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2023 DIGILAW 875 (AP)

Oriental Insurance Company Ltd. v. Boddu Rathaiah

2023-06-15

D.V.S.S.SOMAYAJULU, V.SRINIVAS

body2023
JUDGMENT : (D.V.S.S. Somayajulu, J.) 1. This Court has heard Sri C. Raghu, learned senior counsel instructed by Sri Poluri Bhaskar, learned for the appellants and Sri P. Durga Prasad, learned counsel for the respondent. 2. W.A.No.846 of 2022 is filed against the order passed in W.P.No.17630 of 2020, dated 30.06.2022 and W.A.No.971 of 2022 is filed against the order passed in W.P.No.41411 of 2017, dated 30.06.2022. 3. Both these writ petitions are filed by the respondent in the present appeals. The respondent herein was charge sheeted, an enquiry was held and ultimately after a series of litigations the impugned orders were passed by the competent Courts. Pursuant to which the present Writ Appeals are filed. 4. With the consent of both the learned counsel, W.A.No.971 of 2022, arising out of the W.P.No.41411 of 2017 is taken up for hearing. 5. The writ petitioner sought a mandamus questioning the action of the respondents in rejecting his request for conversion as Development Officer (Administration) and also to declare the proceedings, dated 12.04.2017 and 05.10.2017 as arbitrary. Learned senior counsel submits that there is no serious dispute about the facts in this case. The Petitioner, who was appointed as Development Officer of the respondent company was charge sheeted for claiming certain benefits as a member of the SC Caste. An enquiry was conducted and orders were passed on 12.07.2002 imposing the penalty of removal from service. Writ Petitioner filed an appeal which was also rejected on 25.04.2004. Questioning the same he filed W.P.No.2643 of 2004, which was allowed by the High Court setting aside the order of the dismissal and directing the authority to look into the issue afresh. 6. The present writ appellants filed W.A.No.218 of 2014 against the orders of the learned single Judge, which passed orders on 10.07.2014. These orders were later modified on 20.08.2014 holding that the dismissal order is set aside and directing the writ petitioner to be taken into service with continuity of service, but without back wages. An SLP No.34744 of 2014 was preferred by the present writ appellants before the Hon’ble Supreme Court of India, which was dismissed on 23.08.2016. Thus, the orders of the Division Bench became final and the writ petitioner was reinstated into service on 20.09.2016. 7. An SLP No.34744 of 2014 was preferred by the present writ appellants before the Hon’ble Supreme Court of India, which was dismissed on 23.08.2016. Thus, the orders of the Division Bench became final and the writ petitioner was reinstated into service on 20.09.2016. 7. Thereafter, the petitioner made an application seeking he should be entitled to all the benefits arising out of his reinstatement, including his request for conversion into a Development Officer (Administration). The rejection of this request led to the present writ petition. Learned senior counsel for the appellants points out that the order of the Division Bench in W.A.No.218 of 2014 is very clear. It is directed that the order of dismissal dated 12.07.2002, passed against the writ petitioner be set aside and the respondent shall be reinstated into continuity of service but without backwages. It was also held that the disciplinary proceedings with regard to 2nd charge should continue. This order was an amendment order passed pursuant to the application made in W.A.M.P.No.2492 of 2014. Therefore, learned senior counsel submits that the writ petitioner (present respondent) is only entitled to continuity of service and no other benefits. Alternatively, he also submits that the scheme for conversion into a Development Officer (Administration) is there only in 2003 and therefore the petitioner cannot seek the applicability of said scheme by making a representation in December, 2016 after his reinstatement. It is also submitted that in the alternative that even after the scheme is applicable the petitioner does not meet the conditions of eligibility. Therefore, it is submitted that the order of the learned single Judge is grossly erroneous and should be set aside. 8. In reply to this learned counsel for the respondent argues the matter and submits that the order impugned is a reasoned order. It is pointed out that after a long legal battle the petitioner has succeeded and reinstatement in service is directed to be given. Once the reinstatement is given it is argued that the petitioner is entitled to all the benefits including the scheme of conversion. It is also pointed out that the SLP filed by the present appellants was dismissed and the order of the Division Bench, therefore, holds good. 9. Since the facts are not in dispute, this Court is not proposing to examine them in detail. It is also pointed out that the SLP filed by the present appellants was dismissed and the order of the Division Bench, therefore, holds good. 9. Since the facts are not in dispute, this Court is not proposing to examine them in detail. The order of the Division Bench on which the writ petitioner (present respondent) relies upon partly allowed the writ appeal holding that the order of the dismissal, dated 12.07.2002, against the writ petitioner should be set aside. The Division Bench initially directed that the respondent should be reinstated into service without backwages or continuity of service. 10. This sentence was modified and substituted with the words “with continuity of service but without backwages” pursuant to the orders, dated 20.08.2014, in W.A.M.P.No.2494 of 2014. Therefore, it is clear from a reading of this order itself that the Division Bench did not consider that the petitioner was entitled to all the benefits that were arise naturally from the order of reinstatement of service. It is also clear from the said order of the Division Bench that the enquiry into the 2nd charge should continue. In these circumstances, this Court has to agree with the submission of the learned senior counsel that the order of the Division Bench, which directed only continuity of service cannot be interpreted to state that the petitioner is entitled to all the benefits that were arise out of the reinstatement. The continuity of service that is given to the present respondent would only enure to his benefit for the purpose of his pension and for such other benefits only. 11. The submission made by the learned senior counsel with regard to the scheme introduced in February, 2003 is also appealing to this Court. The fact remains that on 12.07.2002 the writ petitioner-present respondent was dismissed from service (thereafter writ petition was filed) and the scheme was introduced in February, 2003. The eligibility criteria which is described in Clause 1 of the scheme clearly states as follows: (a) Those Development Officers, who opted for Special Voluntary Retirement Package (SVRP) will not be eligible if they are under suspension and if disciplinary proceedings is/are proceedings are pending or contemplated. (b) For the Development Officers, who want to opt for Development Officer (Administration) like the writ petitioner, the scheme will not be applicable to those who are under suspension. (b) For the Development Officers, who want to opt for Development Officer (Administration) like the writ petitioner, the scheme will not be applicable to those who are under suspension. (c) In addition, time schedule was also fixed within which the scheme was to be implemented. 12. A reading of these eligible clauses makes it very clear that if a person is under suspension on the date of scheme he is not entitled to exercise option or seek the benefit. In the case on hand, the writ petitioner was removed from service in July, 2002 and he was only reinstated in 2016. If an officer under suspension is ineligible, in the opinion of this Court an Officer, who is removed from service is definitely not eligible for the option. A suspension can also be revoked or set aside like a final punishment, but in the nature of things the scheme provided that a person under suspension is also not eligible. The scheme also was applicable in 2003 and for a limited period. Therefore, even if the issue is examined form this angle, this Court is of the opinion that the petitioner is not entitled to the relief that he is claiming, as the time fixed for the scheme is expired long ago and eligibility criteria are also not met. 13. Therefore, both on fact and law, this Court has to hold that the petitioner is not entitled to the relief and the learned single Judge’s order is contrary to law that is granted. Accordingly, the same is set aside and the Writ Appeal No.971 of 2022 is allowed. 14. W.A.No.846 of 2022 is filed against the orders in W.P.No.17630 of 2020. The facts in this case are the same as in W.P.No.41411 of 2017. Pursuant to his reinstatement the writ petitioner is claiming the following prayers at page 26 para-7. 7. Accordingly, the same is set aside and the Writ Appeal No.971 of 2022 is allowed. 14. W.A.No.846 of 2022 is filed against the orders in W.P.No.17630 of 2020. The facts in this case are the same as in W.P.No.41411 of 2017. Pursuant to his reinstatement the writ petitioner is claiming the following prayers at page 26 para-7. 7. In the aforesaid facts and circumstances, it is prayed that this Hon'ble High Court be pleased to issue a Writ, order or direction more in the nature of Writ of Mandamus declaring the action of the respondent in not granting the notional increments from 3.7.2002 to 20.9.2016, and paying backwage arrears from 20.11.2013 to 20.9.2016 with interest @ 14% per annum and not granting notional promotion on par with the petitioner's batch mates one Mr.Nagul Meer and junior Isreal as Administrative Officer, Assistant Manager, Deputy Manager and Manager inspite of setting aside the removal orders dt.3.7.2002 by the Learned Single Judge of the High Court in W.P.No.2653/2004 dt.19.11.2013 merged in the orders of High Court in Writ Appeal No.218/2014 dt.10.7.2014 with reinstatement with continuity of service confirmed by the Supreme Court of India in SLP (e) 34744/2014 dt 23.8.2016 as illegal, arbitrary and violation of Articles 14,16 and 21 of Constitution of India and consequently declare that the petitioner is entitled for the above benefits with interest @ 14% on arrears and to pass such other order or orders as this Hon'ble High Court may deem fit and proper in the circumstances of the case.” 15. In the counter affidavit filed by relying on the order of the Division Bench in W.A.No.218 of 2014 learned senior counsel argues that the petitioner is only entitled to continuity of service, but without backwages. Therefore, it is submitted that none of the prayers that are raised in this writ petition can be ordered. The decision in the case of Hon’ble Supreme Court of India in A.P.S.R.T.C. and Another v S. Narsagoud, Appeal (Civil) No.6362 of 2000 (Dt.15.01.2003) is relied. Learned counsel for the respondent also argues on the similar lines. 16. As noticed earlier the Division Bench by its order in W.A.No.218 of 2014 set aside the order of the dismissal and directed the reinstatement of the writ petitioner-respondent into the service with continuity if service but without backwages. Learned counsel for the respondent also argues on the similar lines. 16. As noticed earlier the Division Bench by its order in W.A.No.218 of 2014 set aside the order of the dismissal and directed the reinstatement of the writ petitioner-respondent into the service with continuity if service but without backwages. Therefore, it is clear that the Division Bench was of the clear opinion that the petitioner isnot entitled to each and every benefit that would arise out of the order of the reinstatement. The Division Bench consciously limited the entitlement to reinstatement only without backwages but with continuity. 17. The judgment relied upon by the learned senior counsel in APSRTC case (1 supra) also it is held as follows: “…The effect of the judgment of the learned single Judge, upheld by the Division Bench and the Circular issued consequent upon the judgment of the High Court is that the employee being reinstated, inspite of having been held guilty of unauthorised absence from duty, continues to earn increments though there is no payment of wages for the period of absence. This results into an incongruous situation, submitted the learned counsel for the appellant. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service.” 18. Prayer 1 to grant notional increments is clearly answered by this judgment. In addition, prayer 2 granted by the learned single Judge is for payment of backwages from 20.11.2013 to 20.09.2016 along with interest. The petitioner was reinstated into service on 20.09.2016 only. Therefore, in the opinion of this Court he is not entitled to any backwages till date of his reinstatement. In addition, prayer 2 granted by the learned single Judge is for payment of backwages from 20.11.2013 to 20.09.2016 along with interest. The petitioner was reinstated into service on 20.09.2016 only. Therefore, in the opinion of this Court he is not entitled to any backwages till date of his reinstatement. As far as notional promotion is concerned, it is noted that in the counter affidavit filed it is clearly mentioned that a major penalty has been imposed on the writ petitioner-present respondent. The order of the Division Bench referred to earlier directed the appellants to continue the enquiry into one charge that resulted in punishment, and it is mentioned in paragraph 7 of the counter affidavit filed. This aspect was not considered by the learned single judge. Ultimately, the petitioner’s appeal against the punishment was allowed partially by the appellate authority and a punishment of reduction of basic pay by 5 increments was passed. This is a major penalty. Once the petitioner is subjected to a major penalty and a punishment has been imposed; he cannot, as a matter of right, demand promotions. It is also clear that promotion is given on the basis of the performance. The respondents have clearly stated that the promotions are not automatic. 19. The Division Bench’s order is very clear and categorical. It limited the relief to continuity of service only along with reinstatement. The Division Bench categorically did not state that the petitioner would be entitled to all consequential benefits that would arise because of the reinstatement. At that stage, the Division Bench is also conscious of the fact that one more charge was to be enquired into and directed the appellants to enquire into the charge. Ultimately, on this charge also the punishment was imposed, which is a major penalty. This aspect should also have been kept in mind before the impugned order is passed. It is thus clear that when a person has a right and the right is infringed, a mandamus can be issued. In the case on hand, this Court holds that the petitioner-respondent does not have a right to claim these reliefs and the learned single Judge, in the opinion of this Court, committed an error in allowing the writ petition. It is thus clear that when a person has a right and the right is infringed, a mandamus can be issued. In the case on hand, this Court holds that the petitioner-respondent does not have a right to claim these reliefs and the learned single Judge, in the opinion of this Court, committed an error in allowing the writ petition. Both in view of the earlier judgments passed on fact and in law and for the reasons mentioned above, the Writ Appeal No.846 of 2022 is allowed setting aside the impugned order. 20. Accordingly, both the Writ Appeal Nos.846 and 971 of 2022 are allowed. No order as to costs. 21. Consequently, miscellaneous applications pending in these Writ Appeals, if any, shall stand closed.