K Rama Krishna vs A P Eastern Power Distribytion ...
2022 Latest Caselaw 9458 AP

            HON'BLE SRI JUSTICE NINALA JAYASURYA

                   WRIT PETITION No.15265 of 2021

ORDER:

The Writ Petition is filed challenging the action of the respondents

in withholding/not releasing the petitioner's Annual Grade Increments on

the ground of pendency of F.I.R.No.200 of 2017 dated 19.07.2017, in the

absence of any punishment order as illegal, arbitrary, contrary to FR-24

and Regulation 32 of APEPDCL Service Regulations and for a

consequential direction to release the same, which fell due from the year

2017 onwards.

2. Heard Mr.Ramalingeswara Rao Kocherlakota, learned counsel for

the petitioner and Mr.Metta Chandra Sekhar Rao, learned standing counsel

appearing for the respondents 1 and 3 to 5.

3. The basic facts, as stated in the affidavit for better appreciation of

the petitioner's case, may be stated hereunder:-

4. The petitioner joined as Sub-Engineer in the 1st respondent

Company, in the year 2000 and later promoted as Assistant Engineer in

the year 2005. Subsequently, he was promoted as Deputy Executive

Engineer, Atchutapuram. While he was working as Assistant Executive

Engineer, pursuant to a complaint lodged against him, a case in

F.I.R.No.200/2017 dated 19.07.2017 was registered in Duvvada Police

Station, Visakhapatnam against the petitioner along with employees of

Greater Visakhapatnam Municipal Corporation under Sections 468, 471,

167, 420, 448 read with 34 IPC. The petitioner was arrayed as accused 35

in the said crime and was arrested by the Police. In view of the same, he

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was placed under suspension vide Memo dated 06.09.2017 of the

3rd respondent. Subsequently he was reinstated into duty on 05.10.2017

and the said Criminal Case is still under investigation and no charge sheet

is filed so far. As the respondents are not releasing the Annual Grade

Increments along with his regular salary, the petitioner filed the present

Writ Petition.

5. Learned counsel for the petitioner inter alia, submits that the action

of the contesting respondents in not releasing/withholding petitioner's

Annual Grade Increments is unjust and arbitrary. He submits that the

petitioner is legally entitled to Annual Grade Increments and in the

absence of any valid punishment order, withholding of increments is not

sustainable in law, apart from contrary to Fundamental Rules i.e., FR-24

as also Regulation 32 of APEPDCL Service Regulations. He submits that

withholding/not releasing the Annual Grade Increments merely on the

premise that a crime is registered against the petitioner vide

F.I.R.No.200/2017 is not tenable and places reliance on the orders passed

by the Division Bench of the Common High Court for the State of

Telangana and the State of Andhra Pradesh in W.P.No.15165 of 2014

dated 07.07.2014 as also orders of the learned Single Judge in

W.P.No.3334 of 2019 dated 15.03.2019 and W.P.No.5217 of 2019 dated

18.04.2019 and W.P.No.9228 of 2021 dated 13.07.2021 etc., He also

submits that the respondents, implemented the interim orders directing to

release all increments in respect of similarly situated employees of the

1st respondent. Making the said submissions, he seeks the relief sought for

in the Writ Petition.

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6. The learned standing counsel for APEPDCL on the other hand

submits that in view of the pendency of Criminal Case, the period of

suspension was not regularized and therefore the petitioner is not entitled

to the Annual Grade Increments from the date of suspension. He submits

that the release of increments is dependent on the outcome of the

Criminal Case instituted against the petitioner. In the event of the

conviction, the petitioner may be visited with an order of dismissal and

therefore, he submits that the authorities are justified in not releasing the

increments. He further submits that the orders relied on by the learned

counsel for the petitioner, are not applicable to the facts and

circumstances of the present case and the reliance on FR-24 is

misconceived. Accordingly, he submits that there are no merits or valid

grounds for granting the relief as prayed for and seeks dismissal of the

Writ Petition.

7. This Court has considered the submissions made by the respective

counsel and perused the material on record. FR-24 of Fundamental Rules

on which the learned counsel for the petitioner articulated his arguments

may be extracted for ready reference:-

F.R.24. 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 the withholding of an increment the withholding authority shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments.

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8. Regulation 32 of APSEB Service Regulations as adopted by the

1st respondent is in para materia with F.R.24. A reading of the above said

provision would go to show that an increment shall be drawn as a matter

course, unless it is withheld. An increment may be withheld, if the conduct

of employee has not been good or his work has not been satisfactory.

Though the learned counsel for the respondents made an attempt to

contend that non-releasing of increments is due to pendency of Criminal

Case and would not amount to withholding, it is as good as withholding

the increments, which can be resorted to only if the contingencies as set

out in F.R.24 or Regulation 32 of APSEB Service Regulations, exists.

It is not the case of the respondents that any such order of withholding of

Annual Grade Increments was passed.

9. In W.P.No.15165 of 2014, the Hon'ble Division Bench while

dismissing the Writ Petition filed by the Department against the orders of

the erstwhile Hon'ble Andhra Pradesh Administrative Tribunal in

O.A.No.1258 of 2010, discussed the issues raised vis-a-vis F.R.24 and held

as follows:-

"Para 6: Under F.R.24 an increment shall ordinarily be drawn as a matter of course unless it is withheld. Admittedly, no orders were passed withholding of annual grade increments of respondent No.1 though he was placed under suspension for a period of three years. In the absence of order of withholding of annual grade increments, the petitioners herein are bound to release the annual grade increments of respondent No.1. That was not done so. Therefore, precisely that is the reasons why, the Tribunal directed the petitioners herein to release annual grade increments of respondent No.1 during his suspension period i.e., from 01.08.2006 to 01.08.2009 and that order needs no interference by this Court."

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10. Following the orders of the said Division Bench, the learned Single

Judge in W.P.No.3334 of 2019 and W.P.No.5217 of 2019 vide orders

dated 15.03.2019 and 18.04.2019 respectively allowed the same. Further

rejecting the similar contentions advanced on behalf of respondents as in

the present Writ Petition, another learned Judge in W.P.No.9228 of 2021

while referring to the judgment of a Division Bench in

W.P.No.6617 of 2004 held that withholding of increments to the petitioner

therein is contrary to the settled law. The relevant portions of the order of

the learned Single Judge may be extracted for ready reference:-

"Sri Metta Chandra Sekhar, learned standing counsel argues in line with what is mentioned in his counter. According to him FR-24 is applicable and the respondents have a right to withhold the increments. It is his clear submission that as the petitioner is accused of a crime by the ACB, he should not be granted the order. It is his contention that the suspension has also been removed and he is earning a salary. If the petitioner is convicted, the learned standing counsel submits that the petitioner may also been removed and he is earning a salary. If the petitioner is convicted, the learned standing counsel submits that the petitioner may also face serious repercussion. Therefore, he urges that this is not a case to grant an order at this stage.

After hearing the submissions and considering the law, this Court is of the opinion that as rightly pointed out by the learned counsel for the petitioner FR-24 fell for consideration in the Division Bench judgment i.e., W.P.No.6617 of 2004. The Division Bench clearly held that order of withholding increment is an exception rather than the rule and that the increment can only be withheld on proof of case, unsatisfactory service or bad conduct. It is also mentioned that such an order should state the period from which it is withheld and whether the postponement shall have the effect of withdrawal, postponing the future increments also. Ultimately, the learned Judges concluded that an order holding the increment is in the nature of a penalty and can only be issued if due process if followed. The same is reiterated in the subsequent judgment of the Bench and also of the learned Single Judge. This is applicable to the present facts and nothing to the contrary was pointed out by the respondents."

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11. In the light of the above legal position, based on a binding

precedent of the Hon'ble Division Bench, the contentions advanced by the

learned counsel for the respondents, merits no acceptance.

12. Accordingly, the Writ Petition is allowed. The respondents are

directed to release Annual Grade Increments to the petitioner which fell

due from 08.10.2017 to till date, if no order is passed so far, withholding

the said increments. No order as to costs.

As a sequel, miscellaneous applications, if any, pending shall stand

closed.

__________________ NINALA JAYASURYA, J Date: 08.12.2021

IS

NJS, J W.P.No.15265 of 2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

Writ Petition No.15265 of 2021 Date: 08.12.2021

IS