E VISWESWARAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE short point canvassed by the petitioner's learned advocate is that the petitioner who is working as a Second division Clerk in a Private Aided Institution has been deprived of the equivalent of two advance increments by order dated 4-9-1987. Petitioner's learned Advocate points out that by an earlier order dated 4-8-1978 the petitioner was sanctioned the two advance increments which aggregate to a small amount of rs. 40/- per month since he had passed the B. A. Degree examination. The petitioner was receiving these amounts which formed part and parcel of his pay packet until the impugned order was abruptly passed and the learned Advocate points out with considerable justification that it virtually amounts to a reduction of salary without any ground being set out for this. The petitioner has therefore challenged the impugned order dated 4-9-1987 and he submits that his salary ought to be restored to the earlier position.

(2.) THE learned Government Advocate submits that no formal reply has been filed and that he once again contacted the concerned officers today for necessary instructions and that they have assured him that the same will be given. He however points out that from the order dated 4-9-1987 it is clear that the petitioner was not entitled to the increments in question and that they had wrongly been granted which was why corrective action was required to be taken including the recovery of the excess payments. It is his submission that if due to an error the two advance increments which the petitioner was not entitled to have been sanctioned to him, that it is within the jurisdiction of the authorities to recover the excess amount paid and that therefore the order is fully justified.

(3.) A perusal of the order dated 4-9-1987 indicates that the petitioner has only been informed that the action is being taken as per the directions of the Commissioner. There is nothing in the order which indicates that he was not entitled to the increments and that the same have been given erroneously. There is another crucial aspect of the matter which requires to be stated because this Court has come across numerous instances of this type particularly where members of teaching profession are concerned while such orders are passed and it is necessary to uphold the submission canvassed by the petitioner's learned Advocate that once the petitioner was granted the advance increments for which he is entitled to in keeping with the Government resolutions because he acquired the higher qualification, that under no circumstances could this be taken away from him as it would amount to nothing short of a punishment order. One needs to take cognizance of the fact that a reduction in salary or rank can only be the result of a verdict of a disciplinary proceeding 'which is not the case here and therefore, the action is clearly bad in law apart from the fact that the type of order passed in the present case will have to be straightaway quashed on the ground of arbitrariness in so far as it does not set out any reasons. I do concede that it equally necessary to uphold the second limb of the argument canvassed on behalf of the petitioner which is to the effect that once advance increments were sanctioned to the petitioner and were paid to him, that rights have accrued in his favour and that assuming without admitting, that it was the department's case that the amount was erroneously sanctioned, the correct procedure would be that the petitioner should be informed that the department proposes to correct that error and it would have been open to the petitioner to point out to them that the amount was correctly sanctioned to him and that there is no error. In other words, in the absence of giving the petitioner an opportunity of representing against the contemplated action which was a step to his prejudice the authorities could not have straightaway passed an order of this type.