Allowed

Thomas George v. Secretary to Government

Kerala HC7 Jun 2013WP(C)/14373/2005

Case brief

AI extract

What is this about?

The petitioner, an attender in a cooperative bank, challenged orders revising his pay retrospectively to a lower scale due to alleged qualification irregularities. The court set aside the revision ordering notice for reconsideration and exempted refund of emoluments drawn up to the date of the impugned order.

What did the court decide?

Orders Ext.P1 and Ext.P2 set aside regarding retrospective revision; direction to re-fix salary with notice; no refund of amounts paid till 29/12/2003.

Thomas George Vs Secretary to Government — Service and Employment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 7TH DAY OF JUNE 2013/17TH JYAISHTA 1935

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WP(C).No. 14373 of 2005 (J)

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PETITIONER(S):

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THOMAS GEORGE, S/O. GEORGE, ASGED 46 YEARS, ATTENDER, THE MUTTOM SERVICE CO-OPERATIVE BANK LTD.NO.1284, MUTTOM P.O. IDUKKI DISTRICT, RESIDING AT ANJALATHITTAYIL SANGRAPPILLY, MUTTOM VILLAGE, THODUPUZHA TALUK MUTTOM P.O.

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BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M SRI.N.A.SHAFEEK

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RESPONDENTS:

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THE SECRETARY TO GOVERNMENT CO-OPERATION (C) DEPARTMENT, STATE OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), IDUKKI, PAINAVU.

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THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), THODUPUZHA IDUKKI DISTRICT.

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THE MUTTOM SERVICE CO-OPERATIVE BANK LTD.NO.1284, P.O. MUTTOM, IDUKKI DISTRICT REPRESENTED BY ITS, SECRETARY.

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R4 BY ADV. SRI.JOHNSON MANAYANI

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R1 - 3 BY SR. GOVERNMENT PLEADER MUHAMMED SHAFI.M.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX:

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PETITIONER'S EXTS:

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EXT.P1: TRUE COPY OF THE ORDER NO. D-1341/03 DATED 29/12/2003 PASSED BY THE 3RD RESPONDENT.

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EXT.P2: TRUE COPY FO THE ORDER NO. G.O.(RT)N O.289/05/CO-OP./DATED 27/4/2005 PASSED BY THE FIRST RESPONDENT.

RESPONDENT EXTS NIL

ks.

TRUE COPY

P.S. TO JUDGE

K. VINOD CHANDRAN,J.

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======================

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W.P.(C)No.14373 of 2005

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Dated this the 7^th day of June 2013

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JUDGMENT

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The petitioner is aggrieved by Ext.P1 order confirmed in appeal by Ext.P2. The brief facts are that the petitioner was appointed on 30/4/1981 as a Salesman(Trainee) and was confirmed on 1/1/1982 in the pay scale of 115-7-150-10-210. Subsequently he was promoted on 1/7/1985 as Store Manager in the scale of pay of Junior Clerk; 170-10-220-15-325. The post of Store Manager having been abolished, the petitioner was accommodated as an Attender on 01/04/2000. While he was continuing so, the Respondent-Bank passed a Resolution to grant the petitioner Higher Grade in the pay scale 1205-1980 with effect from 1/7/1995 and the same was sent to the third

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WPC 14373/2005

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respondent for approval. However while considering the grant of Higher Grade, the third respondent found that the petitioner's promotion to the post of the Store Manager and the fixation of salary available in the post of Junior Clerk was irregular in so far as the petitioner did not have SSLC, which is the prescribed qualification for Junior Clerk. Hence it was directed that the salary of the petitioner be re-fixed in the scale of 120-8-136-10260 with effect from 1-7-1985, that is the date of his promotion as Store Manager.

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The appeal filed against the said order was dismissed by Ext.P2. On a consideration of the facts as well as the qualification for the post, it was found that no qualification as such has been prescribed for Store Manager. But on the ground that the other employees who were promoted as Store Manager, were having the qualification of SSLC., the Appellate Authority confirmed Ext.P1 order.

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The petitioner is before this Court alleging violation of principles of natural justice and also sustainability of the order, when he was not responsible for the fixation of pay. It is the contention of the learned counsel for the petitioner, as also the

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WPC 14373/2005

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learned counsel for the respondent-Bank that the Bank had passed the Resolution to promote him as a Store Manager and fix his pay in the scale available to Junior Clerks.

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Looking at Ext.P1 order, it is very evident that no notice was issued to the Petitioner before it was directed to revise his pay scale to a lower one, that too, with retrospective effect from 1985. The Appellate Authority has also found that there is no qualification prescribed for the post of Store Manager. Even the respondents do not have a case that the post of Store Manager was not a sanctioned one. In any event there is no dispute with respect to the fact that the petitioner had continued working in the post of Store Manager till his adjustment in the post of Attender at the time of abolition of the Store Manager's post. The petitioner's pay in the lower post on the abolition of the higher post was also protected while he was appointed as an Attender. Only after considerable passage of time, that is in 2001, when the Bank sought for fixation in the Higher Grade, as

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per Resolution passed by the committee, Ext.P1 order came to be passed.

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WPC 14373/2005

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The issue of earlier fixation was not the subject matter before the Government and no notice was issued while ordering re-fixation to a lower pay scale. It would have been open to the third respondent to decline the higher grade fixation and then initiate fresh proceedings for fixation of pay in the lower scale. It is also pertinent to note that the petitioner was not in any manner responsible for the earlier fixation of pay, since the Managing Committee of the Bank had permitted the same and also passed resolution in favour of the petitioner. This Court cannot shut its eyes to the hardships caused to an employee when the pay disbursed to him is asked to be refunded after a considerable period of time. However, this Court also cannot sustain the irregular fixation made by the Co-Operative Society, as is evident from Exts.P1 and P2 orders.

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In such circumstances, on the ground of violation of principles of natural justice, Exts.P1 and P2 orders are set aside, in so far as it directs the revision of pay to the petitioner with effect from 1/7/1985. In any event even if the said revision is effected, there can be no refund of the amounts as per the revised pay in the lower scale till 29/12/2003, i.e. date of Ext.P1

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WPC 14373/2005

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order. This Court had already stayed the refund, necessitated by re-fixation. The third respondent is directed to reconsider the issue with notice to the petitioner and the 4^th respondent Bank within a period of four months from the date of receipt of a copy of this judgment. The order passed with respect to no refund being effected for amounts paid till 29/12/2003 is hereby made absolute. If the Government, on reconsideration, decides to refix the salary retrospectively at the lower scale from 1/7/1985, there cannot be any refund of amounts paid in the higher pay scale till 29/12/2003. However, the prospective effect of the petitioner's pay fixation and entitlement shall be subject to the orders passed by the third respondent.

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The writ petition is disposed of as above. No costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

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ks.

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True copy

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P.S.TO JUDGE

Thomas George v. Secretary to Government

Case brief

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Thomas George v. Secretary to Government

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