Telangana High Court
V.N.Janarhdhan Rao vs The Commissioner For Coop. Reg. 4 on 25 March, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.12969 OF 2003
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ of Mandamus declaring the action of the 4th and 5th respondents
(i) in issuing the impugned memo Rc.No.Estt/E1/F98/956/ 2002-03 dt.16.05.2003 for recovery of an amount of Rs.1,24,305.85 ps., after the retirement of the service of the petitioner from the bank on 31.12.2002; and
(ii) in not paying the gratuity and leave salary amounting to Rs.3,57,476/- without taking into consideration, the 5 arrear increments due together with interest @ 18% per annum from the date of accrual till the date of actual payment as per the existing pay scale attached to the petitioner immediately after retirement from service, as illegal, unjust, arbitrary, improper, contrary to facts on record and consequently W.P.No.12969 of 2003 2
(iii) to direct that the petitioner is entitled to a total amount of Rs.6,90,746/- after taking into consideration the pay fixation by sanction of five increments due to him for the years 1994 to 1998 together with interest @ 18% per annum from the date of accrual till the date of actual payment.
2. Brief facts leading to the filing of this case are that the petitioner was appointed as a Supervisor in the Agricultural Development Bank at Ramannapet on 07.06.1965 and worked as such up to 31.03.1968 and thereafter, he was promoted as an Accountant and worked as such from 01.04.1968 to 15.09.1972. Thereafter, the petitioner had resigned from his job and was reappointed as a Supervisor on 28.10.1978 in Ramannapet Co-operative Agricultural Development Bank Limited. From 28.10.1978, the petitioner worked as Supervisor till 27.05.1981 when his services were terminated. The petitioner challenged the same in W.P.No.4405 of 1981 and vide orders dt.24.06.1981, the termination order was suspended and the petitioner continued in service. Vide orders dt.07.01.1987, this Court finally set aside the termination order and consequently the petitioner continued in service as Supervisor in W.P.No.12969 of 2003 3 Ramannapet Co-operative Agricultural Development Bank. Thereafter, on 21.02.1990, the petitioner made a representation to respondent No.4 seeking the following relief:
(1) Continuity of services as accountant from the date of re-appointment orders issued by the P.I.C. (2) The increment due on 1-7-1972 be sanctioned in the time scale of pay. (3) The A.P.C.C.A.D.B. as a mark of celebration of 400 Crores disbursement of loans sanctioned special increment from 1-1-1973 which may please be extended to.
(4) As on date of my re-signation I was at credit of six months previlage leave wich may be considered to and sanctioned accordingly. (5) The remaining period may be considered as Ex.ordinary leave to which I am eligible upto 5 years.
Vide proceedings dt.11.02.1992, certain relief was granted to the petitioner. Vide letter dt.07.12.1992, the petitioner reiterated his submissions for continuity of service as an Accountant and also for other monetary benefits as sought for in his letter dt.21.02.1990. Vide proceedings No.4/Estt/LT/93, dt.08.07.1993, respondent No.4 granted the relief of treating the petitioner as an Accountant from the date of reappointment i.e., 28.10.1978 and also to treat the period of absence from W.P.No.12969 of 2003 4 16.09.1972 to 27.02.1973 as earned leave;
28.02.1973 to 01.07.1973 as sick leave; and 02.07.1973 to 27.10.1978 as leave on loss of pay.
He also granted increments due on 01.07.1972, 01.07.1973 and the special increment on 01.07.1974 and increments due from 01.10.1979 to 01.10.1992. His pay was fixed and paid accordingly and he worked as Accountant in the Nalgonda District Cooperative Central Bank Limited (in short 'Bank') up to 08.07.1993. Thereafter, from 08.07.1993 to 31.12.2002, he worked as Accountant/Assistant Manager Incharge.
3. In the meantime, vide letter dt.22.08.1995, the 5th respondent requested the 1st respondent to guide them with regard to the financial benefits granted to the petitioner. The 1st respondent, through his letter dt.20.11.1995, requested the 2nd respondent to cause enquiry and fix up the responsibility on the persons responsible. Thereafter, vide letter dt.24.08.1996, the 3rd respondent advised the 5th respondent that the petitioner is not at all entitled to any benefit of the past service inasmuch as the appointment on 28.10.1978 was a fresh appointment for all practical purposes and his services have to be reckoned for all purposes W.P.No.12969 of 2003 5 only from 28.10.1978. The 5th respondent was accordingly advised to recover an amount of Rs.1,24,305.85 ps., from the petitioner treating the said payment made to the petitioner as irregular. Consequently, the 5th respondent, vide letter dt.01.11.1996, intimated the petitioner that the said amount with interest @ 18% per annum would be recovered from the petitioner's pay bill from November, 1996 onwards. The petitioner filed an appeal on 19.11.1996 before respondent No.4 bank against the notice for recovery and vide letter dt.27.12.1997 requested the respondent No.5 to stop deduction till his appeal was disposed of. Accordingly, no deduction was made. The petitioner retired from service on 31.12.2002 on attaining the age of superannuation. Thereafter, vide notice dt.31.01.2003, the respondent No.5 required the petitioner to remit the amount of Rs.1,24,305.85 ps., along with interest @ 18% per annum within 30 days from the date of receipt of the said notice. The petitioner, vide letter dt.26.02.2003, submitted his explanation that an amount of Rs.1,700/- per month was being recovered from his salary from November, 1996 to December, 1997 and the deduction was stopped by the order of respondent No.5 on 26.12.1997, that since he was no longer the employee of the 5th respondent bank, issuance of the said notice after his retirement was arbitrary and W.P.No.12969 of 2003 6 requested to pay him all the due increments, gratuity and leave salary. Further vide letters dt.12.04.2003 and 18.05.2003, the petitioner requested for grant of increments and consequential retirement benefits. Vide proceedings dt.16.05.2003, the 5th respondent intimated the petitioner about disposal of his appeal vide order dt.14.05.2003 and the direction for recovery and refixation of his pay to settle his retirement benefits. This letter of the 5th respondent dt.16.05.2003 is challenged in this Writ Petition. Since the petitioner retired from service with effect from 31.12.2002, the amounts due from the petitioner were withheld from his retirement benefits. Aggrieved, this Writ Petition is filed.
4. Learned counsel for the petitioner, Sri G. Siva, submitted that the period of unauthorised absence of the petitioner was already regularised by the respondents vide letter dt.08.07.1993 and the pay was fixed accordingly and therefore, there was no fault of the petitioner in the said fixation of pay. He submitted that against the order of removal from service, the petitioner had approached the Hon'ble High Court by way of a Writ Petition and the Hon'ble High Court had directed reinstatement of the petitioner into service consequent to which, the petitioner has been reinstated and the period from the date of removal to W.P.No.12969 of 2003 7 the date of reinstatement has been regularised. It was submitted that since the pay fixation has not been due to any fault of the petitioner, the retirement benefits ought to have been paid to the petitioner without any recovery as there could not have been any recovery of excess payments made by the respondents where the petitioner was not at fault.
5. Learned counsel for the 2nd respondent, Sri A.H. Rama Krishna Rao, has relied upon the contentions in the counter filed by the 2nd respondent.
6. On going through the counter filed by the 2nd respondent, it is seen that there was no misrepresentation of the petitioner to the respondents, on the basis of which the pay has been fixed resulting in excess payment to the petitioner. In such circumstances, the responsibility of excess payment cannot be fixed on the petitioner and recovery of the same from his retirement benefits after the retirement of the petitioner is not justified.
7. The learned counsel for the petitioner relied upon a judgment of the Hon'ble Supreme Court in the case of Bhagirathi Jena Vs. Board W.P.No.12969 of 2003 8 of Directors, O.S.F.C. and others1, wherein the Hon'ble Apex Court has held that recovery cannot be made after retirement of the employee. However, it is found that in the said case before the Hon'ble Supreme Court, the recovery proceedings were initiated after retirement of the employee, whereas in the case before this Court, the recovery proceedings were initiated while the petitioner was still in service but the deductions were stopped due to the order of respondent No.5 on account of the representation of the petitioner that the Appeal of the petitioner is pending. From the order of the 5th respondent, it is noticed that the Appeal has been disposed of on 14.05.2003 and thereafter, on 16.05.2003 the order of recovery has been passed. However, it is not stated that the appellate order has been communicated to the petitioner. Without communicating the order of dismissal of the Appeal, recovery proceedings cannot be initiated. Even in the counter affidavits filed by the respondents, there is no reference to the order in the appellate proceedings and no order is annexed to the counters. Therefore, non- supplying the copy of the appellate order to the petitioner and proceeding to recover the payments made to the petitioner without any 1 AIR 1999 SC 1841 W.P.No.12969 of 2003 9 fault or misrepresentation of the petitioner cannot be sustained. For this reason alone, the order of recovery has to be set aside.
8. As regards the other prayer of the petitioner that he is entitled to the increments during the period of regularisation, i.e., from the date of resignation to the date of reappointment, it is observed that the petitioner has never made such a claim during the period of his service and only when the recovery proceedings were initiated, he has made such a claim. After the severance of employer - employee relationship, the petitioner cannot make such a claim.
9. Learned counsel for the respondents placed reliance upon a decision of Andhra Pradesh High Court (as it then was) in the case of Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another Vs. N. Seetharama Raju2, wherein it was held that the contractual obligation which is not statutory cannot be enforced by way of a Writ Petition. The Hon'ble High Court has held that for such relief, the Writ Petition is not maintainable. Therefore, the claim of the petitioner for awarding of increments during the period of his resignation to the date of reappointment though has been regularised on 2 AIR 1990 AP 171 (FB) W.P.No.12969 of 2003 10 compassionate reasons, the petitioner is not entitled to the same under Article 226 of the Constitution of India. Therefore, the petitioner's prayer for the payment of increments, gratuity and leave salary for the period of 5 years, i.e., between 16.09.1972 and 28.10.1978 is rejected.
10. The Writ Petition is accordingly partly allowed. No order as to costs.
11. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Dt. 25.03.2022 Svv