Madras High Court Order - Notional Increment on retirement 30th June DoPT

Madras High Court Order - Notional Increment on retirement 30th June DoPT

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.28488 of 2013 M.P.No.1 of 2013 M. Murugan … Petitioner Vs. 1. The Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District. Court under Para 14 has explained rem & persona judgements

January 25, 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013
CORAM:

THE HONOURABLE MR.JUSTICE S.MANI KUMAR Writ Petition No. 28488 of 2013
M.P.No.1 of 2013 M.MuruganVs. The Co-operative Sub Registrar / Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District.

In the present writ petition, it is the case of the petitioner that as he had not opposed or challenged the surcharge proceedings initiated by the then Co-operative Sub Registrar / Field Officer, Jolarpet, Mr.M.M.Subramanian, the judgment rendered in W.P.No.15758 of 2006, dated 22.06.2012, can be treated only as a “judgment in personam” and not as “judgment in rem”. In C.L. Pasupathy v. Engineer in Chief (WRO) reported in 2009 (2) MLJ 491, this Court has considered the expressions, “judgment in ‘in rem’ or a judgment ‘in personam'”, as follows: Read further under Para 14 in main judgement to understand Judgement in rem & Judgement in Persona .

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013

CORAM

THE HONOURABLE MR.JUSTICE S.MANIKUMAR
Writ Petition No.28488 of 2013 M.P.No.1 of 2013
M.Murugan … …………………………..Petitioner
Vs.

1. The Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District.
2. The President, Chinnakallupalli Primary Agricultural Co-operative Bank,
   Chinnakallupalli Village, Vaniyambadi Taluk, Vellore District.
3. The Deputy Registrar of Co-operative Societies,
   Tirupattur Circle, Tirupattur, Vellore District. ……… Respondents

Writ Petition filed under Article 226 of Constitution of India, praying for a Writ of Certiorari, to call for the records, relating to the surcharge show cause notice, Tha Thi 2/2013-14 Sa.Pa. dated 25.09.2013 of the 1st respondent, issued under Section 87 of the Tamil Nadu Co- operative Societies Act, 1983.

For Petitioner : Mr.S.Venkataraman
For Respondents : Mr.L.P.Shanmughasundaram,
Spl. Govt. Pleader (Co-op.)

ORDER

Being aggrieved by the notice in the surcharge proceedings, made in Tha Thi 2/2013-14 Sa.Pa. Dated 25.09.2013, of the Co-operative Sub Registrar / Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District, 1st respondent herein, has issued under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as “the Act”), calling upon the petitioner, the erstwhile Sub-Registrar, Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore, to submit his explanation within 15 days from the date of notice, the present writ petition has been filed.

2. According to the petitioner, he had worked as Sub-Registrar in the above said Bank, for the period between 26.07.2001 and 01.07.2003 and thereafter, between 25.11.2003 and 13.04.2004. An enquiry under Section 81 of the Act came to be ordered by the Deputy Registrar, Tirupattur Circle, on 25.01.2005 and pursuant to the report, dated 03.08.2005, a show cause notice, dated 18.04.2006, has been issued in the Surcharge Proceedings, by one Mr.M.M.Subramanian, the then Co-operative Sub Registrar / Field Officer, Jolarpet. The petitioners and others were alleged to have failed to carry out proper supervision, which enabled the Secretary of the Society to misappropriate Rs.1,02,980/-.

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3. The petitioner has further submitted that he was summoned to appear for an enquiry on 25.05.2006, by a memo, dated 18.05.2006, by the Enquiry Officer. On receipt of the same, the petitioner has sent a representation, seeking production of the supporting materials, to enable him to submit his explanation. He has appeared in the enquiry on 25.05.2006 and submitted a detailed representation, demanding documents.

4. Thereafter, the Enquiry Officer has issued a fresh summons, posting the enquiry on 31.01.2006. According to the petitioner, notice of enquiry was received by the petitioner on 31.05.2006 and hence, he could not attend the enquiry, on the fixed date. Therefore, he sent a representation on 01.06.2006 and sought for an alternative date of enquiry. Now, after nearly seven years, a fresh show cause notice, dated 25.09.2013, has been issued by the 1st respondent.

5. Assailing the correctness of the impugned notice, Mr.S.Venkataraman, learned counsel for the petitioner submitted that the alleged occurrence was between the period 2001 and 2004, when the petitioner was deputed to work as the Special Officer. According to him, a fresh surcharge proceedings has been initiated only on 25.09.2013, after a lapse of seven years and therefore, no action can be taken, as per the 1st proviso to Section 87 of the Act.

6. Learned counsel for the petitioner further submitted that citing the order of this Court made in W.P.No.15758 of 2006, dated 22.06.2012, surcharge proceedings are now reviewed. The above said writ petition, came to be allowed, setting aside the surcharge proceedings with liberty to hold a fresh enquiry, with a further condition that the petitioner therein, should not raise the plea of limitation.
According to him, the order made in the above writ petition, is not a “judgment in rem” and it should be read as “judgment in personam” and therefore, it can be applied only to the petitioner therein, and should not have been extended to the other delinquents.

7. It is the contention of the learned counsel for the petitioner that the petitioner has not challenged the earlier proceedings, on the grounds, including bias or mala fide, raised by the writ petitioner in W.P.No.15758 of 2006 and that there was no order, preventing the enquiry officer to proceed against the petitioner and other delinquents. In the above said circumstances, 1st proviso to Section 87, is attracted and therefore, the present impugned proceedings have to be set aside. Excepting the above, no other points are urged by the learned counsel for the petitioner.

Heard the learned counsel for the petitioner as well as Mr.L.P.Shanmugasundaram, learned Special Government Pleader (Co- operatives) and perused the materials available on record.
8. Before adverting the facts of the case, Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, is extracted:

“87. Surcharge- (1) Where in the course of an audit under section 80 or an inquiry under section 81 or an inspection or investigation under section 82 or inspection of books under section 83 or the winding-up of a society, it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has made any payment which is not in accordance with this Act, the rules or the by-laws the Registrar himself or any person specially authorised by him in this behalf, of his own motion or on the application of the board, liquidator or any creditor or contributory may frame charges against such person or officer or servant and after giving a reasonable opportunity to the person concerned and in the case of a deceased person, to his representative who inherits his estate, to answer the charges, make an order requiring him to repay or restore the money or property or any part thereof with interest at any such rate as the Registrar or the person authorised as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, misapplication of funds, fraudulent retainer, breach of trust or wilful negligence or payments which are not in accordance with this Act, the rules or the by-laws as the Registrar or the person authorised as aforesaid thinks just:
Provided that no action shall be commenced under this sub-section after the expiry of seven years from the date of any act or omission referred to in this sub-section.
Provided further that the action commenced under this sub-section shall be completed within a period of six months from the date of such commencement or such further period or periods as the next higher authority may permit but such extended period or periods shall not exceed six months in the aggregate.”

9. Materials on record shows that Mr.M.M. Subramanian, the then Co-operative Sub Registrar / Field Officer, Jolarpet, has issued show cause notices, in Surcharge 12/2005-06 Sa.Pa., dated 18.04.2006, under Section 87 of the Act, to seven persons, including the petitioner, who was the then Sub-Registrar, Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore.

Also check: MACP FOR THE CENTRAL GOVERNMENT CIVILIAN EMPLOYEES

10. Materials on record further discloses that after the receipt of notice, the petitioner seemed to have made representations, dated 20.05.2006 and 25.05.2006 respectively, seeking certain documents. In the said representations, he has also sought for copies of the enquiry report, under Section 81 of the Act and the other documents.

11. Perusal of the order made in W.P.No.15758 of 2006, dated 22.06.2012, shows that one of the co-delinquents, Mr.G.Srinivasan, a former Secretary of the Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore, had challenged the above show cause notice, issued in Surcharge 12/2005-06 Sa.Pa., dated 18.04.2006, under Section 87 of the Act, on the grounds, inter alia, that surcharge proceedings have been entrusted to a person, who had earlier functioned as a Special Officer of Chinnakallupalli Primary Agricultural Co-operative Bank and requirements of fairness and justice, demand that the surcharge proceedings be conducted by a person, other than the said officer. Bias has been alleged on the then Enquiry Officer, under Section 87 of the Act. Considering the rival submissions, this Court, at Paragraphs 5 to 8, has passed the following orders,

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“5. Considering the rival submissions, this Court is of the view that though it cannot be stated as a general rule that the officer placed in-charge of the surcharge proceedings necessarily would be prejudiced against the petitioner because he happened to be the special officer during the alleged wrong doing of the petitioner, following the principle that justice should not only be done, but also should be seen to be done, this Court would allow this petition.
6. Accordingly, the writ petition stands allowed and the proceedings 12/2005-06 Sa.Pa., dated 18.04.2006 stand quashed. No costs.
7. It is now open to the second respondent to appoint a fresh officer for the purpose of conducting surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983. This Court clarifies that since the proceedings stand delayed owing to the interim order passed by this Court in W.P.No.15758 of 2006, the petitioner now cannot raise any plea under first proviso to Section 87 of the Tamil Nadu Co-operative Societies Act, 1983.
8. This Court directs the respondents to initiate surcharge proceedings afresh in keeping with this order and to complete the same as expeditiously as possible.”

12. It is the further contention of the learned counsel for the petitioner that even assuming that action has been taken well within the period of limitation, continuation of the said action, so taken, can be only with the permission of the higher authorities and in such circumstances, the extended period or periods shall not exceed six months in the aggregate. According to him, initially, action has been taken in the year 2006 by issuance of a surcharge notice and thereafter,there was no progress. As the order made in W.P.No.15758 of 2006,dated 22.06.2012, filed by Mr.G. Srinivasan, is not applicable to the writ petitioner and in the absence of any permission from the higher authorities to continue with the surcharge proceedings, after six months,from the date of commencement, the impugned show cause, has to beset aside ….

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25. In the result, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.

Grant of Notional Increment on completion of 12 Months of Service on of July of a Calendar Year (After Retirement) for the purpose of Pension to Govt. employees

Grant of Notional Increment on completion of 12 Months of Service on of July of a Calendar Year (After Retirement) for the purpose of Pension to Govt. employees. Dealing with the Pending/ Under Consideration Cases.

Government of Haryana
Finance Department

No.6/ 183/2018-4PR (FD),
From
The Additional Chief Secretary to Government Haryana Finance Department.
To

1. All of the Administrative Secretaries in Haryana Stale.
2. All of the Heads or Departments in Haryana State.
3. All or the Divisional Commissioners in Haryana State.
4. All of the Deputy Commissioners in Haryana State
5. All of the SDOs (Civil) in Haryana State.

Date Chandigarh the, 03.04.2019

Subject: Grant of Notional Increment on completion of 12 Months of Service on of July of a Calendar Year (After Retirement) for the purpose of Pension to Govt. employees. Dealing with the Pending/ Under Consideration Cases.

Sir,
have been directed to refer to the subject cited above and to state that the Hon’bIe Madras High Court vide its judgment dated 15.9.2017 in CWP No. 15732 of 2017-P. Ayyamperumal Vs. Union of India had allowed an Annual Increment on notional basis for the purpose Of pensionary benefits to the petitioner on I .7.2013 who had otherwise retired on 30.52013. The rationale of the judgment was that the Increment has to be granted On completion On full year or service and s:nce the employee concerned had retired on 30.69013 after the fun length of service of one year from 1 .7.2012 to 30.6.2013 he was allowed the Annual Increment as on 1.7.2013 on notional basis for the oi pensionary benefit*. This judgment was later on upheld in the Hon’ble Supreme Court in SLP No. 22283 of 2018- Union of India Vs. p. Ayyamperumal, decided on 23.7.2018.

A number of cases on the same lines are being received comprising administrative proposals, judgments from the Hon’ble Punjab & Haryana High Court delivered in terms of judgment of Hon’ble Supreme Court ibid. Further, a number of CWPs, Representations from retired Employees and certain Legal Notices have also been received and have pouring in regularly relying upon the judgment Of Hon’ble Supreme Court ibid.

In view Of the above the matter was considered meticulously weighing all possible pros and cones and since the judgment or Hon’ble Supreme Court ibid has been delivered a case where Central Govt was party, the Central Govt. has, therefore, been requested vide this Department Ietter dated 28.3.9019 to apprise or the latest position in this respect to the Haryana Govt. so that appropriate policy decision may be taken accordingly. This request has been sent to Central Govt. since the remedy Of Review

Application and Curative Petition still subsists with it end it would be in the fitness of things that a decision by the Haryana Govt. may be taken Only after ascertainment of final decision from the Govt. of india. A copy of request dated 28.3.201' sent to Central Govt. is attached herein.
In view of the above it is requested that all of the pending cases i.e. CWPs/Court Cases, Representations, Legal Notices on the instant subject may be dealt with/disposed of accordingly. In the decided cases where in a direction has been issued by the Hon’ble High Court/ I-d. Courts to decide the Representations/ Legal Notices of the petitioners LEC Petitioners/ Counsel of Petitioners may be informed accordingly. Likewise, adjournment may he requested in the cases Where Reply is to be fled. ‘The under consideration Representations/ Legal Notices may also be disposed Of in the same terms informing the factual position to the Employees (Counsels concerned. The next line of action be informed in due course.

sd/-
Chief Accounts Officer (PR)
for Additional Chief Secretary to Government Haryana
Finance Department

Endst . No. 6/ 183/2018-4PR(FD)

A copy is forwarded to the Accountant General Haryana, (A&E) and (Audit), Chandigarh for information.

Chief Accounts Officer (PR)
for Additional Chief Secretary to Government Haryana,
Finance Department
“CONSERVE WATER – SAVE LIFE”

Government of Haryana
Finance Department

No. 6/ 183/2018-4PR (FD)
To
The Secretary to the Govt. of India
Ministry of personnel, Public Grievance and Pensions
Department of Pension
New Delhi

Date 28th March, 2018

Subject:- Grant of Notional Increment on completion of 12 Months of Service on July of Calendar year (After Retirement) for the purpose of pension to Govt. employees.

Respected Sir,
I am directed to refer to the subject cited above and to state that The Haryana Govt. has broadly followed the pattern Oi Central Govt. in Pay and Pension Structure while its Pay pension Rules pursuant. To recommendations of Central Pay Commissions. the Pay Rule of 2006 there was a uniform date or grant or Annual Increment being of July of eve-or calendar month Whereas in the 2015 Rules there are two dazes being Of January and of July depending upon the circumstances. The minimum length of service Lo earn the Annual Increment is uniform In of the Rules i.e. six months of qualifying service.

Some of the retired Officers/ Employees brought to the notice of this Department a judgment dated 25-9.2017 (Copy Attached) of DB Of Hon’ble Madras High Court delivered in CWP No. 15732 of 2017- P. Ayyamperumal Vs. Union India wherein the Hon tile Madras High Court has allowed the benefit of Annual increment, on notional basis to the petitioner who retired on 30.6.2013 for Pensionary benefits only for the period of I. 7.2012 to 30-62013 though the Increment [ell due on The Operative part of the judgment ibid is reproduced herein below for your ready reference;-

The petitioner herein had completed one full year service as on 30.6.2013, but the increment feu due on 1.7.2013, on which date he was not in service. In view of the above judgment of this Court, naturally he has to be treated as having completed one year of service though the date of increment fans on the next day of his Applying the said judgment to the present case, the writ petition Es allowed and the impugned order passed by the first respondent-Tribunal dated 21.3.2017 is quashed. The petitioner shall be given one notional increment for the period from 7.7.2012to 30.6.2013, as he has completed one fun year of service, though his increment fell on 01.07.2013, for the purpose of pensionary benefits and not for any other purpose. No Costs.

This judgment was later on upheld by the Hon’ble Supreme Court Of India vide its judgment dated 23.7.2018 (Copy Attached) in SLP NO. 22283 Of 2018 and the inference comes out is that this issue has attained finality until and unless it has been challenged further by the Govt. of India by means Review Application/ Curative Petition, if any.

In view of the legal position as above, the Hon’ble Punjab & Haryana High Court has disposed of number of cases is The same terms against the State of Haryana wherein the retired employees of the Haryana Govt. had demanded similar benefit being affinity Of Rules. Besides, a. number of CWPs/Court Cases are also sub judice in the Hon’ble High Court and the Haryana Govt is not able to file proper reply therein in view of the judgment Of Hon’ble Supreme Court ibid. Further, number Of Legal Notices arc also pending and lot more arc also In on regular intervals from the relired employees demanding same benefits and a warning of filing of Court Case in the cage Of denial thereof is also being conveyed

As such: it is kindly requested that the factual position may Se clarified conspicuously as per points mentioned below;

1.As to whether the Govt. of India has further challenged the Aforesaid judgment in SLP by way of RA/Curative Petition and if yes the detail thereof may please be conveyed.
2.If the action to challenge has not been materialized then as to whether it is under consideration.
3.As to whether the same has been implemented and if yes, the copy of relevant Rule/ Instruction/ Order may please be provided
4.It may please be clarified, in case this judgment has been implemented as to whether the Increment is countable for Pension purpose exclusively or for other retiral benefit i.e. Communication of Pension, DQÜ and Leave Encashment etc.
5.Though the judgment ibid has been delivered keeping in view the Pay Rules 2006 wherein only single date of Annual Increment i.e. 1st July of every calendar year was provided whereas With the commencement or 2016 Rules [here have been provided two dates of Increments i.e. 1st of January and 1st July. It may, therefore, please he clarified RS to whether it would also apply to Govt. employees retiring after 01.01-2016.
6.As to whether the Govt- of India has accordingly amended or contemplating to amend its Pay and Pension Rules (please clarify conspicuously) to make them compatibIe in view of the factual position as such.

The aforesaid information/ documents may please be provided at the earliest so that the Haryana Govt. may take appropriate decision in all the pending cases accordingly and no awkward position is faced in the Hon’ble High Court/other Ld. Courts.

If this issue does not relate to this Department/ Division then this communication may please refereed transferred to the Department/ Division concerned under intimation to this Department so as to enable it to follow-up the same accordingly With the authority concerned.

Thanking You
DA/ As above

Yours Faithfully,
Chief Accounts Officer
for Additional Chief Secretary to Govt_ Haryana
Finance Department
(Haryana Civil Secretariat, Chandigarh)

Notional fixation of pay to officers included in USSL 2009 and 2010 reg.

Notional fixation of pay to officers included in USSL 2009 and 2010 reg.

 

No.5/11/2011-CS-I (U)
Government of India
Ministry of Personnel, Public Grievances & Pension
Department of Personnel & Training

2nd Floor, Lok Nayak Bhawan,
Khan Market, New Delhi
Dated the 27th February 2013

OFFICE MEMORANDUM

Subject : Notional fixation of pay to officers included in USSL 2009 and 2010 reg.

The undersigned is directed to refer to references received from Ministries/ Departments forwarding therewith requests of officers included in USSLs 2009 & 2010 for notional fixation of pay in the grade of Under Secretary from 1 July of the Select List year. The issue has been examined in this Department.

2. It is informed that as per DPC guidelines promotions are effective from a prospective date. Grant of notional fixation of pay from a date prior to the date of actual promotion is not as per the general instructions on promotion. The pay and allowances attached to a post is admissible only w.e.f. the date of appointment to the post and for actual pay benefit, assumption of charge of the promotional post is the criterion.

3. It was decided by this Department that notional fixation of pay would not be allowed to any grade/ service on the ground of delayed holding of DPC. Accordingly, in the Office Memorandum of even number dated 26.11.2012 issued by this Department for inclusion of officers in USSL-2009 & 2010 no instructions were issued for notional fixation of pay.

4. Accordingly, notional fixation of pay in respect of officers included in USSL-2009 and 2010, w.e.f. 1 July of the Select List year is not consistent with extant rules/instructions on the subject and is not, therefore, allowed. All the Ministries/Departments are, therefore, requested to review the cases of fixation of pay of officers included in USSLs 2009 & 2010 and take steps to rectify the pay fixation in all those cases where the benefit of notional fixation of pay has incorrectly extended.

sd/-
(Utkarsh R Tiwaari)
Director

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02csd/NotionalPay_Fixation_US200910.pdf]

Issue of consideration of Stagnation Increment for the purpose of notional increment at the time of promotion

No.F.2(36)/2012/DPE/(WC)
Government of India
Ministry of Heavy Industries & Public Enterprises
Department of Public Enterprises

Public Enterprises Bhawan,
Block No. 14, CGO Complex,
Lodhi Road. New Delhi-110 003
Dated : 26, December, 2012

OFFICE MEMORANDUM

Subject: - Issue of consideration of Stagnation Increment for the purpose of notional increment at the time of promotion.

The undersigned is directed to enclose BHEL. letter No. AA/HR/IR/520 dated 14.6.2012 on the subject mentioned above.

2. On promotion, the executive would be entitled to the benefit of one notional increment (3%) on his Basic Pay + Stagnation Increment, if any, and the pay would be fixed (rounded off to the next Rs.10), in the promoted scale. However, on promotion the pay so fixed should not exceed the maximum of the scale to which the executive  is promoted. In case his pay so arrived at is less than the minimum of the promoted
scale, he/she would be entitled to get the minimum of the scale. Further, DPE has recently issued detailed O.M. dated 14.12.2012 on various pay related issues of executives of CPSEs. A copy of O.M. dated 14.12.2012 is available on DPE website www.dep.nic.in

3. DHI being the administrative Ministry in respect of BHEL may suitably clarify to BHEL.

End. As above

sd/-
(P.J.Michael)
Under Secretary

DHI
(Shri S.K.Mishra, Under Secretary)
Udyog Bhawan,
New Delhi

Source : www.dpe.nic.in
[http://dpe.nic.in/sites/upload_files/dpe/files/glch04d24_08012013.pdf]