Madras High Court
N.Ramar vs The Principal Accountant General on 7 October, 2021
W.P.(MD)No.13102 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.13102 of 2014
and
M.P.(MD)No.1 of 2014
N.Ramar ... Petitioner
vs.
1.The Principal Accountant General,
(Accounts and Entitlements)Tamilnadu,
Accountant General Office,
281, Annasalai, Chennai.
2.The Director,
Elementary Education,
Directorate of Elementary Education,
College Road, DPI Campus, Chennai.
3.The District Elementary Education Officer,
Virudhunagar, Virudhunagar District.
4.The Additional Assistant Elementary Education Officer,
Srivilliputtur, Virudhunagar District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus to call for records
relating to the Government letter for PEN 18/3/416, dated 13.12.2012,
passed by the first respondent herein and quash the same and to direct the
1/18
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W.P.(MD)No.13102 of 2014
respondents to revise and refix the petitioner's pension as per the
petitioner's correct increment from 01.07.2008.
For Petitioner : Mr.M.Joseph Thatheus Jerome
for Mr.S.Alagusundar
For R-1 : Mr.P.Gunasekaran
For R2-R4 :Mr.M.Linga Durai
Government Advocate
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the Government letter issued by the first
respondent, dated 13.12.2012, and to direct the respondents to revise and
refix the petitioner's pension, as per his correct pay by taking into
account the correct increment from 01.07.2008.
2.Heard Mr.M.Joseph Thatheus Jerome, learned Counsel
appearing for the petitioner, Mr.P.Gunasekaran, learned Counsel
appearing for the first respondent and Mr.M.Linga Durai, learned
Government Advocate appearing for respondents 2 to 4.
3.The petitioner is a retired Teacher, who retired on 31.08.2008.
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He originally joined as a Secondary Grade Teacher in the year 1975 at
Thombakulam, Srivilliputtur Taluk, Virudhunagar District. The petitioner
was then promoted as Headmaster and posted at Nallakamalapuram on
05.07.1995. Subsequently, on 27.09.1995, he was promoted as Middle
School Headmaster (Graduate cadre). It is admitted that on 14.08.2002,
the petitioner was promoted as Additional Assistant Elementary
Education Officer and posted at Radhapuram Range in Tiruneveli
District.
4.While in service, the petitioner was issued with a charge memo
under Section-17B of Tamil Nadu Civil Service (Discipline and Appeal)
Rules. The disciplinary proceedings initiated against the petitioner ended
with a punishment of stoppage of increment for a period of three months
without cumulative effect. The order of punishment, dated 15.04.2008,
was just four months before the petitioner's retirement.
5.The petitioner in the affidavit filed in support of this Writ
Petition stated that his next increment date falls due on 01.07.2008.
Since the punishment was stoppage of increment for a period of three
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W.P.(MD)No.13102 of 2014
months ie., from 01.07.2008 to 01.10.2008 and the petitioner retired on
31.08.2008, it is stated that the order of punishment, dated 15.04.2008,
has been interpreted to deny the petitioner's benefit of increment that fell
due on 01.07.2008. It is stated that the fourth respondent by order, dated
21.07.2008, directed the stoppage of increment for three months and to
re-deposit the amount towards third month in Government account.
6.The grievance of the petitioner is that he is receiving pension
calculating the increment that was given to the petitioner upto 2007.
Though the increment for the month of August 2008 was not given due to
the pendency of disciplinary proceedings, the petitioner submitted that
the annual increment, which was due from January 2008 or from
01.07.2008, cannot be neglected for the purpose of calculating pension.
7.Earlier, the petitioner filed a Writ Petition before this Court to
revise and refix his pension, as per the increment that was due to the
petitioner from August 2008. By an order, dated 24.04.2012, the Writ
Petition filed by the petitioner was disposed of by this Court with a
direction to the second respondent to consider the representation of the
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W.P.(MD)No.13102 of 2014
petitioner, dated 25.07.2011, and pass appropriate orders on merits.
Thereafter, the second respondent has forwarded the proposal to the first
respondent, who in turn, passed the impugned order holding that the
petitioner is not eligible for the increment, which fell due from
01.07.2008. Stating that the petitioner was admitted in hospital due to
his illness, the petitioner has filed the present Writ Petition only in 2014.
8.The learned Counsel appearing for the petitioner submitted that
the impugned order of first respondent is violative of Article 14 of
Constitution of India and against the principles of natural justice. The
learned Counsel then relied upon the proceedings of the fourth
respondent, dated 21.07.2008, which is extracted below:
“=tpy;ypg;Gj;J}h; xd;wpak;> ,dhk;fhpry;Fsk;> Cuhl;rp
xd;wpa eLeiyg; gs;spj; jiyik Mrphpah; jpU.eP.,uhkh;>
vd;ghUf;F jpUney;Ntyp khtl;lk;> ,uhjhGuk; $Ljy; cjtp
njhlf;f fy;tp mYtyuhfg; gdpahw;wpa fhyj;jpy;> md;dhh;
kPJ jkpo;ehL FbKiwg; gzpfs; (xOq;F kw;Wk;
Nky;KiwaPL) tpjpfspy;17(gp)d;gb xOq;F eltbf;if
Nkw;nfhz;L> mt;tpjpapd; fPohd Fw;wr;rhl;L> jd;dpiy
tpsf;fk;> tprhuiz mwpf;if Mfpait njhlf;f
fy;tp ,af;Feh; mth;fshy; Ma;T nra;ag;gl;L md;dhhpd;
mLj;J tUk; xU Cjpa cah;tpid %d;W khj fhyj;jpw;F
epWj;jk; nra;a KbT nra;ag;gl;L mt;thNw md;dhhpd;
mLj;J tUk; Cjpa cah;it jpuz;l gadpd;wp %d;W
khjk; epWj;jk; nra;J (stoppage of one increment for three
months without cumulative effect) ghh;itapy; fhZk;
nray;Kiwfspy; cj;jutplg;gLfpwJ.
md;dhhpd; mLj;j Cjpacah;T ehs; 01.01.2008.
md;dhh; Xa;T ngWk; ehs; 31.8.08 (gpwe;j Njjp 24.8.50)
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W.P.(MD)No.13102 of 2014
vd;gjhy;> md;dhh; ,uz;L khj fhyNk gzpapy; ,Uf;f
Ntz;ba epiy cs;sJ.
vdNt> ghh;itapy; fhZk; ,af;Feh; mth;fspd;
nray;Kiwfspy; fz;l cj;jutpd;gb> md;dhuJ mLj;j
Cjpa cah;tpid (01.07.08) ,uz;L khj fhyj;jpw;F epWj;jp
itj;Jk;> %d;whtJ khjj;jpw;Fhpa Cjpa cah;Tj;
njhifapid chpa gbfSld; muRf; fzf;fpy; jpUk;gr;
nrYj;jp mjw;fhd mry; nrYj;Jr; rPl;bid
cldbahf ,t;tYtyfj;jpw;F mDg;gp itf;fTk;
cj;jutplg;gLfpwJ.”
9.The fact that the petitioner paid a sum of Rs.1,821/- in lieu of
punishment for stoppage of increment for three months is not in dispute.
From the communication of the fourth respondent, dated 21.07.2008, the
learned Counsel for the petitioner submitted that the petitioner's next
increment was due from 01.01.2008. Though the fourth respondent by
this order directed the petitioner to pay the increment that was due for the
three months before retirement, it is contended that the petitioner has
paid a sum of Rs.1,821/- towards the increment for three months.
Thereafter, the petitioner approached the respondents for disbursement of
pensionary benefits. By the impugned order, the first respondent directed
the second respondent to note that no revision of pensionary benefits is
admissible to the petitioner and that therefore, the pension proposals and
service register are returned for further action by the second respondent.
From the narration of events and the discussion, this Court is able to see
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that the first respondent has recorded the following facts.
“a)The Additional Assistant Elementary Education Officer has
forwarded the revised proposals for revision of pensionary benefits after
awarding an increment for 01.07.2008. It is specifically noted that
increment fell due on 01.07.2008 was not awarded to the petitioner on
account of imposition of penalty of stoppage of increment for three
months without cumulative effects.
b)The second respondent interpreted the rules to mean that the
recovery of monetary value is not an independent punishment by itself
and it can be resorted to, when the main punishment covered by Rule
8(iii) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot
be given effect to.
c)The recovery of equivalent monetary value is not a substitution
for main punishment. In all such cases, where increment should not be
drawn and in addition, the monetary value should also be recovered for
the unexpired portion of the punishment.
10.From the above, it is seen that the second respondent has
rejected the proposal for revision of pensionary benefits to the petitioner
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mainly on the interpretation of the rules. It is pointed out by the learned
Counsel for the petitioner that the rule, which was quoted in the order of
second respondent, is not the relevant rule. However, he admitted that
the same rule is found in Rule 8 of Tamil Nadu Civil Service (Discipline
and Appeal) Rules. It is relevant to extract Rule 8 of the Tamil Nadu
Civil Service (Discipline and Appeal) Rules, which read as follows:
“8.The following penalties may, for good and sufficient reason
and as hereinafter provided, be imposed upon every person who is a
member of the civil service of the State and every person holding a
civil post under the State specified in rule 2, namely :-
(i) Censure;
(ii) Fine (in the case of persons for whom such penalty is
permissible under these rules) ;
(iii) Withholding of increments or promotion ;
* Provided that the penalty of withholding of increment shall
not be imposed on a Government servant, if the said penalty cannot be
given effect to fully while in service :
Provided further that incases where the penalty of withholding
of increment cannot be given effect to fully for any contingency that
arose after the penalty of withholding of increment is imposed, the
monetary value equivalent to the amount of such increments that can
not be given effect to shall be recovered from the person : Provided
also that in cases of withholding of increment with cumulative effect,
the monetary value equivalent to three times the amount of increments
ordered to be withheld shall be recovered.
( vide G.O.Ms.No.113, Personnel and Administrative Reforms
(N) Department dated 2.8.2006) ( with effect from 2.8.2006)
(iv) Reduction to a lower rank in the seniority list or to a lower
post not being lower than that to which he was directly recruited,
whether in the same service or in another service, State or
Subordinate, or to a lower time-scale, not being lower than that to
which he was directly recruited, or to a lower stage in a time-scale ;
Provided that in cases where the punishment of reduction to a
lower stage in a time-scale cannot be given effect to fully, the monetary
value equivalent to the difference in emoluments as a result of
reduction to such lower stage in the time-scale for the unexpired
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W.P.(MD)No.13102 of 2014
period of the punishment shall be recovered from the person.
(v) Recovery from pay of the whole or part of any pecuniary
loss caused to the State Government or the Central Government or to
any Government Company or Organisation or Local Authority or to a
Local Body, while on deputation, by negligence or breach of orders;
(vi) Compulsory retirement;
(vii) Removal from the Civil Service of the State Government;
(viii) Dismissal from the Civil Service of the State Government;
and
(ix) Suspension, where a person has been suspended under rule
17(e), to the extent considered necessary by the authority imposing the
penalty.
The penalties mentioned in items (i) to (iii), (v) and (ix) shall be
deemed to be minor penalties and those in items (iv) and (vi) to (viii)
shall be deemed as major penalties.
The penalties mentioned in items (vi),(vii) or (viii), as the case
may be, shall be imposed on a Government servant for the violation of
rule 19 of the Tamil Nadu Government Servant’s Conduct Rules, 1973.
Explanation-I .- The discharge,-
(i) of a person appointed on probation before the expiry or at
the end of the prescribed or extended period of probation ; or
(ii) of a person engaged under contract, in accordance with the
terms of his contract ; or
(iii) of a person appointed, otherwise than under contract, to
hold a temporary appointment on the expiration of the period of the
appointment, does not amount to the removal or dismissal within the
meaning of this rule.
Explanation-II.- The following shall not amount to a penalty
within the meaning of this rule, namely :-
(i) withholding of increments of pay of a Government servant
for his failure to pass any Departmental examination in accordance
with the rules or orders governing the Service to which he belongs or
post which he holds or the terms of his appointments;
(ii) non-promotion of a Government servant, whether in a
substantive or officiating capacity, after consideration of his case, to a
service, grade or post for promotion to which he is eligible;
(iii) reversion of Government servant officiating in a higher
service, grade or post to a lower service, grade or post, on the ground
that he is considered to be unsuitable for such higher service, grade or
post or on any administrative ground unconnected with his conduct;
(iv) reversion of a Government servant, appointed on probation
to any other service, grade or post, to his permanent service, grade or
post during or at the end of the period of probation in accordance with
the terms of his appointment or to the rules and orders governing such
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W.P.(MD)No.13102 of 2014
probation;
(v) replacement of the services of a Government servant, whose
services had been borrowed from a State Government or the Central
Government or an authority under the control of a State Government
or the Central Government at the disposal of the State Government or
the Central Government or the authority from which the services of
such Government servant had been borrowed; and
(vi) compulsory retirement of a Government servant in
accordance with the provisions relating to superannuation or
retirement.
Explanation-III .- The removal of a person from the civil
service of the State Government shall not disqualify him for future
employment but the dismissal of a person from the Civil Service of the
State Government shall ordinarily disqualify him for future
employment”
11.From the way in which the second respondent interpreted the
Rule 8(iii), this Court is of the view that the second respondent has
interpreted Rule 8(iii) quite opposite to the object and the meaning, that
was conveyed by the Rule itself. Rule 8(iii) refers to withholding of
increments or promotion as one of the punishments. The first proviso
clearly says that the punishment of withholding of increment shall not be
normally imposed on a Government servant, if the penalty cannot be
given effect to fully while in service.
12.In the present case, the petitioner was imposed with a
punishment of stoppage of increment for a period of three months
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without cumulative effect. The order of punishment was dated
15.04.2008, and taking that the punishment was in force for a period of
three months from 15.04.2008, the punishment was over before the date
of retirement. In other words, the punishment was to commence from
15.04.2008 and it will end on 15.07.2008, that is before retirement.
However, on the basis of previous communication, the respondents as
well as the petitioner presumed that the punishment commenced from
01.07.2008. Therefore, it is a case where such punishment cannot be
imposed, as per the first proviso.
13.The second proviso squarely applies to the case on hand
explaining the situation and provides the only option that is given to the
employer. The second proviso now recommends a punishment of
recovery from the person, when the penalty of withholding of increment
cannot be given effect to. Therefore, the petitioner, who retired on
31.08.2008, can be imposed the punishment of stoppage of increment for
a period, which would continue after his retirement. However, there can
be recovery of a sum, which is equivalent to the monetary value of
increment for three months. In this case, if the punishment was on the
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basis of second proviso, there cannot be a further punishment than
recovery of the monetary value equivalent to the amount of increments
for three months.
14.Very strangely, the second respondent by the impugned order
came to the conclusion that the punishment that was suggested by second
and third proviso to Rule 8, is only additional and that the person, whose
increment is due from 01.07.2008, cannot be given the benefit of
increment, as the punishment of stoppage of increment will be over only
after the period of retirement. This is not only arbitrary but also illegal
and not supported by the Rule. In the impugned order, Rules 8(iii) and
8(v)(b) of Civil Service (Discipline and Appeal) Rules, is quoted. Hence,
the impugned order is based on a Rule, which is not applicable, as no
Rule 8(v)(b) is found in Tamil Nadu Civil Services (Discipline and
Appeal) Rules.
15.The learned Counsel for the first respondent relied upon a
judgment of Andhra Pradesh High Court in the case of Principal
Accountant General and another vs C.Subbarao reported in 2005 (2)
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W.P.(MD)No.13102 of 2014
ALD 1, wherein, the point framed for consideration was whether a
Government servant, who retires on the last working day of the
proceeding month and whose annual increment falls due on the first of
the succeeding month, is entitled for sanction of annual increment for the
purpose of pension and gratuity. That was a peculiar case, where, the
Government servant retired on the last day of the previous year, whereas,
his next increment falls due on the first day of next year. Though it was
contended by the Government servant that he had worked for the whole
year and earned for the next increment, the High Court, based on the
interpretation of Rules and regulation, rendered a specific finding that
from the date of retirement, the petitioner therein ceased to be
Government servant and that a Government servant, who retires on his
last working day would not be entitled to any pay or any other benefits
connected to his pay. Since annual increment payable to a Government
servant will accrue from the date following the date on which it is
earned, it is further held that the Government servant would get a right
for annual increment only after completion of the year and that therefore,
on the date when the increment falls due, it would not become payable.
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16.The issue or question that arose before the Andhra Pradesh
High Court has nothing to do with the present case, which revolves
around a different factual and legal basis. The Andhra Pradesh High
Court has held that the Government servant, who retired on the last
working day of the month, shall be ceased to be a Government employee
with effect from the mid night of that day and immediately after
commencement of next day, that is after mid night, he becomes
pensioner. It was further held that the Government servant, who was
paid pension after his retirement, shall not be deemed to be on duty and
therefore, annual increment cannot be sanctioned to the retired
Government servant after his service.
17.In the present case, the only factual issue that was raised by the
the learned Counsel for the first respondent is that the increment fell due
only on 01.07.2008 and that the punishment of stoppage of increment for
three months should commence from 01.07.2008. It was also submitted
that the increment fell due from 01.07.2008. The submissions of the
learned Counsel for the first respondent is without any factual
background. In this case, the increment was due from 01.01.2008. Even
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W.P.(MD)No.13102 of 2014
in the communication of the fourth respondent, dated 21.07.2008, it is
stated that the next annual increment was due for the petitioner from
01.01.2008. The first respondent also in the impugned communication
has observed as follows:
“It is now seen that the Additional Assistant Elementary
Educational Officer, Srivilliputhur has forwarded revised
proposals for revision of pensionary benefits after awarding an
increment for 1.7.2008 which was originally not awarded to him
on account of the imposition of the penalty of stoppage of
increment for 3 months without cumulative effect.”
18.From the reading of affidavit and the communications with
reference to the service register, as acknowledged by the respondents,
this Court has no hesitation to hold that the annual increment to the
petitioner was due from 01.01.2008 and it was not given to him in view
of the pendency of disciplinary proceedings. Assuming that the
petitioner has admitted that the next increment will fall only from
01.07.2008, by virtue of the interpretation given by this Court to first and
second proviso to Rule 8 of Tamil Nadu Civil Services (Discipline and
Appeal) Rules, the petitioner cannot be denied the benefit of increment
for the year 2008, which fell due before his retirement. As observed by
this Court earlier, the first respondent has passed the impugned order on
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a wrong interpretation of Rule 8 and his attempt was to deny the benefit,
which was sought to be preserved by the State by the Rule itself.
19.For the above reasons, this Court is unable to sustain the order
of first respondent, dated 13.12.2012 and hence, the same is set aside and
the Writ Petition is allowed. The respondents are directed to revise and
refix the petitioner's pension by calculating the petitioner's next
increment, which he is entitled to, either from 01.01.2008 or from
01.07.2008, within a period of twelve weeks from date of receipt of a
copy of this order. No costs. Consequently, connected miscellaneous
petition is closed.
Index :Yes / No 07.10.2021
Internet :Yes
tmg/cmr
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W.P.(MD)No.13102 of 2014
To
1.The Director,
Elementary Education,
Directorate of Elementary Education,
College Road, DPI Campus, Chennai.
2.The District Elementary Education Officer,
Virudhunagar, Virudhunagar District.
3.The Additional Assistant Elementary Education Officer,
Srivilliputtur, Virudhunagar District.
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W.P.(MD)No.13102 of 2014
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.13102 of 2014
07.10.2021
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