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2019 DIGILAW 578 (ORI)

Prasanna Kumar Rout v. Odisha Gramya Bank

2019-09-12

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, by way of this writ application, seeks to challenge order dated 07.06.1995 in Annexure-5, whereby direction has been issued to recover an amount of Rs. 10,634.18 paise from the salary of the petitioner with effect from July, 1995 in 15 installments @ Rs. 750/- per month; and further seeks for direction to the opposite parties to allow annual increments to the petitioner for the years 1984, 1985, 1986 and 1987 and pay him differential salary for the said years and also allow an extra increment as per N.I.T. Award (minus) salary from 1987 till 1995. 2. The factual matrix of the case, in hand, is that "Cuttack Gramya Bank" was established under the Regional Rural Bank Act, 1976, being sponsored by the UCO Bank, and had been operating within the Cuttack Revenue District having its headquarters at Friends Colony, Bajrakbati in the town and district of Cuttack. It was guided by the guidelines of the Reserve Bank of India and National Bank of Agriculture and Rural Development (in short 'NABARD'). Subsequently, the said bank was amalgamated and a new bank was created called "Odisha Gramya Bank", having its Head Office at Gandamunda, Khandagiri, Bhubaneswar in the district of Khurda. 2.1. The petitioner, while working as Junior Clerk at Karilopatna Branch of Cuttack Gramya Bank, was placed under suspension on 01.02.1984 and subsequently he was inflicted with punishment on 14.02.1984 to the following effect: "(a) Your probation period is extended by a period of six months. (b) Your increment for three consecutive years are stopped and increment for the fourth year will be realized only after your satisfactory performance basing on the report of the Manager. (c) You are hereby warned for your illegal activities. (d) Your period of suspension will be treated as not spent on duty." In pursuance of imposition of such punishment, he was not allowed to draw annual increments for the years 1984, 1985, 1986 and 1987. Although release of increment for the year 1987 was subject to satisfactory performance, the petitioner was not allowed to draw the same, even though no communication about adverse remarks/reports was received by the petitioner, after due representation, which itself indicates the satisfactory performance of the petitioner. As the petitioner was receiving Rs. 255/- per month as basic pay in the year 1983, he should have been allowed to draw Rs. As the petitioner was receiving Rs. 255/- per month as basic pay in the year 1983, he should have been allowed to draw Rs. 275/- per month, inclusive of all the three with held increments of 1984, 1985 and 1986, in the year 1987 as basic pay, since the order of punishment stopping the petitioner from gelling three consecutive increments was not with cumulative effect. But the petitioner was allowed to draw his annual increment only in the year 1988. By virtue of the pay revision, the basic pay of the petitioner was fixed at Rs. 796/- in place of Rs. 255/- as on 01.05.1987. When the petitioner was allowed to draw his annual increment in the year 1988, his bask pay was fixed at Rs. 812/- per month (Rs. 16/- being the increment at the period in question). 2.2. Being aggrieved by the disallowance of the increment for the year 1987, the petitioner submitted a representation to opposite party no. 1 to allow him to draw the increment for the year 1987, as his performance was satisfactory during that period, and to revise his pay taking the basic pay in April, 1987 to be Rs. 275/- per month and not Rs. 255/- per month. The petitioner was allowed to draw his annual increments w.e.f. 1988 till 1995. Though the petitioner "vas entitled to get four annual increments in the year 1987, over which the pay revision benefits should have been extended, but the petitioner was allowed to grant arrear dues with the following terms: "(a) Increment [or the year 1987 and consequential benefits over the same. (b) pay revision to be made on 1987 taking the basic pay to be Rs. 275/- per month since the order of punishment was not with cumulative effect. (c) An extra increment within the meaning of N. T.T. Award for Completion of five years in service." In the above context, when the representations filed by the petitioners were pending for consideration, the opposite party No. 2, vide letter dated 07.06.1995, communicated an order to opposite party No. 3 to recover an amount of Rs. 10,634.18 paise, which is alleged to be paid In excess, from the salary of the petitioner In 15 monthly installments @ Rs. 750/- per month. The said order, accompanied with a modified fitment sheet, has also been communicated to the petitioner. 10,634.18 paise, which is alleged to be paid In excess, from the salary of the petitioner In 15 monthly installments @ Rs. 750/- per month. The said order, accompanied with a modified fitment sheet, has also been communicated to the petitioner. Though the order in question was received on 07.07.1995, but direction was given to effect recovery from July, 1995 itself. Being aggrieved by such order dated 07.06.1995 the petitioner has approached this Court by filing this application. 3. Mr. B. Dash, learned counsel appearing for the petitioner contended that by virtue of the order of punishment imposed on 14.02.1984, increments for three consecutive years were to be stopped and increment for 4th year was to be released only after the satisfactory performance of the petitioner basing on the report of the Manager. Meaning thereby, no increment is admissible to the petitioner for three consecutive years, i.e., 1984, 1985 and 1986, but for the year 1987 he has to get his annual increment, along with the basic pay admissible to him, as no adverse remarks/reports were communicated for the said year. It is further contended that after the N.I.T. Award came into force 'with effect from 01.09.1987, the basic of the petitioner was re-fixed at Rs. 580/- per month. By the time the N.I.T. Award came in force, the punishment inflicted on the petitioner has already been implemented by not allowing him to draw annual increments for the years 1984, 1985, 1986 and 1987. Therefore, it is contended that direction given, vide office order dated 07.06.1995, fixing the basic pay as on 01.09.1987 to be Rs. 550/- reducing one increment i.e. Rs. 30/- cannot sustain in the eye of law. It is further contended that in the light of the basic pay of similarly placed clerks, as is evident to be re-fixed in Annexures-6 and 7, after the N.I.T. Award, as on 01.09.1987, the petitioner ought to have been allowed to draw his annual increment for the year 1987 and receive the re-fixed salary as on 01.09.1987 considering his basic salary to be Rs. 275/- per month, instead of Rs. 255/- per month, as per the N.I.T. Award fitment formula, i.e. to protect the concept of seniority, which states that the employee who has completed six years or more be placed at least at the next higher stage. 275/- per month, instead of Rs. 255/- per month, as per the N.I.T. Award fitment formula, i.e. to protect the concept of seniority, which states that the employee who has completed six years or more be placed at least at the next higher stage. Therefore, the differential dues (total salary including increments for the years 1984, 1985, 1986 and 1987 and an extra increment as per N.I.T. Award (minus) salary allowed to be drawn from 1988 till 1995) ought to be granted to the petitioner. The petitioner though preferred an appeal, the same was rejected. Hence, he has sought for interference of this Court. 4. Mr. S.C. Samantaray, learned counsel appearing for the opposite parties argued with vehemence stating inter-alia that the National Industrial Tribunal (NIT) award dated 30.04.1990 and the recommendation of the Equation Committee dated 16.01.1991 were accepted by Government of India and instructions were issued in terms of Proviso (1) to Section 17 of the Regional Rural Banks Act, 1976 for implementation of the NIT award. He, however, categorically admitted that the petitioner was inflicted with punishment of stoppage of annual increments of three consecutive years and increment for the 4th year was to be released only after satisfactory performance basing on the report of the Manager. It is contended that action taken by the authority being in conformity with the provisions of law, the order impugned for recovery has been directed by. It is further contended that there was a direction for stoppage of annual increment of three consecutive years, but in essence the order of punishment so imposed had a cumulative effect. It is further contended that the claim of the petitioner to allow him to draw the increment in the year 1987 is thoroughly misconceived and stated that in April 1987, the pay of the petitioner could not be revised to Rs. 275/- as his basic pay continued to be Rs. 255/- till 1987, due to order of punishment, the increment for the year 1987 released on 01.05.1987 and, thereby justifies the order passed by the authority in Annexure-5. 5. This Court heard Mr. B. Dash, learned counsel for the petitioner and Mr. S.C. Samantaray, learned counsel for opposite parties and perused the record. 255/- till 1987, due to order of punishment, the increment for the year 1987 released on 01.05.1987 and, thereby justifies the order passed by the authority in Annexure-5. 5. This Court heard Mr. B. Dash, learned counsel for the petitioner and Mr. S.C. Samantaray, learned counsel for opposite parties and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. There is no dispute with regard to factual deliberation in the above paragraphs, but only question that arises for consideration is whether the punishment inflicted on the petitioner with regard to stoppage of increment for consecutive three years can be construed as a stoppage of increment for a period of three years with cumulative effect. 7. Before delving into the question it is to be considered 'whether the word "consecutive" used in imposing punishment can have a "cumulative" effect and the word "consecutive" will be equated with the word "cumulative". If that be so, then there is some force in the contention advanced by learned counsel for opposite parties. To examine the meaning attached to the 'words "consecutive" and "cumulative", it has to be first understood its plain, ordinary and grammatical meaning in consonance with the law decided by the apex Court. Before going to the above aspect, this Court first of all takes into consideration the basic principles behind the interpretation of statute. 8. It is an elementary principle of construction of statutes that the words have to be read in their literal sense. Thus, generally speaking, words and expressions would be given their plain and ordinary meaning which cannot be cut down or curtailed unless they in themselves are clearly restrictive. 9. In Nokes V. Doncaster Amaiamated Collieries Ltd., (1940) 3 ALL ER 549, VISCOUNT SIMON, L.C., said: "The golden rule is that the words of a statute must prima facie be given their ordinary meaning". 10. In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 , S.R. Das, J., referring to the golden rule of interpretation has stated: "The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. 10. In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 , S.R. Das, J., referring to the golden rule of interpretation has stated: "The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative coristructiori is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case the literal construction leads to no apparent absurdity and therefore, there can be no compelling reason for departing from their gold rule of construction." 11. In Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 , DAS GUPTA, J., referring to the rules of construction said: "The intention of the Legislature has always to be gathered by words used by it, giving to the words their plain, normal, grammatical meaning." 12. In RS Nayak v. AR Antulay, AIR 1984 SC 684 , the apex Court held: "If the words of the statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in provision." Similar view has also taken by the Apex Court in Chandvarkar Sita Ratna Rao v. Ashaiata S. Guram, (1986) 4 SCC 447 : AIR 1987 SC 117 . 13. If the language used by the legislature is clear and unambiguous, a Court of law at the present day has only to expound the words in their natural and ordinary sense; 'Verbis plane expressis amnino standum est'. In Mc Cowaan v. Baine, [1980 AC 401], LORD WATSON laid down the canon as follows": "It is said that for some reason the primary and natural meaning of the words is to be extended I am at a great loss to see why I think an Act of Parliament, an agreement, or other authoritative document, ought never to be dealt with in this way, unless for a cause amounting to a necessity or approaching to it. It is to be remembered that the authors of the document could always have put in the necessary words if they had thought fit. It is to be remembered that the authors of the document could always have put in the necessary words if they had thought fit. If they did not, it was either because they thought of the matter and did not, or because they did not, think of the matter. In neither case ought the Court to do it. In the first case it would be no make provisions opposed to the intention of the framers of the document; in the other case, to make a provision not in contemplation of these framers." 14. It is elementary that the primary duty of a court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention. A statute must be constructed in a manner which carried out the intention of the legislature. The intention of the legislature must be gathered from the words of the statute itself. 15. In Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271 , the apex Court held that If the words are unambiguous or plain they will indicate the intention with which the statute was passed and object to be obtained by it. 16. Applying the" above principle and examining the same to the meaning of word "consecutive" has been provided in various dictionary, which reads as follows: Meaning of "consecutive" In Cambridge English Dictionary is as follows: "consecutive definition: 1. Consecutive events, numbers, ere. follow one after another without an interruption : 2. following one after another without an interruption." Meaning of "consecutive" In Collins English Dictionary is as follows: "Consecutive periods of time or events happen one after the other without interruption. " Definition of "consecutive" in Vocabulary.com is as follows: "back-to-back; succeeding, coming after or following. Successive (without a break)" Meaning of "consecutive" in Oxford English Dictionary is as follows: "following each other continuously. Synonyms:- successive, succeeding, following, in succession, running, in a row, one after the other, back to back; continuous, solid, straight, uninterrupted, unbroken." Similarly, the meaning attached to the word "cumulative" as has been mentioned if different dictionaries, which reads as follows: Meaning of "cumulative" In Oxford Advanced Learner's Dictionary is as follows: "1. having a result that increased in strength or importance each time more of something is added. 2. having a result that increased in strength or importance each time more of something is added. 2. including all the amounts that have been added previously," Definition of "cumulative" In Collins English Dictionary is as follows: "If a series of events have a cumulative effect, each event makes the effect greater Synonyms: collective, increasing, aggregate, ama ssed" Meaning of "cumulative" in Cambridge English Dictionary is as follows: "increasing by one addition after another." "cumulative" in American English :- increasing as each new amount is added or as each new fact or condition is considered." Meaning of "cumulative" in Oxford Advanced Learner's Dictionary is as follows: "Increasing or increased in quantity, degree, or force b.LI successive additions Synonyms : increasing, accumulative, accumulating, growing, progressive, accruing, snowballing, mounting collective, aggregate, amassed" Definition of "cumulative" In Vocabulary.com is as follows: "1. increasing or growing by accumulation or successive additions: 2. formed by or resulting from accumulation or the addition of successive parts or elements. 3. of or relating to interest o-r dividends that, if not paid u/her: clue, became a. prior claim for payment in the future:" 17. Therefore, if the plain meaning of the word used in "consecutive" vis-à-vis "cumulative", which has been described above would be taken into consideration it has got its distinct and different meaning altogether. To clarify this position, reliance has been placed in Punjab State & Others v. Ram Lubhaya, 1983(2) SLR 410. The High Court has opined as follows: "Before proceeding further, it will have to be understood as to what is the effect of withholding of increments simpliciter, i.e. without cumulative effect, and with cumulative effect. For example, if an employee is getting Rs. 100/- at the time of imposition of penalty of withholding of increments, and the penalty is without cumulative effect for a period of two years and the annual increments were to be of Rs. 5, then in that case for two years he will continue to get Rs. 100 per month but after the expiry of two years, he will get at the time of next increment, Rs. 115, including the increment for the past two years during which period they' remained withheld...." 18. 5, then in that case for two years he will continue to get Rs. 100 per month but after the expiry of two years, he will get at the time of next increment, Rs. 115, including the increment for the past two years during which period they' remained withheld...." 18. In Punjab State Electricity Board now Punjab State Power Corporation Ltd. v. Raj Kumar Gael, in Civil Appeal No. 8366 of 2014, arising out of SLP (Civil) No. 1638 of 2014, disposed of on 29.08.2014, wherein Ram Lubhaya (supra) was taken note of, In paragraph-17 of the judgment, the apex Court held as follows: "Coming to the facts of the present case, it can be stated with certitude that the trial Court as well as the High Court has fallen into error bu opining that if the punishment of stoppage of increment without cumulative effect is imposed for a period of five years, increment is warranted to be released by the end of the year. It is an erroneous perception of the nature of punishment. When there is a stoppage of five annual increments the same are not paid during the said period and thereafter in the sixth year the increments are added up to the regular annual increment. The employee does nor get the arrears. But if the punishment is not one of stoppage of increment simpliciter the employee loses the benefit in perpetuity and after expiry of five years he would start earning the increment without any addition and it would start afresh from the first stage because it is a permanent postponement." 19. Therefore, there is no iota of doubt if the disciplinary authority has imposed a penalty of stoppage of increment for three consecutive years and increment for the 4th year would be released only after the satisfactory performance, then in 4th year the petitioner having satisfied the 2ni limb of condition, his pay has to be fixed accordingly. As it appears from Annexure-5 the order dated 07.06.1995, after making a revised fitment of scale under IT award and working group report on PRBs, the benefit has been extended by fixing his increments as due and admissible to him as on 01.09.1987 at Rs. 580/-, as on 01.11.1987 at Rs. 1000/- and as on 01.01.1991 at Rs. 1225/- and the date of next increment is to be fixed in April. 580/-, as on 01.11.1987 at Rs. 1000/- and as on 01.01.1991 at Rs. 1225/- and the date of next increment is to be fixed in April. While such revision of fitment was made, no opportunity of hearing was given to the petitioner and reasons for such revision of fitment has not been indicated in the order impugned, save and except stating that the fitments, benefits and allowance given on the basis of NIT Award read with Working Group Report are subject to revision/alternation/addition, if any clarifications will be received from Govt. of India/NABARD/Sponsor Bank any other appropriate authority. Nothing has been placed on record by the opposite parties to indicate while revising the fitment an opportunity of hearing was given to the petitioner because by virtue of the fitment already made the petitioner under Annexure-5 dated 07.06.1995 was also receiving the benefits as due and admissible to him in accordance with law. 20. On perusal of the records, it reveals that while revising the fitment of the petitioner, principle of natural justice has not been followed by giving opportunity of hearing to him. The sale of natural justice 18 fair play in action'. In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, CJU, preferred to describe natural justice as 'a duty to act fairly). In Fairmount Investments Ltd. V. Secy of State for Environment; 1976 2 ALL ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as 'a fair crack of the whip'. In R. v. Secy. of State for Home Affairs, ex p. Hosenball, Geoffrey Lane, LJ. 1977 3 All ER 452 (DC & CA), preferred the homely "phrase 'common fairness' in defining natural justice. Natural justice, another name of which sense justice, is the name of those principles which constitute the minimum requirement of (sic)ce and without adherence to which justice would be a travesty. Natural justice accordingly stands for that "fundamental quality of fairness which being adopted) justice not only be done but also appears to be done". 21. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 , the meaning of natural justice came up for consideration and the apex Court held as follows: "The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight- jacket of cast-iron formula. 21. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 , the meaning of natural justice came up for consideration and the apex Court held as follows: "The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight- jacket of cast-iron formula. Historically, "natural justice" has been used in a way, "which implies the existence of moral principles of self evident and unarguable truth", "natural justice" by Paul Jackson, 2nd Ed. Page-I, In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice". 22. In Bhagwan v. Ramchand, AIR 1965 SC 1767 , the apex Court held that the rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. 23. In Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307 , the appellant was appointed to the post of Tax Inspector. His appointment was cancelled by the authorities on the representation made by a departmental candidate who contended that a Tax Inspector's post should have been exclusively filled by promotion, The authority as well as the High Court proceeded on the assumption that the extant Government orders provided for filling up the post of Tax Inspector exclusively by promotion and therefore the appellant's appointment was illegal. The Supreme Court did not agree with the interpretation of the Government order made by the High Court. But, the Court proceeded to observe that since the order of appointment had conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording an opportunity of hearing to him. The Court observed as follows: "It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could' not be taken away without affording opportunity of hearing to him. The Court observed as follows: "It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could' not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any. opportunity of hearing to the appellant therefore the order was illegal and void." In view of law laid down by the apex Court it cannot, however, be doubted that cancellation of appointment has adverse civil consequences and therefore before making the order of cancellation the employee concerned must be given an opportunity of making a representation and the elementary of principles of natural justice has to be complied with. 24. In Rajendra v. State of Maharashtra, (2008) 11 SCC 90 , the apex Court held that even if the appointment is by mistake, the abrupt withdrawal of the same after the employee has worked for 17 months amounts to violation of natural justice. 25. Similar question had come up for consideration by this Court in OJC No. 4 763 of 1995. The Division Bench of this Court, vide order dated 02.02.2009, directed the opposite parties to calculate/compute the basic pay of the petitioner treating it to be Rs. 275/- in the year 1985 and thereafter the consequential benefits shall be calculated/computed and paid to the petitioner. It is stated at the Bar that the said order has been implemented by the opposite parties. Therefore, learned counsel for the petitioner contended that since the petitioner stands on equal footing with that of OJC No. 4763 of 1995, thereby, the order in Annexure-5 dated 07.06.1995 with regard to revised fitment and impugned direction for recovery of amount cannot sustain in the eye of law and the same is liable to be quashed. 26. It has also been brought to notice of this Court by learned counsel for the petitioner that the persons, who were appointed along with petitioner, have been allowed to draw the same salary as has been granted to the petitioner in fixing of pay in NIT Award and working group report. There by, the direction given for recovery of amount of Rs. There by, the direction given for recovery of amount of Rs. 10,634.18, from the salary of July, 1995 in 15 installments @ Rs. 750/- cannot sustain in the eye of law. 27. Since this Court, vide order dated 24.08.1995 passed in misc. case no. 5221 of 1995, has stayed further recovery of the amount as per Annexure-5, learned counsel for the petitioner states that no deduction has been made from the salary of the petitioner. 28. In view of the facts and circumstances as well as the settled position of law discussed above, this Court is of the considered view that the order dated 07.06.1995 so far as revised fitment in Annexure-5 and consequential direction for recovery of the amount from the petitioner cannot sustain in the eye of law. Accordingly, the same is liable to quashed and is hereby quashed. The petitioner is entitled to receive salary as per the fitment already made vide fitment sheet attached to Annexure-5 dated 07.06.1995 under NIT Award read with equation committee recommendation and working group report on RRB's an on 01.09.1987. 29. The writ petition is thus allowed. There shall be, however, no order as to costs.