Madhukar S/O Sadhuji ... vs The Chairman And Managing ...
2017 Latest Caselaw 2139 Bom

 0305WP4462.13-Judgment                                                                         1/9


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                      WRIT PETITION NO. 4462   OF    2013


 PETITIONER :-                        Madhukar   S/o   Sadhuji   Lingayatwani,   Age:
                                      55   years,   Occupation   :   Retired,   R/o:   A-1
                                      Shrinath   Sai   Nagar,   Ring   Road,   Nagpur-
                                      440027.                 

                                         ...VERSUS... 

 RESPONDENTS :-                  1. The Chairman & Managing Director, Bank of
                                    Baroda,   Corporate   Center,   C-26,   G-Block,
                                    Bandra-Kurla Complex, Mumbai-400057.
                                 2. The General Manager, Zonal Office (M & G),
                                    Bank   of   Baroda,   11/1,   Sharda   Centre,
                                    Khillare Path, Erandvana, Pune-411004.
                                 3. The   Dy.General   Manager,   (G&W.M.Reg),
                                    Bank   of   Baroda,   Plaza   Chambes,   4th  floor,
                                    Panaji, Goa-403001. 

 ---------------------------------------------------------------------------------------------------
                     Mr.B.B.Meshram, counsel for the petitioner.
                   Mr.C.S.Samudra, counsel for the respondents.
 ---------------------------------------------------------------------------------------------------

                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    MRS.SWAPNA JOSHI
                                                                     ,   JJ.

DATED : 03.05.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this writ petition, the petitioner challenges the action

on the part of the respondent-bank of not releasing the arrears of

subsistence allowance on account of wage revision and the amount

contributed by the petitioner towards the provident fund.

0305WP4462.13-Judgment 2/9

2. Few facts giving rise to the petition are stated thus :-

The petitioner was appointed as a clerk in the respondent-

bank in the year 1977 and was working as a branch manager at Latur

when he was placed under suspension pending a departmental enquiry,

on 26/05/2008. During the period of suspension of the petitioner, a

decision was taken by the respondent-bank of revising the pay of its

employees and by the said decision dated 27/04/2010, the pay was

revised with effect from 01/11/2007. The petitioner was punished after

the departmental enquiry and was dismissed from service. An amount

of Rs.1,15,258/- was credited to the account of the petitioner in the

bank on 16/08/2010, however, the amount of Rs.85,399/- out of the

said amount was recovered on the ground that the said amount was

being paid to the petitioner towards the subsistence allowance, in

excess. An amount of Rs.8,76,000/- was payable to the petitioner as

the same was his contribution towards the provident fund. After

deducting a sum of Rs.6,24,000/- towards housing loan dues, according

to the petitioner, it was necessary for the bank to pay an amount of

Rs.2,52,252/- to the petitioner but the bank forfeited the amount on the

ground that the petitioner had caused loss to the respondent-bank by

the acts of misconduct that were proved against him. The petitioner has

challenged the action on the part of the respondent-bank in withholding

a sum of Rs.85,399/- that was liable to be paid to the petitioner towards

subsistence allowance and a sum of Rs.2,52,252/- that was liable to be

0305WP4462.13-Judgment 3/9

refunded to the petitioner as his contribution towards the provident

fund.

3. Shri Meshram, the learned counsel for the petitioner,

submitted that the petitioner was suspended with effect from

28/05/2008 and the pay revision was brought into effect on

01/11/2007, i.e. prior to the date of his suspension, though the decision

to revise the pay was taken by the bank during the suspension period. It

is submitted that since the pay of the employees was revised with effect

from 01/11/2007 and the petitioner was suspended from 28/05/2008,

it was necessary for the bank to grant the subsistence allowance to the

petitioner as per the pay scale revised on 01/11/2007. It is submitted

that the bank has wrongfully withheld an amount of Rs.85,399/- from

the amount payable to the petitioner towards subsistence allowance. It

is submitted that the petitioner has no grievance about the action on the

part of the bank of deducting an amount of Rs.6,24,000/- towards

housing loan dues from the contribution of the petitioner towards

provident fund but the petitioner has a serious objection in regard to

the action on the part of the respondent-bank of withholding a sum of

Rs.2,52,252/- on the ground that the petitioner had caused financial

loss to the bank. It is submitted that no charge in regard to causing of

financial loss to the bank was framed against the petitioner and the

disciplinary authority has not dismissed the petitioner for causing

0305WP4462.13-Judgment 4/9

financial loss to the bank. It is submitted that causing of financial loss

to the bank is a reason that is put forth by the bank for wrongfully

withholding the sum of Rs.2,52,252/- from the amount that is liable to

be returned to the petitioner.

4. Shri Samudra, the learned counsel for the respondent-

bank, has supported the action of the bank. It is submitted by placing

reliance on the Bank of Baroda Provident Fund Rules, specially rule 5 of

the Bank of Baroda Provident Fund Rules under caption "subsistence

allowance" to state that in case pay scales are revised during the period

of suspension, the employee will not get the benefit of the revised pay

since the subsistence allowance is based on the basic pay which the

officer was receiving prior to his suspension. It is submitted that though

the revision in the pay scale was brought into effect from 01/11/2007, a

decision to revise pay was taken on 27/04/2010 and hence, the

petitioner was not entitled to seek the subsistence allowance on the

basis of the pay revision. It is stated that the petitioner would not be

entitled to the refund of the amount of Rs.2,52,252/- that was

contributed by the petitioner towards provident fund, as the petitioner

has caused financial loss to the bank to the tune of Rs.85,00,000/-. It is

submitted that after the petitioner was dismissed from service, he was

informed by the notice dated 09/04/2012 that he had caused loss to the

bank and hence the amount of Rs.2,52,252/- could not be returned to

0305WP4462.13-Judgment 5/9

him. It is however, fairly admitted by the learned counsel for the bank

that there is no finding in the departmental enquiry proceedings that

particular loss was caused to the bank due to the misconduct on the

part of the petitioner. It is further fairly admitted that there is no

quantification of the loss either by the enquiring authority or by the

disciplinary authority. It is however stated that after the petitioner was

dismissed, it was communicated to him that the loss caused to the bank

due to his misfeasance amounted to Rs.85,00,000/-.

5. On hearing the learned counsel for the parties, it appears

that the respondent-bank was not justified in not paying the subsistence

allowance to the petitioner as per the pay scale revised on 01/11/2007,

though the petitioner was suspended with effect from 28/05/2008.

Rule 5 pertaining to "subsistence allowance" in the Bank of Baroda

Provident Fund Rules reads thus -

5. In case pay scales are revised during the period of suspension, officer employee will not get benefit of the revised pay since the subsistence allowance is based on the basic pay which, the officer was receiving prior to suspension.

It is apparent from the rule that in case pay scales are

revised during the period of suspension, the suspended officer or

employee would not get the benefit of the revised pay, but if the pay

scales are revised with effect from the date prior to the suspension of

0305WP4462.13-Judgment 6/9

the employee or the officer, the employee or the officer would be

entitled to the subsistence allowance as per the revised pay. In the

instant case, though the bank took a decision on 27/04/2010, i.e.

during the pendency of the petitioner's suspension to revise the pay

scale, the pay revision was brought into effect from 01/11/2007.

Admittedly, the petitioner was suspended on 28/05/2008 and the pay

revision was brought into effect on 01/11/2007. Rule 5 of the Rules

pertaining to subsistence allowance on which great reliance is placed by

the counsel for the respondent-bank for not paying the subsistence

allowance to the petitioner as per the pay revision with effect from

01/11/2007, would not entitle the officer or employee to the revised

pay if the pay scales are revised during the period of suspension. The

rule pertains to the revision of pay scales and not to the decision

pertaining to the revision of pay scales. What is liable to be considered

is as to whether the pay scales were revised from a date prior to the

order of suspension or during the period of suspension. Sometimes, a

decision to revise the pay scale may be taken before an employee is

suspended but the pay revision could be brought into effect after the

employee is suspended. In that case, may be, it could be said that the

pay scales are revised during the suspension period. What is necessary

to be looked into while considering rule 5 is not whether the decision to

revise the pay scale is taken during the period of suspension and it

would be necessary to consider whether the pay scales are brought into

0305WP4462.13-Judgment 7/9

effect during the period of suspension. It would be necessary to refer to

the judgment of the Hon'ble Supreme Court, reported in (2010) 2 SCC

763 (Union of India v. R.K.Chopra) in this regard. It is held by the

Hon'ble Supreme Court that if the revision of pay takes effect from a

date prior to the date of suspension of a government servant, then he

would be entitled to the benefit of the revised pay but if the revision of

the pay scale takes effect from a date falling within the period of

suspension then the benefit of revision of pay and the subsistence

allowance would accrue to him only if he is reinstated, depending on

the fact whether the period of suspension is treated as duty period or

not. In the instant case, the first part of the observations made by the

Hon'ble Supreme Court would come into play. In the instant case, the

revision of pay scale has taken effect from a date prior to the date of

suspension. The date of suspension is 28/05/2008 whereas the date of

pay revision is 01/11/2007. The pay revision is brought into effect

from 01/11/2007, whereas the petitioner was suspended much later i.e.

on 28/05/2008. Merely, because the decision to revise the pay scales

was taken on 27/04/2010, the respondent-bank cannot be heard to say

that the benefit of the pay revision cannot be granted in favour of the

petitioner, though the pay revision has actually taken effect from a date

which is prior to the date of the suspension of the petitioner. The

reliance placed by the learned counsel for the bank on rule 5 of the

Rules pertaining to the 'subsistence allowance' is not well founded and

0305WP4462.13-Judgment 8/9

the bank cannot defend the claim of the petitioner on the basis of the

said Rules. In our view, it was necessary for the bank, in the

circumstances of the case to pay the subsistence allowance to the

petitioner as per the pay scale, as revised on 01/11/2007. The bank had

initially credited the amount of Rs.85,399/- in the bank account of the

petitioner and rightly so, but for the reasons best known to the bank,

the said amount was subsequently withdrawn by taking an incorrect

view.

6. We also do not find any merit in the submission made on

behalf of the bank that the amount of Rs.2,52,252/- was not returned to

the petitioner, though it was referable to the petitioner's contribution

towards provident fund, as the petitioner had caused loss to the bank to

a great extent. We find that neither the enquiry officer nor the

disciplinary authority have recorded any finding in regard to the actual

loss caused to the bank due to the acts of misfeasance on the part of the

petitioner. We also do not find that any charge that the petitioner had

caused loss to a particular extent in view of the acts committed by him,

was levelled against the petitioner in the departmental enquiry. In the

absence of any such charge and a finding by the enquiry officer in

regard to the actual loss caused to the bank in view of the acts of

misfeasance on the part of the petitioner, we do not find any propriety

in the action of the bank of not returning the sum of Rs.2,52,252/- that

0305WP4462.13-Judgment 9/9

was liable to be refunded to the petitioner, as that was the petitioner's

own contribution towards the provident fund. After the culmination of

the departmental enquiry, where no finding of particular loss being

caused to the bank is recorded, the bank could not have simply by the

communication dated 09/04/2012 informed the petitioner that the

petitioner had caused loss to the bank to a great extent. Unless the

petitioner was granted an opportunity in this regard, specially in the

departmental enquiry that was conducted against him, the respondent-

bank could not have withheld the amount of Rs.2,52,252/- from the

petitioner's contribution towards the provident fund after his dismissal.

We find that it would be necessary for the bank to refund the amount of

Rs.85,399/- and Rs.2,52,252/- to the petitioner at the earliest.

7. Hence, for the reasons aforesaid, the writ petition is

allowed. The respondent-bank is directed to pay a sum of Rs.3,37,651/-

(Rs.85,399 + Rs.2,52,252) to the petitioner within four weeks. Rule is

made absolute in the aforesaid terms with no order as to costs.

                        JUDGE                                              JUDGE 


 KHUNTE