated 18.7.1998, it goes without saying that the petitioner having completed 27 years 10 months and 10 days is entitled to get three increments, the first one on completion of the first seven years, the 2nd one after another 10 years and lastly, the 3rd one on completion of another 10 years and accordingly when he was provided with the benefit of all three increments, unfortunately, he suffered departmental proceedings for which the respondent Board imposed the punishment of stoppage of increment for two years with cumulative effect by order dated 24.7.1985. The said punishment was also implemented against the petitioner. Whileso, when he had reached the age of superannuation, though the respondents refixed the total last drawn salary at Rs.7,700/- by taking into account all the three increments given by the respondent in terms of the settlement reached under Section 18(1) dated 8.7.1998, once again the respondent erroneously deducted two years service on an mistaken impression that he had suffered the punishment of stoppage of increment for two years with cumulative effect and this would amount to double jeopardy.
(ii) While adding further the learned counsel contended that his client has not disputed the imposition of punishment of stoppage of increment for two years with cumulative effect on the petitioner and admittedly, the said punishment was also undergone by the petitioner, and therefore, the total period of service, namely, 27 years 10 months and 10 days cannot be reduced to 25 years 10 months and 10 days as there was no other punishment imposed on the petitioner.
(iii) The learned counsel also contended that the respondent has presumed wrongly that the petitioner is asking for the repayment of increment stopped due to imposition of punishment against the petitioner. But this is not the case of the petitioner. Whileso, when the only punishment of stoppage of increment for two years with cumulative effect was imposed on the petitioner, the respondent Board while stopping the increment for two years with cumulative effect cannot deduct the two years service benefits as that is not part of the punishment.
3. Replying to the said submissions, Mrs.R.Varalakshmi, learned counsel appearing for the respondent Electricity Board submitted that it is not in dispute that the petitioner suffered the punishment of stoppage of increment for two years with cumulative effect. Having suffered the said punishment, the respondent has correctly refixed the scale of pay of the petitioner by taking into account the total number of years of service rendered by the petitioner at the time of his retirement from the Board service.
4. (i)The argument of the learned counsel appearing for the respondent Electricity Board is not supporting the impugned order. The impugned order clearly shows that the petitioner has suffered the revision of pay fixation and the consequential disbursement of service benefits is for only 25 years 10 months and 10 days when the petitioner has rendered 27 years 10 months and 10 days in the Board's service. As rightly brought to the notice of this Court when the memo dated 2.2.1999 also clearly helps the issue to be resolved in favour of the petitioner which says that employees drawing lower pay in the pre-revised scale due to punishment should be given higher pay fixation on par with others during general revision of scales of pay, for no reason the respondent can deduct two years of service benefits as that was not the part of the punishment imposed by the Board on 24.7.1985.
(ii) As rightly the learned counsel relied upon the memo dated 2.2.1999 issued by the respondent Board for the purpose of fixation of pay of an individual employed in the respondent board, it could be seen in the said memo No.53005/C1/98-11, (Secretariat Branch) dated 2.2.1999, the attention of the Chief Engineers/Superintending Engineers/Other Officers of the Board was invited to the second reference cited i.e. (Per).B.P.(FB)No.59, SB dt.18.7.1998, wherein, a query was raised. As per the Fitment Tables, in certain cases, for the consecutive stages of pay in the pre-revised scale, fitment in the Revision of Scales of Pay of Workmen/Officers Regulations, 1998 is one and the same and in such cases, if the lower stage of pay was due to punishment of stoppage of increment with cumulative effect, the fixation in the RSP has a nullifying effect. The relevant question is as to whether fitment in such cases also should be allowed based on the fitment tables, even though that will result in granting unintended benefit to the individual employee. While answering the said query, the Secretary of the Board has unambiguously stated that the employees drawing lower pay in the pre-revised scale due to punishment, getting higher pay fixation on par with others during general revision of scales of pay cannot be avoided. Therefore, in my considered view, when the clarification on the relevant issue was answered stating that employees drawing lower pay due to punishment, getting higher pay fixation on par with others during general revision of scales of pay cannot be avoided, the respondent cannot issue the impugned order, particularly, when the petitioner has completed 27 years 10 months and 10 days, on reaching the age of superannuation and when the said total number of service is to be counted for the purpose of pensionary benefits.
(iii) Although the petitioner suffered punishment of stoppage of increment for two years with cumulative effect by order dated 24.7.1985, it is not in dispute except implementing the punishment of stoppage of increment for two years with cumulative effect, the respondent department cannot reduce two years of his total regular service that he has put in as on 30.11.1996 for the reason that when he has put in 27 years of total number of service. Unless there is any other order of punishment to reduce two years of his total number of service, the respondent cannot refuse to pay his pension for the total number of years of service. In the case on hand reducing two years of service without there being any departmental proceeding only on the basis of earlier punishment of stoppage of increment for two years with cumulative effect will run contrary to Article 20(2) of the Constitution of India which says that no person shall be prosecuted and punished for the same offence more than once. Article 20(2) enunciates that no one should be punished twice for one offence. Since the impugned order does not say that the petitioner was subjected to any other departmental proceeding, reduction of two years of his service for the same misconduct for which he was already punished with the punishment of stoppage of increment for two years with cumulative effect, is nothing but amounting to double jeopardy. As matter of fact when the Article 20(2) shows that the second prosecution and punishment which are barred must be for the same offence, the impugned order is liable to be set aside.
(iv) Therefore, this Court finding no merit in the impugned order, by setting aside the same, directs the respondent to pay the pension and other terminal benefits based on the actual basic pay that he drew on the date of his retirement. Accordingly, the respondents are directed to refix the petitioner's pay by including two years service benefits, namely, 27 years 10 months and 10 days, of course, taking into account the punishment imposed against the petitioner for the period of two years with cumulative effect. It is made clear that for the entire period of 27 years 10 months and 10 days, the petitioner is entitled to receive the service benefits.
(v) It was brought to the notice of this Court that during the pendency of this matter, this Court has stayed the impugned order. As a result the respondent has deposited a sum of Rs.36,879/-in this Court's registry. The said amount shall be paid to the petitioner, on an application being moved for withdrawal of the said amount. The said exercise shall be done within a period of four weeks from the date of receipt of a copy of this order.
5. Accordingly, W.P.No.7339/2005 is allowed. No costs. Consequently, connected pending WPMPs and WVMP are closed.
sal To
1. The Chairman Tamil Nadu Electricity Board 800, Anna Salai Chennai 600 002
2. The Superintending Engineer TEDC/Tuticorin Office of the Superintending Engineer Tuticorin Electricity Distribution Circle Tamilnadu Electricity Board Tuticorin 2
3. Chief Internal Audit Officer Board Office/Audit Branch Tamil Nadu Electricity Board 800 Anna Salai Chennai 600 002