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Madhya Pradesh High Court · body

2013 DIGILAW 1027 (MP)

Suryabhan Patel v. M. P. State Electricity Board

2013-08-29

K.K.TRIVEDI

body2013
Judgment: K.K. Trivedi, J. 1. This petition under Article 226 of the Constitution of India is directed seeking relief against the respondents to grant the benefit of higher pay scale on completion of 25 years of service to the petitioner with effect from 16.07.2004. It is contended that the respondent M.P. State Electricity Board (herein after referred to as 'MPEB') has formulated a policy for granting the higher pay scale to an employee, who has completed 9/18/25 years of service continuously in one pay scale without any promotion. It is contended that the petitioner was granted the benefit of higher pay scale on completion of requisite years of service. He was due for grant of this benefit on completion of 25 years of service from 16.07.2004. The petitioner submitted an application to this effect on 19.10.2004. However, he was informed that a departmental enquiry is pending against him and, therefore, such a claim of the petitioner cannot be considered till the departmental enquiry is finalized. The said departmental enquiry was concluded on 31.03.2006. The petitioner was exonerated and only a warning was given to him. In view of the aforesaid order passed in the departmental enquiry, the application of the petitioner was referred to the authorities by the respondent No. 3 on 07.06.2006. However, despite making repeated representations, such a claim of the petitioner was not granted. The petitioner demanded that in case he has not been found fit for grant of such benefit, the reasons may be intimated to him. Ultimately, by memo dated 04.01.2010 it was informed to the Superintending Engineer, where the petitioner was working, that the information in that respect is already sent and, therefore, the petitioner be informed accordingly. It is contended that since reasons were not informed in appropriate manner, in fact the case of the petitioner was not at all considered in terms of the scheme, therefore, the present writ petition was required to be filed. On the basis of these allegations, the petitioner has claimed the reliefs in the following manner: (i) That, the Hon'ble Court may be pleased to direct the respondents to grant the benefit of 25 yearly higher pay scale w.e.f. 16.07.2004 with interest and other consequential benefits. (ii) Any other relief which this Honorable Court may deems fit and proper may kindly be granted. (ii) Any other relief which this Honorable Court may deems fit and proper may kindly be granted. Upon issuance of notices of the writ petition, the respondents have filed the return and have contended that in terms of the scheme, an employee who is facing the departmental enquiry was not entitled to grant of such a benefit of placement in the higher pay scale. A departmental enquiry was initiated against the petitioner for serious charges of submitting false T.A. Bills and Medical Bills. On account of such departmental enquiry, the petitioner was placed under suspension vide order dated 31.03.2001. Subsequently on 30.10.2001, the suspension of the petitioner was revoked. After conclusion of the departmental enquiry in terms of the rules made applicable, final order was passed against the petitioner. However, some of the charges against the petitioner were found partially proved, though the charge of embezzlement was not found proved. Considering the aforesaid, the departmental authority reached to the conclusion that the petitioner would not be paid the amount claimed under the TA Bills and Medical Bills and said files are closed. For the misconduct, which was found proved partially, a warning was given to the petitioner. The period of suspension was regularized as duty period and full salary for the said period was paid to him. This being so, in terms of the order dated 19.07.1990 by which the scheme of grant of higher pay scale was reiterated, the case of the petitioner was considered and because of the departmental enquiry, his claim was not granted. The order subsequently has been issued on 09.11.2009 and the petitioner has been given the benefit of higher pay scale with effect from 01.04.2006. That being so, it is contended that the entire claim made in the writ petition is misconceived and petition is liable to be dismissed. 2. By filing a rejoinder, the petitioner has reiterated that when he sought the information as to why his claim is not considered, nothing was intimated to him. It is incorrect to say that proper consideration of the claim of the petitioner was done and he was not found fit for grant of such benefit. 2. By filing a rejoinder, the petitioner has reiterated that when he sought the information as to why his claim is not considered, nothing was intimated to him. It is incorrect to say that proper consideration of the claim of the petitioner was done and he was not found fit for grant of such benefit. It is further contended that if the petitioner was not visited with any penalty in the departmental enquiry, treating the warning as penalty, the petitioner could not have been denied the benefit of grant of higher pay scale from the due date. By filing an additional return, the respondents have again contended that because of the misconduct committed by the petitioner, he was not granted the benefit on completion of 25 years of service from the date as opted by him. However, since he was found fit for grant of such benefit from future date, the order was passed in that respect without any delay. That being so, it is again reiterated that the petitioner would not be entitled to any relief claimed in the writ petition. 3. Heard learned Counsel for the parties at length and perused the record. 4. It is not in dispute that the respondents have adopted the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (herein after referred to as 'Rules'). It is also not in dispute that warning is not a penalty prescribed under the Rules. If no penalty whatsoever was imposed on the petitioner except denying him payment of the TA and Medical Bills, could it be said that it was a misconduct of the petitioner for which he would not be entitled to the benefits of the scheme of grant of higher pay scale made by the respondents. Fact remains that if any amount is paid towards the T.A. Bills and Medical Bills and recovery is directed, of course it would amount to a penalty. However, refusing to reimburse the amount spent by the petitioner on travelling and medical expenses, cannot be termed to be a penalty as there is no question of recovery of any such amount from the petitioner as nothing is paid to him. Of course that will give a cause of action to the petitioner to seek redressal in that matter but at any rate the same cannot be termed to be a penalty. 5. Of course that will give a cause of action to the petitioner to seek redressal in that matter but at any rate the same cannot be termed to be a penalty. 5. Now in view of this whether it was a justified stand taken by the respondents that the petitioner would not be entitled to grant of higher pay scale on completion of 25 years of service, is to be examined. It will be necessary for this purpose to examine the scheme made by the respondents. The scheme itself has been placed on record as Annexure R-4. A circular has been issued on 29.09.2003 wherein it is prescribed that an employee/officer in promotional cadre can exercise second option for grant of higher pay scale without getting promotion to the post for which he was granted higher pay scale on his exercising the first option. It is specifically provided that grant of such benefit would be subject to fulfilling the other condition prescribed for grant of higher pay scale under the scheme dated 19.07.1990. That means the scheme made vide order dated 19.07.1990 is reiterated. The consideration is to be done in the manner indicated in the scheme in Paragraph (ix)(a), (b) and (c), which reads thus: (ix)(a) If an employee who is entitled to opt for higher pay scale and who has exercise option in accordance for giving the benefit from the date from which he has exercised the option, the intimation that the employee has not been found suitable for giving higher pay scale would be sent to the employee, as soon as possible, after decision is taken. (b) The case of such employee would be reconsidered after their CRs for subsequent years is received as is being done in the case of promotion, and it will not be necessary for the employee to give option afresh. However, if an employee himself decides not to exercise option, he should intimate about it in writing to their Controlling Officers. (c) If the employee is found fit on reconsideration in the subsequent year as noted above, he would be entitled to higher pay scale from 1st April of the following year for which the last CR is available and found fit. (c) If the employee is found fit on reconsideration in the subsequent year as noted above, he would be entitled to higher pay scale from 1st April of the following year for which the last CR is available and found fit. If such employee wants to change the date of option other than 1st April (which was offered by the Board) to avail of the benefit of next increment which is due subsequent to the date offered by the Board (i.e. 1st April of the following year), he will be allowed to do so. The employee must exercise their option within a period of 3 months from date of issue of order failing which he would not be permitted to change the date of option. 6. In the entire scheme nothing is prescribed whether an employee facing a departmental enquiry will never be considered. On the other hand in Paragraph (xvi) it is categorically prescribed that if an employee is not given the benefit because of a departmental enquiry pending against him, he would be considered only after conclusion of the departmental enquiry and the benefit would be extended in case of such employee, who has been awarded any punishment, after the period the punishment is over. However, if there is no punishment at all, whether such an employee could be refused to grant the benefit from the date opted for or not, is not prescribed. The assessment of ACRs are required to be done for the purposes of grant of higher pay scale. Nothing is indicted in the return filed by the respondents that on overall consideration of five years ACRs of the petitioner preceding the year of consideration, he was not found fit for grant of such benefit. If the ACRs of the petitioner was not written because of the suspension of the petitioner, he cannot be said to be responsible for the same as the suspension was ordered by the respondents and it was revoked by them. Further the period of suspension was already regularized as duty period for all purposes, meaning thereby that suspension of the petitioner was not warranted. Further the period of suspension was already regularized as duty period for all purposes, meaning thereby that suspension of the petitioner was not warranted. That being so, if the claim of the petitioner though was subsequently considered, was rejected only because of the ACRs grading, and he was not granted the benefit of higher pay scale with effect from the date opted for because of this reason, illegality was committed by the respondents. 7. The law in respect of such consideration is well settled. In the case of U.P. Jal Nigam and others vs. Prabhat Chandra Jain and others, AIR 1996 SC 1661 , the Apex Court has categorically held that if any ACR is coming in the way for promotion, it has to be treated as adverse. That being so, in the case of U.P. Jal Nigam vs. S.C. Atri and another, AIR 1999 SC 3362 , the Apex Court not only expunged the adverse remark but directed consideration of grant of promotion with retrospective effect. In the case of Dev Dutt vs. Union of India & others, AIR 2008 SC 2513 , again the law is reiterated by the Apex Court in this respect. Considering the aforesaid, it is clear that in fact there was no proper consideration of the case of the petitioner for grant of higher pay scale. If any ACR of the petitioner prior to the year 2004 was coming in the way of petitioner, the same was to be ignored as the same was never communicated to the petitioner. If the ACR for the period the petitioner has remained under suspension was not written, the said ACR was also required to be ignored. Since the consideration is to be done in the matter of grant of higher pay scale, in similar manner as is required to be done for grant of regular promotion, previous years' ACRs of the petitioner should have been taken into consideration and his claim should have been considered. Only after such a consideration if the petitioner was not found fit for grant of benefit of higher pay scale, he could have been given the said benefit from the date he was found fit as is indicated in the order dated 09.11.2009 (Annexure R-6). Only after such a consideration if the petitioner was not found fit for grant of benefit of higher pay scale, he could have been given the said benefit from the date he was found fit as is indicated in the order dated 09.11.2009 (Annexure R-6). Since the consideration is not done in this manner, for the purposes of grant of higher pay scale to the petitioner, the fundamental right of the petitioner for such consideration is violated by the respondents. 8. In view of the discussion made herein above, the writ petition is allowed in part. The respondents are directed to reconsider the case of the petitioner by holding a review screening committee meeting for grant of higher pay scale to the petitioner from the date opted for as prescribed in the scheme made by the respondent MPEB. While doing so, ACRs, which were not communicated to the petitioner and which are coming in his way, will be ignored. The respondents will ignore the ACR of the period of suspension of the petitioner. Instead, they will take into consideration the previous years' ACRs and will assess whether the petitioner would be entitled to grant of said benefit of higher pay scale from the date he has opted for, i.e. with effect from 16.07.2004 and pass appropriate orders after due consideration within a period of three months from today. In case the petitioner is found fit for grant of such benefit of higher pay scale from the date opted for, the orders in that respect be issued modifying the order dated 09.11.2009 extending the said benefit with retrospective effect. Consequently, fixation of pay be done and all the arrears of salary be paid to the petitioner within the aforesaid period. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.