Andhra Pradesh High Court - Amravati

B.Somaiah vs The State Of Andhra Pradesh on 24 February, 2021

Bench: M.Satyanarayana Murthy

   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

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.

W.P.No.15509 of 2009 dated 16.04.2015 MSM,J WP_4553_2021

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

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

W.P.No.6617 of 2014 dated 04.11.2004 MSM,J WP_4553_2021

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