Judgment:
ORDER
1. The writ petition is filed by one Y. Venkata Sastry (hereafter referred to as the first petitioner). He prayed for a writ of mandamus directing the respondents namely, the State Bank of India (SBI) and its officials to promote him to Middle Management Grade-II (MM Gr.II) with effect from 1-8-1983 by fixing his pay at Rs.2,825/- p.m. in the said grade after declaring the action of the respondents in fixing his basic pay at Rs.2,325/- as illegal and arbitrary. He also prayed for other consequential directions. During the pendency of the writ petition, the first petitioner died and by an order dated 29-7-1999, his wife and son are brought on record as legal representatives and they contested the case.
2. Briefly stated that admitted facts are as follows. In 1976, the first petitioner was placed under suspension on the allegation that he committed certain irregularities in issuing demand drafts. At that time he was working as officer in MM Gr.II. After conducting enquiry in accordance with SBI Disciplinary Regulations, by an order dated 16-1-1985, he was removed from service. At that time he was drawing pay of Rs.1,925/-.
3. Feeling aggrieved by the removal order, the first petitioner filed a writ petition under Article 226 of the Constitution being WP No.1780 of 1985. The writ petition was allowed and by an order dated 14-9-1987 this Court ordered reinstatement without back wages. The respondents carried the matter under Letters Patent the writ appeal being WA No.557 of 1987 was disposed of by judgment dated 1-3-1988 modifying the order of the learned single Judge to the effect that the first petitioner shall be reinstated without back wages but punishment of withholding five increments was imposed. In obedience to the mandamus issued by the Division Bench, the SBI reinstated the first petitioner with effectfrom 7-4-1988. On reinstatement giving effect to the punishment of withholding of five increments, the SBI issued proceedings fixing the pay of the first petitioner in JM Gr.I scale at Rs.2,325/-.
4. On verification, the first petitioner found that he is entitled for fixing of pay at Rs.2825/- and, therefore, he made number of representations to the third respondents to recify the mistake. By a letter dated 6-1-1990, the third respondent communicated the decision that fixing of pay at Rs.2,325/- was in order. Hence, the first petitioner filed the present writ petition.
5. The respondents filed a counter-affidavit justifying the fixation of pay of the first petitioner at Rs.2,325/-. The justification as projected in the counter is as follows :
'.............................petitioner was working as officer in Middle Management Grade Scale II and that his basic pay was Rs.1,925/- at the time of his removal from service, which was subsequently revised to Rs.2,825/- in the pay scale of Rs.1825-100-2925. It is not correct to state that on his reinstatement pursuant to the orders of this Hon'ble Court, his basic pay ought to have been fixed at Rs.2,825/-. It is relevant to submit that at that time the petitioner was to draw only one increment in his scale of pay and his basic pay was only one stage below the maximum in the pay scale applicable to that grade. This Hon'ble Court in WA No.557 of 1987 dated 1-3-1988 ordered that the petitioner shall not be entitled to five increments. As such penalty of 'Reduction in Time Scale by five Stages' was imposed on the petitioner and his basic pay was reduced from Rs.2,825/- to 2,325/-.'
6. A reading of the counter-affidavit makes it clear that the respondents while giving effect to the orders of the DivisionBench fixed the basic pay of the first petitioner at Rs.2825/- and then reduced the same by Rs.500/- being the cumulative sum of five annual increments at the rate of Rs.100/- per year.
7. Therefore, the question that arises for consideration in this writ petition is whether the employer is justified in deducting a cumulative sum from the fixed basic pay while giving effect to the punishment of stoppage of increments?
8. Sri Balagopal, learned Counsel representing Sri K.G. Kannabiran, learned Counsel for the petitioner submits that the first petitioner was removed from service with effect from 16-1-1985 and he was reinstated with effect from 7-4-1988 by virtue of the judgment of the Division Bench of this Court. During the period from 16-1-1985 to 7-4-1988, the first petitioner was out of employment and, therefore, there is no question of deduction of increments either annually or by reducing a cumulative sum. When the first petitioner was reinstated on 7-4-1988, his pay was notionally fixed at Rs. 2825/- in the pay scale of Rs.1825-100-2925/- (Revised pay scale). Therefore, the reasonable and fair manner of giving effect to stoppage of increment could be when the increment annually falls due. When the first petitioner was given pay scale on 7-4-1988, the stoppage of five increments which did not fall due as on that date would amount to unreasonableness. The learned Counsel submits that there cannot be any stoppage of increments which did not accrue to the first petitioner.
9. Learned Counsel for the respondent-Bank, Sri S.R. James has taken me through the counter-affidavit and submits that as this Court has not mentioned in its order whether the increments are to be stopped with cumulative effect or without cumulative effect, the first respondent isjustified in fixing the first petitioner's pay notionally at Rs.2825/- and reducing the same by a cumulative sum equivalent to five annual increments at Rs.100/- per annum.
10. After careful consideration of the principles of law with regard to the imposition of punishment of stoppage of increments, I am of the considered opinion that there is force in the submission made by Sri Balagopal, learned Counsel for the petitioners. Further, I am also of the considered opinion that when either the disciplinary authority, appellate authority or a Court of judicial review imposed punishment of stoppage of increments without specifically indicating whether the increments are to be stopped with cumulative effect or without cumulative effect, the benefit of doubt, if any, should go to the employee. In such context, the order should be interpreted as having imposed the punishment of stoppage of increments without cumulative effect. The submission made by Sri S.R. James is answered accordingly.
11. I have already noticed that giving effect to the imposition of punishment of stoppage of increments without cumulative effect means - denying the increment to the delinquent employee when it actually accrues or falls due. The employer cannot assume any future circumstances and order stoppage of cumulative sum equivalent to future increments which have not yet accrued or fallen due to the employee. This view is supported by the judgment of a Division Bench of the Madras High Court relied on by the learned Counsel for the petitioners in SBI Sub-Staff Union v. Sec. and Trsr. of SBI and others, 1984 (II) LLJ 239.
12. In SBI case (supra), a departmental enquiry was conducted against a Head Clerk of the Bank inter alia for the charge that though he obtained a loan forpurchasing scooter he did not purchase the same as required in terms of the loan. After conducting enquiry, the Enquiry Officer found the delinquent guilty of the first charge and exonerated of the second charge. Based on the enquiry report, the management passed an order under para 521 (5)(d) of the Sastry Award stopping the increment of the employee due on 1-4-1970 for one year and he was informed that his next increment would fall due on 1-4-1971. After availing the departmental remedies in vain, the delinquent through his union raised an industrial dispute. The Industrial Tribunal allowed the reference holding that the management was not justified in withholding the increment to which the employee was entitled on 1-4-1970 by an order of punishment passed on 16-9-1970 with retrospective effect. Aggrieved by the same, the Bank filed a writ petition and a learned single Judge of the Madras High Court allowed the writ petition and quashed the award of the Tribunal. The matter was carried to the Division Bench by way of a writ appeal. The Division Bench referred to para 85 of Sastry Award and agreed with the award passed by the Industrial Tribunal holding that the increments cannot be stopped retrospectively.
13. The relevant passage from the judgment is as under :
'A reference to the above provision of the Sastry Award, it is manifest that an increment is earned as a matter of course. The increment due to the employee in the instant case on 1st April, 1970 was payable to him on that date, True it is, that a departmental proceeding was pending against him. But by a mere pendency of a departmental proceeding cannot be said that the employee was guilty of misconduct or gross inefficiency, much less proved misconduct, as required by the Sastry Award, for stoppage of increment. Therefore, the increment thatcould be stopped could be only and which would be falling due after the employee was found guilty in a proper departmental enquiry. There was no justification on the part of the Management in stopping the increment of the employee who was entitled to it on 1st April, 1970 in the hope that the employee would possibly be found guilty of misconduct in future. The Sastry Award does not clothe the Management with such a power. It does not give the management power to pass orders withholding the increment retrospectively by way of punishment. You can only stop something by way of punishment which is to come in future and not what has already accrued to the employee. The Sastry Award does not say that the mere pendency of a proceeding would entitle the Management to withhold payment of increment to an employee retrospectively, if found guilty.'
14. Applying the same principle, I must hold that when this Court modified the punishment to that of stoppage of five increments, the SBI has to allow the first petitioner to have his basic pay fixed at Rs.2,825/- as on 7-4-1988 and deny the increment only for that year on the date when the first petitioner is entitled to the increment and the same will be implemented year after year till five increments are denied.
15. It is submitted by the learned Counsel for the petitioners that due to unreasonable stoppage of five increments at a time and fixing the pay of the first petitioner at Rs.2,325/-, there is a cumulative loss of about Rs.18,000/-. As the first petitioner passed away during the pendency of the writ petition, the question of re-fixing his pay does not arise and it is only proper that the respondents pay an amount of about Rs.18,000/- to petitioners 2 and 3 or such other amount to which theyare legitimately entitled to and pay the same within a period of three months from today.
16. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs.