Veena Singh vs Labour Department

S.C. Sharma, J. - The petitioner before this Court who is a retired Government Servant, has filed this present writ petition being aggrieved by the order dated 16/9/2004 by which benefit of kramonnati granted to him on 15/7/2003 has been withdrawn.

The petitioner has attained the age if superannuation. While he was in service, he was conferred with the benefit of kramonnati by the respondents. The only reason assigned by the respondents in the return that they have withdrawn the benefit of kramonnati as the petitioner has not complied with the subsequent promotion order dated 15/7/2003. The petitioner was granted benefit of kramonnati in the pay scale of Rs.4500-7000 and he was promoted in the pay scale of Rs.4500-7000.

Learned counsel for the petitioner has drawn attention of this Court towards the order passed by this Court in the case of Lokendra Kumar Agrawal v. State of Madhya Pradesh and another reported in 2010 (2) MPHT 163.

The controversy involved in the present matter is covered by the Division Bench judgment of this Court in the matter of Lokendra Kumar Agrawal v. State of M.P. And another reported in 2010(2) MPHT 163, wherein the Division Bench has held that :-

"4. The respondent-State stated that the General Administration Department issued circulars dated 5th July, 2002 and 23.9.2002 clarifying the position of the employees who did not join in pursuance to the order of promotion on the promotional post. As per the aforesaid circular, if the employee refused to join on the promotional post and forgo the promotion then the benefit of Time Bound Promotion granted to such an employee would also be withdrawn. Consequently, the time bound promotion granted to the appellant has been withdrawn.

From the facts of the case, it is clear that the appellant was granted the benefit of time bound promotion pay scale i.e. pay scale of Rs.4500-7000, after considering the case by the duly constituted committee. He was granted the aforesaid pay scale w.e.f. 19th October, 2005. Thereafter, appellant was promoted on the post of Head Clerk and he had foregone the said promotion. Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn. However, the appellant was considered by a duly constituted committee for the purpose of grant of benefit of time bound promotion and thereafter the aforesaid benefit was extended to the appellant. In our opinion, subsequent withdrawal of benefit of time bound promotion of the appellant amounts to reduction in pay of the appellant and it could not be done without holding a proper enquiry because the reduction of pay amount to penalty. Appellant has not committed any misconduct. He has simply foregone his promotion. In such circumstances, the department can withdraw the benefit of promotional post from the appellant, however, the benefit of time bound promotion granted to the appellant earlier could not be withdrawn because time bound promotion was granted to the appellant as up-gradation of pay after completing certain period of service and withdrawal of the aforesaid benefit amounts to violation of Article 311(2) of the Constitution.

In our opinion, the learned Single Judge has committed an error by holding that the respondents can withdraw the benefit of time bound promotion because the appellant refused to join on the promotional post. On account of refusal to join on the promotional post the appellant has already been suffered by foregoing the benefit which could have been accrued to the appellant due to his promotion on the next higher post. However, under the Executive instructions issued by the Department the benefit of time bound promotion of the appellant could not be withdrawn because it would amount to reduction in pay and the aforesaid action is in violation of Article 311(2) of the Constitution because the reduction of pay could only be ordered as a consequence of penalty.

Consequently, the writ appeal filed by the appellant is hereby allowed. The impugned order passed by the learned Single Judge dated 14-9-2009 in Writ Petition No.774/2009(S) is hereby quashed and also the order dated 18th September, 2007 passed by the Joint Director is also quashed. It is held that the appellant would be entitled to the benefit of time bound promotion pay scale of Rs.4500-7000, which was granted to the appellant earlier. Looking to the facts of the case, there shall be no order as to costs."

The facts of the present matter are also identical. The benefit of the 2nd Kramonnati have been withdrawn without affording any opportunity of hearing to the petitioners and without conducting any enquiry and the said withdrawal has resulted into reduction in pay of the petitioners. Therefore, in view of the position settled by the Division Bench in the above judgment, the impugned action of the respondents can not be sustained and is hereby set aside. It is held that the petitioners would be entitled to benefit of the 2nd Kramonnati which were given to them earlier.

The impugned order dated 16/9/2004 withdrawing the benefit of kramonnati are hereby quashed. The petitioner shall be entitled for all benefits flowing out of order dated 6/12/2000, meaning thereby, the petitioner shall be entitled for the benefit of kramonnati from 19/4/1999. The respondents are directed to revise the pay fixation of the petitioner and to revise the salary and to pay arrears within a period of six months from the date of receipt of certified copy of this order.