The court established that the increments earned during a penalty period must be restored upon its expiry when the penalty order specifies no postponement of future increments.

JUDGMENT

Jyoti Singh, J. (ORAL)

1. Present writ petition has been filed by the Petitioner seeking quashing of the impugned Office Order dated 19.12.2018 as well as issuance of writ of mandamus to the Respondent to refund the payment wrongly deducted from the retirement benefits with interest @ 12% per annum. Writ of mandamus is also sought for re-fixation of his pension on the basis of pay drawn on 30.11.2018, in terms of Order dated 28.01.2016.

2. Shorn of unnecessary details, the factual score of the case, to the extent relevant to decide the issue arising in the writ petition, is that Petitioner was working as Assistant Engineer with the Respondent when departmental proceedings were initiated against him and a penalty was imposed on 09.08.2012. Relevant part of the penalty order is as follows:

"reduction to lower stage in present scale of pay by two stages for a period of three years with direction that the officer will not earn increments of pay during the period of this reduction to the lower stage and on the expiry of such period the reduction will not have the effect of postponing of the further increment of his pay."

3. However, the Appellate Authority, vide order dated 31.10.2012, reduced the penalty and revised penalty is as under:

"reduction to lower stage in present scale of pay by one stage for a period of three years with direction that the officer will not earn increments of pay during the period of this reduction to the lower stage and on the expiry of such period the reduction will not have the effect of postponing of the further increment of his pay."

4. On expiry of the penalty period, Office Order dated 31.08.2015 was issued, whereby the pay of the Petitioner was fixed as Rs.24430+6600/-, which according to the Petitioner was erroneous since the same should have been Rs.27310+6600/-, restoring three increments withheld during the penalty period.

5. Accordingly, Petitioner made a representation on 14.10.2015 against the erroneous fixation, pointing out that the penalty imposed on him was with non-cumulative effect and therefore, the three increments earned during the penalty period be restored.

6. On receipt of representation from the Petitioner, Respondent sought a clarification on 20.10.2015 from the Services Department of Government of NCT of Delhi, pertaining to the fixation of pay. Significantly, on 27.11.2015, the Services Department clarified that the pay of the Petitioner may be fixed as per Case-3 of DoPT O.M. dated 06.02.2014, thereby giving him the benefit of three notional increments earned by him during the penalty period. Going by the opinion so received, Respondent fixed the pay of the Petitioner at Rs.27310+6600/-, vide order dated 28.01.2016. Petitioner was also granted 3rd MACP on 10.02.2016 in the pay scale of Rs.15600- 39100/- with grade pay of Rs.7600/- and the pay was revised to Rs.28330/-with grade pay Rs.7600/-.

7. Petitioner superannuated from service on 30.11.2018. However, post the retirement of Petitioner, Respondent issued an Office Order dated 19.12.2018, which is impugned herein, whereby pay of the Petitioner was again reduced from Rs.27310+6600/- to Rs.24430+6600/-, applying Case-2A of DoPT O.M. dated 06.02.2014, without any notice. By this reduction, pay of the Petitioner was reduced from Rs.102800+7600/- to Rs.94100+7600/-, resulting in a financial loss of Rs.7 lakhs approximatel