THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.4553 OF 2021
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue a Writ order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents not releasing the increments from the year 2015 to 2020 as highly illegal arbitrary unjust violative the provisions of Fundamental Rules contrary to orders of the Honble Court and violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the respondents to release the increments from the year 2015 to 2020"
The facts of the case in brief are that, the petitioner was appointed as Sericulture Demonstrator on 11.07.1983 and he was appointed by transfer from the category as Farm Foreman-II by proceedings dated 07.08.19984. Thereafter, the petitioner was promoted as Assistant Inspector of Sericulture on 15.03.1991. Further, the petitioner was appointed as Panchayat Secretary in Panchayat Raj Department vide proceedings dated 23.08.2002 and the petitioner discharged his duties as Panchayat Secretary for more than 19 years and retired from service on 31.08.2020 on attaining the age of superannuation.
It is the case of the petitioner that, while working as Panchayat Secretary, Pedapulipaka Grampanchayat, Penamaluru Mandal, on baseless allegations, the petitioner was kept under suspension on 27.04.2015 by the third respondent. Aggrieved by the same, O.A.No.1808 of 2018 was filed before the Andhra Pradesh Administrative Tribunal. In pursuance of the order of the Tribunal MSM,J WP_4553_2021 2 dated 06.07.2017, the petitioner was reinstated into service vide proceedings dated 29.01.2018.
While so, it is contended that, without any jurisdiction, the third respondent issued Charge Memo dated Nil.12.2016 which was communicated to this petitioner on 22.03.2017. The petitioner submitted a detailed explanation to the charge memo and requested to drop the charge memo. But, the respondents without considering the explanation of the petitioner, appointed an enquiry officer and proceeded with the enquiry. Against the same, the petitioner filed W.P.No.13434 of 2019 before this court and this Court vide order dated 13.11.2019 suspended the charge memo. Inspite of suspending the charge memo, the respondents are not sanctioning and releasing the increments for the suspension period from the year 2015 to 2020. The petitioner submitted several representations since long time and no purpose was served, thus action of the respondents in not releasing the increments from the year 2015 to 2020 as highly illegal, arbitrary and requested to issue a direction as stated above.
During hearing, Sri T.S.N. Sudhakar, learned counsel for the petitioner reiterated the contentions raised in the affidavit, while placing reliance on the judgment of the Division Bench of this Court in The Regional Deputy Director of Town Country Planning v. Sri Markonda Patnaikuni Janardhana Rao1 (to which I am one of the member) and requested to issue a direction in the same lines. 1 W.P.No.15509 of 2009 dated 16.04.2015 MSM,J WP_4553_2021 3 Whereas, learned Government Pleader for Services-II and learned Standing Counsel for Respondent No.5/Mandal Parishad Development Officer, Vijayawada opposed the writ petition on the ground that the charge memo and departmental proceedings are pending against this petitioner, though it is suspended it cannot be said to be closed and thereby, denial of increments during pendency of disciplinary proceedings is not an illegality and requested to pass appropriate orders.
As seen from the material on record, the order of suspension was revoked and the petitioner was reinstated into service by the third respondent vide proceedings dated 29.01.2018. However, articles of charges were served and the same is stayed by this Court in W.P.No.13434 of 2019 vide order dated 13.11.2019. Thus, as on the date, only disciplinary proceedings are deemed to be pending, despite granting stay by this Court.
Now, the question is whether the petitioner is entitled to claim service benefits like increments for the period of suspension.
According to F.R.24 of the A.P. Fundamental Rules, an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the State Government or by any authority to whom the State Government may delegate this power if his conduct has not been good, or his work has not been satisfactory. In ordering withholding of an increment by the authority, it shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.
MSM,J WP_4553_2021 4 Therefore, stoppage of increments or withholding of increments can be done by the State Government or authority to whom such power is delegated by the State Government in terms of F.R.24. But, no such order was passed till date for withholding the increments, exercising power under F.R.24. An increment may however be withheld as a measure of punishment after completion of departmental enquiry, if any, initiated, but not before conducing any enquiry.
The contention of the learned Government Pleader cannot be accepted for the reason that, mere pendency of disciplinary proceedings without imposing any punishment by an order of the Government, exercising power under F.R 24 withholding an increment is illegal and the contention cannot be accepted.
Similar question came up before the Division Bench of this Court in State of Andhra Pradesh v. M. Gopala Rao2, wherein the Division Bench issued direction to release the increments holding that the petitioner therein is entitled to claim service benefits.
In The Regional Deputy Director of Town Country Planning v. Sri Markonda Patnaikuni Janardhana Rao (referred supra) (to which I am one of the member), the Division Bench of this Court considered by another Division Bench of this Court in State of Andhra Pradesh v. M. Gopala Rao (referred supra) and observed as follows:
"The law declared by the Division Bench, in its order in W.P.No.661 of 2004 dated 04.11.2004, is that withholding of 2 W.P.No.6617 of 2014 dated 04.11.2004 MSM,J WP_4553_2021 5 increments is also a measure punishment; and increments can only be withheld by following the process prescribed, for imposing penalties, under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. It is not in dispute that such proceedings have been instituted against the respondent- applicant."
Thus, viewed from any angle, when there is no order from the Government or by any authority to whom power is delegated to withhold the increments in terms of F.R.24, withholding of increments is an illegality and contrary to F.R.24. Hence, by applying the principles laid down in the above judgments, it can safely be concluded that the petitioner is entitled to claim service benefits like release of increments etc. In Mritunjai Singh v. State of Uttar Pradesh3, a question came up for consideration as to whether the employee during suspension period was entitled to claim service benefits, including increments. The Court concluded that, increments falling due during suspension should be added granted to him and subsistence allowance should be calculated accordingly. Therefore, simply because an employee is under suspension pending enquiry increments cannot be denied to him and also increments can be withheld only by a specific order of the Government. When there is no such specific order for withholding of increments or postponement of increments cannot be denied even during the period of suspension.
By applying the principles laid down in the above judgment, I hold that, action of the respondents in not releasing the increments 3 1971 (2) SLR 523 MSM,J WP_4553_2021 6 during suspension period is illegal and contrary to F.R. 24 and the same is liable to be declared as illegal without any hesitation.
In the result, writ petition is allowed, directing the respondents to release the increments from the year 2015 to 2020 forthwith.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:24.02.2021 sp