IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.02.2009 C O R A M THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN Writ Appeal No.453 of 2007 C. Ponnammal ..Appellant versus 1.Indian Bank, Rep. by its Assistant General Manager, Circle Office, Chennai South, Ethiraj Salai, Chennai-8. 2.The Asst. General Manager, Indian Bank, Head Office, 66, Rajaji Salai, Chennai-1. 3.The Branch Manager, Indian Bank, East Abiramapuram, Chennai-28. ..Respondents Prayer : Writ Appeal filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 4.1.2007 passed in W.P.No.49 of 2003 Writ Petition praying to issue a writ of certiorarified mandamus to call for the records relating to the order dated 05.06.2002 of the 1st respondent bearing Ref.No.Ref.CO:CHE:SOU:PRNL:429:2002/2003 read with the consequential order dated 07.08.2002 of second respondent bearing Ref.pension/2002/9301912 in so far as it directs recovery of alleged excess payments and re-fixed the pay without notice, quash the same as illegal, arbitrary and unconstitutional and consequently direct the respondents to release the terminal benefits of the petitioner without making any deduction on the ground of excess payments. For Appellant : Mr. N.G.R. Prasad for M/s. Row & Reddy For Respondents : Mrs. Rita Chandrasekaran for M/s. Aiyar & Dolia https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T Prabha Sridevan, J. The writ petitioner is the appellant herein. She is a retired part-time Sweeper employed under the respondent-Bank. She was confirmed in 1/2 scale wages with effect from 1.12.1980. By order dated 6.6.1994, she was granted 3/4th scale wages under the Career Path Policy. She was granted an annual increment of Rs.100/- with effect from 1.10.1998. On 30.6.2002, she attained the age of superannuation and was, therefore, relieved from service. The third respondent, by his letter dated 11.4.2002, requested the first respondent to sanction increment to the appellant with effect from 1.10.1999. To this, the first respondent replied on 5.6.2002 stating that fixation should be granted only in accordance with some specifications and any excess payment made should be recovered. The terminal benefits were not immediately settled. 2. When the appellant made a representation to the third respondent, she was furnished with a copy of the impugned order dated 5.6.2002, by which her pay was fixed and orders were passed for recovery of excess payment made to her. According to the appellant, her pay was unilaterally altered without any prior notice to her and though she had drawn Rs.2,265/- from 1.10.1998, her pay was fixed at Rs.2,026/-. She gave a detailed representation on 7.9.2002. The respondents replied that the pay fixation done by the Bank was correct and there was no mistake. The appellant requested the Bank to drop the proposal to recover the alleged excess payment from her terminal benefits. She claimed that if the Bank is allowed to recover the excess payment made, she would be put to irrevocable hardship and loss. No notice was given to her while re-fixing the pay and therefore, she filed a representation for quashing the order directing the recovery of excess payment and the re-fixation of pay without notice. 3. The respondents, in their counter, submitted that the calculation sheet filed along with the counter shows the correct scale of pay and the salary and increments drawn by the petitioner were not in accordance with the norms and the appellant cannot take advantage of the error that had crept in. This counter is signed on 13.1.2003. Another counter was filed on 22.7.2006 giving the calculation to show how the pay should be fixed and how the Bank was justified in recovering the excess payment. 4. The learned single Judge held that the re-fixation of pay and the order for recovery was done without giving an opportunity to the appellant and therefore, an opportunity must be given for hearing her and thus disposed of the writ petition directing the respondents to hear the appellant and pass orders within thirty days. https://hcservices.ecourts.gov.in/hcservices/ 5. When the matter came up for hearing on 7.1.2009, we asked the counsel for the appellant and the respondents whether we could direct the second respondent-Assistant General Manager to give an opportunity to the petitioner and to pass appropriate orders. Learned counsel for the appellant submitted that instead of going before the authorities, the same exercise could be done here, since it is only a matter of calculation, to which the learned counsel for the respondents also agreed and it is in these circumstances that we have proceeded to determine as to what the proper pay should be. We have recorded the request of the learned counsel of the appellant that we could hear the matter and fix the pay on the basis of the calculation sheet given by both sides. At that juncture, we were not prima facie satisfied regarding the manner in which the Bank had done its calculation. Therefore, we directed the Bank to give us the working sheets to enable us to decide the matter. Accordingly, working sheets have been furnished by the respondents to enable us to decide the aforesaid question. 6. Learned counsel appearing for the appellant submitted that the manner in which the respondents have calculated the amount payable is contrary to the bipartite settlement and the Bank cannot take a step which would financially prejudice a poor sweeper. A copy of the relevant paragraphs of the bipartite settlement has also been produced before us. 7. The relevant clauses in the Bipartite Settlement relating to increment reads as follows : "When part-time employees who work for more than 6 hours a week are eligible for proportionate annual increments and they shall draw the increments on the anniversary dates of appointment. When part-time employees are appointed as full-time employees, the pro-rata increments earned by them in the course of their part-time service should be converted [notionally and only for the purpose of fitment] into full increments and their salary fitted from the date of their appointment as full-time employees after taking into account such notionally added increments the fraction of an increment, if any, being granted to them by advancing the date of their next increment suitably. The advanced dated of increment will in such cases, become the date of their annual increment in future years. When wages of part-time employees are refixed from 1/3 to 1/2 or 3/4; or from 1/2 to 3/4 in the wage scale, the pro-rata increments earned by them in the course of their service in the lower proportionate wage scale should be taken into account for the purpose of fitment in the higher https://hcservices.ecourts.gov.in/hcservices/ proportionate wage scale together with the benefit of advancing the date of increment where the fraction of increment is involved as in the case of their absorption as full-time employee. If the part-time employees on conversion have been fitted in the past in a manner different from the one given as above they may be fitted as per the formula given herein. In case of those who were converted on a date prior to January, 1980, they should be notionally fitted on the date of actual conversion and the benefit to fitment given to them with effect from 1.1.80. The revised fitment formula will not apply in the case of the employees who have already received the pro-rata increments." 8. Learned counsel for the appellant referred to the second paragraph in the above extract which deals with the manner in which increment should be converted when part-time employees are appointed as full-time employees. Learned counsel admits that the appellant retired as a part-time employee. Therefore, the third paragraph which deals with the re-fixation of wages from 1/3rd to 1/2 or from 1/2 to 3/4ths is alone relevant. The earlier paragraphs will be relevant insofar as it is necessary to read it to throw light on the manner in which we should make the calculation. The calculation sheet has been furnished. Initially, this calculation was given :- Sl. No. Increment Date Basic Pay on 3/4 Scale eligible as per fixation Normal Basic (On Full Scale) Basic Pay already paid to the employee 1 1/07/1994 1500/00 2000/- 1905/00 2 1/10/1994 1552/50 2070/- 1972/50 3 1/10/1995 1605/00 2140/- 2040/00 4 1/10/1996 1657/50 2210/- 2115/00 5 1/10/1997 1717/50 2290/- 2115/00 6 1/10/1998 1777/50 2370/- 2190/00 7 1/10/1999 1837/50 2450/- 2265/00 8 1/10/2000 3142/50 2540/-(Rev–4190/-) 3750/00 9 1/10/2001 3255/00 2540/-(Rev–4340/-) 3750/00 Thereafter, taking into account the wage revision as per the Seventh Bipartite Settlement, the following basic pay details have been given :- https://hcservices.ecourts.gov.in/hcservices/ Stage 1/3 Scale 1/2 Scale 3/4 Scale Full 1 533/33 800/00 1200/00 1600/00 2 546/67 820/00 1230/00 1640/00 3 563/33 845/00 1267/50 1690/00 4 583/33 875/00 1312/50 1750/00 5 603/33 905/00 1357/50 1810/00 6 623/33 935/00 1402/50 1870/00 7 643/33 965/00 1447/50 1930/00 8 666/67 1000/00 1500/00 2000/00 9 690/00 1035/00 1552/50 2070/00 10 713/33 1070/00 1605/00 2140/00 11 736/67 1105/00 1657/50 2210/00 12 763/33 1145/00 1717/50 2290/00 13 790/00 1185/00 1777/50 2370/00 14 816/67 1225/00 1837/50 2450/00 15 846/67 1270/00 1905/00 2540/00 16 876/67 1315/00 1972/50 2630/00 17 906/67 1360/00 2040/00 2720/00 18 940/00 1410/00 2115/00 2820/00 19 973/33 1460/00 2190/00 2920/00 20 1006/67 1510/00 2265/00 3020/00 STAG 1 1040/00 1560/00 2340/00 3120/00 STAG 2 1073/33 1610/00 2415/00 3220/00 STAG 3 1106/67 1660/00 2490/00 3320/00 STAG 4 1140/00 1710/00 2565/00 3420/00 9. According to the learned counsel for the respondents, on the date on which the appellant moved to 3/4th scale, she had drawn 14 increments. Therefore, she started off on a salary of Rs.800/- and after 14 increments, she was receiving Rs.1,270/-. Since these 14 increments have been drawn on 1/2 scale, they should be converted to full increments, i.e., 14 x 1/2, which will be 7, and then, her basic should be now fixed at the 8th stage of scale, allowing her to draw 3/4ths of the said basic. The respondents have also stated that a person who has drawn 14 increments in 1/2 scale, on movement to 3/4ths scale, cannot receive the basic pay that a 3/4th scale person would have received at the end of 14 years of service. That would be equating unequals. Learned counsel for the appellant would submit https://hcservices.ecourts.gov.in/hcservices/ that the increment and the pay is only 1/2 of what the full scale pay person receives and to notionally reduce the number of increments to 1/2 would be to reduce the increment twice, which is unjust. Learned counsel submitted that the correct way in which it should be calculated is to take 14 increments as such, see what should be the pay for a full scale person after 14 increments and calculate 3/4ths of that. If we calculate like this, then after 14 increments, the appellant would be receiving Rs.2,540/- and 3/4ths of that is Rs.1,905/- and therefore, if it is calculated in this manner, there has been no excess payment. 10. We are afraid, neither of this calculation is right. The increments are given proportionately and once a year. They are given annually on the anniversary dates of the employees' appointments. In the first paragraph of the Settlement which deals with part-time employees who are appointed as full-time employees, the words read, "the pro-rata increments should be converted notionally and only for the purpose of fitment, into full increments". We are unable to read it in the manner the Bank has done, and that is to treat each increment as a 1/2 increment and add it up to arrive 1/2 of the number of increments. The Settlement does not speak of the number of increments and this would also make the terms "notional increment" and "to the fraction of the increment, if any" meaningless. If we make the calculation either as per the employee's calculation or as per the Bank's calculation, there will never be a fraction of an increment. In any event, this mode of conversion of the pro-rata increment into full increment will not apply to the appellant since she has not been appointed as a full-time employee. She is a part- time employee whose wages are re-fixed from 1/2 to 3/4th in the wage scale. Therefore, we cannot adopt the calculation made by the learned counsel for the appellant, which requires us to convert into full increments since that paragraph does not apply to her, but the paragraph is relevant to the extent that we should adopt the same mode of calculation, but the pro-rata increment on 1/2 time scale would be converted into pro-rata increment on a 3/4th scale. 11. The first increment on full scale is Rs.40/- and therefore, the appellant got Rs.20/-. The second increment is Rs.50/- and she got Rs.25/-. Had the appellant been in the 3/4th scale, she would have got 3/4ths of Rs.40/- and Rs.50/- respectively. We find that the full increment from the first increment to the 14th increment, which is the 15th stage, is as follows – 40, 50, 60, 60, 60, 70, 70, 70, 70, 70, 80, 80, 80, 90. Now, the appellant had earned 14 increments, which amounted to Rs.470/-, i.e., Rs.1,270/- (-) Rs.800/-. When she moved to 3/4th scale, this pro-rata increment earned by her in the lower wage scale is taken into account for the purpose of fitting in the higher proportionate wage scale. In 3/4th scale, the basic pay is Rs.1,200/-, if Rs.470/- is added to that, she would get Rs.1,670/-, which is between the 11th stage and 12th stage of the 3/4th scale. The appellant's pay at the 11th stage in 3/4th scale https://hcservices.ecourts.gov.in/hcservices/ would be Rs.1,657/50 and at the 12th stage, it would be Rs.1,717/50. Therefore, she will get the benefit of advancing the date of increment since there is a fraction of increment involved and therefore, her increment will be advanced to Rs.1,717/50 on the date of her absorption as 3/4th scale employee and this advanced date of increment will become the date of her annual increment in future years. Therefore, she will be fitted at Rs.1,717/50. If we calculate it this way, then every word of the Bipartite Settlement would have been employed to arrive at this conversion and no word or phrase would be otiose or redundant. The pro-rata increments earned by the employees are taken into account and they are fitted in the higher proportionate wage scale notionally and only for the purpose of payment, they are notionally converted into 3/4th increment, by adding this Rs.470/- to Rs.1,200/-, which is the basic pay of 3/4th wage scale and then, we arrive at Rs.1,670/-. This also gives meaning to the words "fraction of an increment, if any, being granted to them" contained in the Settlement. What we have done is to convert the part-time 1/2 increment into part-time 3/4 increment notionally only for the purpose of fitment, and by adding the fraction of such an increment too. The modes of calculation which have been adopted by the learned counsel for the appellant as well as the respondents make these words redundant or meaningless. 12. We must interpret an agreement in a way that no terms or words therein are rendered redundant and unnecessary. In this case, we have already stated that we are entering into this exercise of calculation because both the counsel agreed that to remit the matter back to the respondents would be prolonging the litigation and in any event, it would come back to this Court for resolution of the dispute. Now, to clarify that the method adopted by us would alone be beneficial to the employee, without violating the terms of the bipartite settlement, we will calculate the fitment of the appellant's salary, had she been appointed as a full-time employee on the date on which she moved to 3/4th scale. In this case, Rs.470/- was her pro-rata increment and if this is converted to full-time increment, then she would be entitled to Rs.2,070/- since Rs.1,600/- is the basic pay and if Rs.470/- is added to that, it would give us Rs.2,070/-. At the 9th stage, a full scale employee is entitled to Rs.2,070/- and no fraction of increment arises in the case of the appellant in this hypothetical situation. 13. Paragraph 4 of the counter affidavit filed by the Bank in the writ petition reads as follows : "The petitioner who was drawing Rs.1,270/- in the 1/2 scale as on 30.6.1994, should have been given fitment in the 8th stage (@ 3/4th of 8th stage) proportionate to the 14 years of service put in by her in the 1/2 scale (i.e., 1/2 x 14). In other words, her basic wages should have been fixed at Rs.1,500/- (i.e., 3/4 x Rs.2,000/-) as on 1.7.1994". https://hcservices.ecourts.gov.in/hcservices/ She was in her 15th stage in the 1/2 scale when she moved to 3/4th scale. What the respondents have done is, taken 1/2 of the 15th stage, which would be 7.5 and which they have taken as 8 and thus arrived at Rs.1,500/-. On the other hand, if they take 3/4ths of 15 – which they should, since she is moving to 3/4 scale – it will come to 11.25 and if the fraction of this figure is rounded off to the next full increment, it will be the 12th stage, and the 12th stage is Rs.1,717/50, which is in accordance with paragraph 4 of the counter. We arrived at the same figure earlier by adding the increments earned as 3/4 increments notionally for the purpose of fitment. 14. The only error in paragraph 4 is that, when the appellant moved to the 3/4th scale, they calculated her scale of pay at 1/2 stage, whereas they should have calculated it at 3/4th of her stage. So, whether we add the increments earned by her and treat them as pro rata 3/4ths increments and calculate it on the 3/4th basic pay, or whether we take the stage of increment, which is 15 and take 3/4ths of it, and fix her scale of pay accordingly at 3/4ths, we arrive at the same figure, viz., Rs.1,717/50. This is the stage at which she should have been fitted in her 3/4th scale of pay, and this is the pay she should have received on 1.7.1994 and the calculation should have been made accordingly. However, the Bank had erroneously calculated it at Rs.1,905/- since according to them, it was Rs.1,500/- and they have issued orders for recovery of the amount paid in excess. 15. It is well settled that when the employee had not misrepresented or is in no way responsible for the excess payment which was discovered by way of audit objection or otherwise, there can be no recovery. In (1994) 2 S.C.C. 521 [Shyam Babu Verma vs. Union of India], the Supreme Court held that where excess amount had been paid due to no fault of the employees, there can be no recovery and that any excess amount drawn by the writ petitioner cannot be recovered from her. In 2009 (1) SCALE 36 [Syed Abdul Qadir vs. State of Bihar], the Supreme Court has observed as follows : "This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had https://hcservices.ecourts.gov.in/hcservices/ knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Suppl. (1) SCC 18, Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521; Union of India vs. M. Bhaskar, (1996) 4 SCC 416; V. Ganga Ram vs. Regional Jt. Director, (1997) 6 SCC 139; Col. B.K. Akkara (Retd.) vs. Government of India & Ors., (2006) 11 SCC 709; Purshottam Lal Das & Ors. vs. State of Bihar, (2006) 11 SCC 492; Punjab National Bank & Ors. vs. Manjeet Singh & Anr., (2006) 8 SCC 647; and Bihar State Electricity Board & Anr., vs. Bijay Bahadur & Anr., (2000) 10 SCC 99." In 2008 (15) SCALE 486 [State of Bihar vs. Pandey Jagdishwar Prasad], it was held by the Supreme Court as follows : "It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. This Court in the case of Kailash Singh v. The State of Bihar and Ors. 2004 (1) PLJR 289 (SC), held that recovery sought to be made from the salary of the employees on the ground of alleged over stay in service on the basis of age assessed or considered, despite the fact that the employee has worked during the period of alleged over stay could not be made. In Sahib Ram v. State of Haryana and Ors., 1995 Supp. (1) SCC 18, this Court has held that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee." 16. For all the reasons stated hereinbefore, the writ appeal is allowed. The appellant's salary will be fitted as per the calculation done by us hereinabove and she will receive her future increments and all wage revisions accordingly. We make it clear that the calculation made by us will only apply to any future payments and any payment already made on the basis fixing her fitment at Rs.1,905/- shall not be recovered from the appellant. There shall be no order as to costs. Consequently, M.P. No.2 of 2008 is closed. sd/- Asst.Registrar /true copy/ ab Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Assistant General Manager, Indian Bank, Circle Office, Chennai South, Ethiraj Salai, Chennai-8. 2.The Asst. General Manager, Indian Bank, Head Office, 66, Rajaji Salai, Chennai-1. 3.The Branch Manager, Indian Bank, East Abiramapuram, Chennai-28. + 1 c.c. to M/s. Row & Reddy, Advocate. S.R.No.7029. + 1 c.c. to M/s. Aiyar & Dolia, Advocate. S.R.No.6914. Judgment in Writ Appeal No.453 of 2007 GV (CO) GSK 02.03.2009. https://hcservices.ecourts.gov.in/hcservices/