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2006 DIGILAW 313 (HP)

PYARE LAL v. STATE OF H. P.

2006-10-10

NARINDER SINGH THAKUR, VIJAY PAL SINGH

body2006
ORDER Narinder Thakur, Vice-Chairman.—The applicants nine in number through this OA is mainly praying for the two reliefs: "(a) Quash the impugned orders A-l and A-2 issued arbitrarily, mala fiddly and illegally by the respondents; (b) Direct the respondents to keep on paying the proficiency increments/salary to the applicants as heithertofore with arrears and! Interest thereon @ 18% p.a. from the date of amount falling due till the date of realization with all the consequential benefits; (c) Direct the respondents to produce all the relevant documents alongwith their reply for perusal by this Tribunal.........." 2. The applicants are aggrieved by the impugned orders dated 9.5.2005 Annexure-A/1 and 14.9.2005 Annexure-A/2 issued by the respondents whereby they have arbitrarily re-fixed the salary of the applicant to his dis-advantage and resultantly were going to make the recovery from him. 3. The case of the applicant is that he was initially appointed on 22.10.1965 as a untrained JBT and thereafter he was imparted training by the respondent? Department during 1971-1973. Thereafter promoted as Head Teacher in 199^ and accordingly the pay of the applicant was fixed after giving benefit of FR-22(l) (a) in the old pay scale in which the applicant was. It is further stated by the applicant that after the revised pay scales came into force w.e.f. 1.1.1996 the pay of the applicant was accordingly fixed again in accordance with the FR 22 (i)(a)(l). The applicant was further promoted as CHT w.e,f 7.6.2003. The applicant has retired from service on 31.5.2005. 4. It is averred that at the relevant point of time, the appointments of JBT Teacher used to be made first and then appointed incumbents used to be given on the job training with full pay and allowances due to the reasons that there were not many JBT Teacher training centers available. However, the respondent department used to arbitrarily and illegally depute the incumbents for training without having any regard to the date of appointment and the respondent department used to select the teachers for training on the presumption that sending on training at random order will not affect the service conditions, more particularly the seniority of the teachers adversely. 5. However, the respondent department used to arbitrarily and illegally depute the incumbents for training without having any regard to the date of appointment and the respondent department used to select the teachers for training on the presumption that sending on training at random order will not affect the service conditions, more particularly the seniority of the teachers adversely. 5. On 1.9.1979 and 28.12.1979 (Annexures-A-1 and A-2) the applicant and similarly situated teachers were given running grade w.e.f. the date of initial appointments by the respondent department, meaning thereby that the initial date of appointment, is determinative factor for all purpose, including for grant of proficiency increments etc. 6. On 1.12.1986 the Punjab Government granted seniority to the untrained teachers to its State w.e.f. the date of their appointment. Similar principle was adopted by the respondent department and accordingly on 6.6.1990 the seniority was granted to the incumbents from their respective initial appointments irrespective of their being sent for training. However, this decision was on later date changed without observing principles of natural justice to the dis-advantage of the applicant and the other similarly situated persons and as such the same is not sustainable in the eyes of law. 7. The respondent department vide letter dated 13.5.1983 and 12.4.1990 has directed to count the period of training of the teachers as duty for all intents and purpose. Thus the respondent department took conscious decision to grant revision of pay scales to the teachers vide notification dated 5.5.1989 and sanction of additional increment by way of proficiency set-up (Annexure-6). Accordingly, the applicants and other teachers were granted proficiency set up w.e.f. 1.1.1986. 8. The respondent department vide impugned order dated 8.9.2004 (Annexures-A-1 and A-2 has ordered to recover the said amount as well as to re-fix the salary of the applicants arbitrarily and illegally without affording an opportunity of hearing to the applicants. 9. To the above averments of the applicants, the respondent department has filed its reply. 8. The respondent department vide impugned order dated 8.9.2004 (Annexures-A-1 and A-2 has ordered to recover the said amount as well as to re-fix the salary of the applicants arbitrarily and illegally without affording an opportunity of hearing to the applicants. 9. To the above averments of the applicants, the respondent department has filed its reply. In the reply it has been averred that Original Application is not maintainable as Annexure-A/1 dated 9.5.2005 has rightly been issued by the respondent department wherein it has been clarified that the untrained period of the JBT teachers cannot be counted for the purpose of seniority, proficiency step up as well as for the purpose of selection/senior scale and vide this annexure all the BPEOs have rightly been directed to verify all these cases, where selection/senior scale has been granted by counting the untrained period of JBT Teachers, the recovery of same be made from such teachers. The benefit of untrained period to the applicants has wrongly been given by counting the service of untrained period, however, the untrained period of the applicants cannot at ail be counted for the purpose of allowing proficiency step up and senior selection scale. This question stand already adjudicated by this Tribunal in O-A. No. 1167/1993 titled as Hira Lai v. State of H.P., decided on 28.4.1997. In the said judgment this Tribunal has held in para 16 as under:— "A JBT Teacher is entitled to senior scale and selection scale after eight or eighteen years of service as JBT teacher, meaning thereby that 8 years or 18 years services has to be reckoned on such viz-a-viz the post of JBT teachers none else. In this view of the matter the instructions issued by the respondent State that for the purpose of proficiency step up increments, the period of 8 or 18 years of service has to be reckoned from the date of employee, qualifying training course of JBT appears to be legal and valid." 10. In this view of the decision of this Tribunal the Original Application for same relief cannot be filed. Hence the applicants are estopped to file the present Original Application. Therefore, in view of these facts the untrained period of JBT service cannot be counted for the purpose of allowing proficiency Step up and seniority/selection grade. The order of pay fixation i.e. A-2 has rightly been issued by the respondent. 11. Hence the applicants are estopped to file the present Original Application. Therefore, in view of these facts the untrained period of JBT service cannot be counted for the purpose of allowing proficiency Step up and seniority/selection grade. The order of pay fixation i.e. A-2 has rightly been issued by the respondent. 11. We have heard the matter with the consent of the parties as it pertains to retiree and their dues are withheld and the arguments were heard at length, record and pleadings were perused. 12. The fact remains that the impugned order Annexure-/Al has been issued without affording an opportunity of hearing to the applicant? thus the principle of natural justice have been violated. The parties with respect to this issue are not at variance nor could it be found out from the pleadings that the applicants were afforded any opportunity of hearing by the respondent department before having resorted to impugned Annexure-A/l. 13. Admittedly the applicants have been receiving the benefits, now sought to be withdrawn, since 1.1.1986 as is evident vide Annexure-A/ 1 itself. The alleged clarification is of much later date i.e. in the year, 1997. The parties are not at variance to the position that the benefits were given by the respondent department itself and there was no misrepresentation of facts on the part of the applicants. The benefits were given in pursuance to certain instructions issued by the department itself. Now, the department is seeking to withdraw the said benefits, more so after the applicants have retired, which cannot be permitted to be done in view of the well settled legal position in this regard. 14. From the pleadings and the arguments advanced by the learned Counsel for the respective parties, it remains to be seen whether respondent department has rightly resorted to the impugned action against, the applicants after retirement without affording any opportunity of being heard. 15. So far as the question of non-observation of principle of natural justice is concerned, it leaves no doubt to my mind, that same has been violated. Salary, pension, gratuity etc. are the property of an individual under Article 300-A of the Constitution of India. The said article provides that no person shall be deprived of his property save by authority of law. Salary, pension, gratuity etc. are the property of an individual under Article 300-A of the Constitution of India. The said article provides that no person shall be deprived of his property save by authority of law. Therefore, it was not essential but also mandatory on the part of respondents to issue show cause notice to the applicants before having resorted to their impugned action. The Honble Apex Court in AIR 1994 SC 2480, Bhagwan Shukla v. Union of India and others, has held that;— "3. We have heard learned Counsel for the parties. That the petitioners basic pay had been fixed since 1970 at Rs. 190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181/- p.m. from Rs. 190/-. P.m. in 1991 retrospectively w.e i. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant from Rs. 190 to Rs. 181 w.ei. 18.12.1970." 16. In fact similar observation have been made by the Honble High Court of H.P. titled as Mahavir Singh v. Union of India, 1997 (2) Shimla Law Cases page 385. 17. 190 to Rs. 181 w.ei. 18.12.1970." 16. In fact similar observation have been made by the Honble High Court of H.P. titled as Mahavir Singh v. Union of India, 1997 (2) Shimla Law Cases page 385. 17. Similarly the Honble Apex Court has restrained the department from effecting the recovery in the case reported in 1995 (2) SCT 421 titled as State of Orissa v. Adwait Charan Mohanty, 1994 (2) SCC 521 titled as Shyam Babu v. Union of India and 1995 Suppl 1 SCC 18 titled as Sahib Ram v. State of Haryana.. 18. Admittedly, there was no misrepresentation or fraud on the part of the applicants in getting the excess payment. It will not only be unfair but also unjust if what has been paid to the applicants about two decades ago is taken back from them after their retirement. The impugned order visits upon the applicants civil consequences and will leave to undue financial hardship and as such cannot be sustained in the eyes of law. 19. In Ashish Taru Gosh v. State of West Bengal, 2005 (5) SLR 390 Calcutta High Court while dealing with the similar question held that in case where the employee has been getting higher scale and had been enjoying the benefits thereof, those have created vested right in such employee and therefore, before curtailing their vested right, the petitioners should have been given the show cause notice and in the absences of such notice act of reducing the pay scale is render illegal and as such order is liable to be -set aside. 20. The learned Counsel for the applicant has cited case law Rameshwar Lai Panwar v. State of Rajasthan, reported in 2005 (4) SLR 49 para 32 and Inder Jit Kaur Chahal v. State of Punjab and others, 2005 (4) SLR 247 paras 5 and 24 and Been Dayal Sharma v. State of Haryana and Punjab, 2005 (5) SLR 506 paras 5, 6 and 24. 21. This view was subsequently followed by the Division of this Court in case of Virender Chawala v. Chandigarh Administration, reported in 1984 (1) P&H 452. I am also fortified in my view by the observation of the Apex Court in case of Sahib Ram (supra)rf In the aforesaid case the Honble Supreme Court observed as under:— "Admittedly, the appellant does not posses the required education qualifications. I am also fortified in my view by the observation of the Apex Court in case of Sahib Ram (supra)rf In the aforesaid case the Honble Supreme Court observed as under:— "Admittedly, the appellant does not posses the required education qualifications. Under these circumstances, the appellant would be entitled to relaxation. The principle erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account .of any misrepresentation made by the appellant, that the benefit of higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant. The principle for equal pay for equal work would not apply to the scales prescribed by the University Grant Commission. The appeal is allowed partly without any order as to costs. In view of the settled law, we have no hesitation in holding that the entire action of the respondents is arbitrary being violative of rules of natural justice, and therefore, contrary to Article 14 of the Constitution of India. The petitioner had joined the respondent department on 28.10.1971. We find it a little difficult to accept that wrong fixation of the pay could not be recovered for a period of almost 40 years. We are also satisfied that the petitioner cannot be held responsible for having made any misrepresentation to the respondents which resulted in wrong fixation of his pay. Now the petitioner has retired it would be wholly injustice to permit the respondent to recover the amount allegedly over paid to the petitioner. In our opinion the matter is securely covered by the observation made by the Supreme Court in case of Sahib Ram (supra)." 22. A similar view has been taken by this Tribunal in Brij Bhushan Aggarwal v. State of H.P. and others, OA 2982/2002 decided on 30.3.2005 and Mohinder Singh v. State of H.P., reported in 2006 (1) LHLJ 349. 23. So far the contention of the respondent with respect to decision of this Tribunal in OA No. 1167 /93 titled as Hira Lal v. State of H.P., is concerned, the same is not applicable in the instant case. 23. So far the contention of the respondent with respect to decision of this Tribunal in OA No. 1167 /93 titled as Hira Lal v. State of H.P., is concerned, the same is not applicable in the instant case. In the case of Hira Lal the respondent department has not paid any benefit to the said person. So he was claiming the benefit which this Tribunal denied as not found within the purview of the rules. In the present case, admittedly the benefits have been given by the respondent department on its own and without any mis-representation or fraud on the part of the applicants. Thus, in view of the case law discussed above, once the benefit has been given to an employee and there is no element of mis-representation or fraud on his part, the same cannot be recovered. As such, the decision of Hira Lal is totally in different context and cannot be made a basis for affecting the recovery. 24. In the above factual backdrop and the well settled legal position, we are of the considered view that the present Original Application deserves to be allowed and the same is allowed with direction that the illegal action of the respondents whereby they have re-fixed the pay of the applicant w.e.f. 1.1.1986 is quashed alongwith the impugned order contained in Annexures-A-1 and A-2 qua the applicant and as a result, the respondents are directed to release all the pensionary benefits to the applicant and repay the recovered sum if any. So far as recoveries are concerned, respondent department is restrained from making any recovery from the applicant of any amount paid to him. The respondents will also not be justified now in re-fixing the salary of the applicant as he has retired, after issuing him show cause notice as the applicant since retired from the service. So far as the payment of interest on account of pensionary dues is concerned we allow the same on the analogy of Government charges from an individual in case of refund of pension as per GI department of Pen. And PW OM No. F 7/1/1993-P & PW (F) dated 25.8.1994 and 31.8.1995 published in Swamy Pension Compilation 14th Ed. So far as the payment of interest on account of pensionary dues is concerned we allow the same on the analogy of Government charges from an individual in case of refund of pension as per GI department of Pen. And PW OM No. F 7/1/1993-P & PW (F) dated 25.8.1994 and 31.8.1995 published in Swamy Pension Compilation 14th Ed. 1998 at 40-41 wherein it is laid down that it has been decided that wherever the employees are required to refund the pensionary benefit received by them for service already rendered by them under the Central Government and State Government or autonomous bodies in order to avail of benefit of counting of past service for pension purposes in terms of the provisions of Rules 17 to 20 of CCS (Pension) Rules, 1972 and the department of Pension and pensioners welfare OM No. 28/10/84-PU dated 29.8.1984 as amended from time to time, the rate of interest will be rate applicable on GPF accumulation from time to time, from the period from the date of receipt of pensionary benefit to the date of their refund to the Government/autonomous body. The interest will be calculated in the same manner as is clone in respect of GPF balances. The above directions will be complied with by the respondents within a period of two months from this order. With this observation the Original Application stands finally disposed of. Original Application allowed and disposed of be calculated in the same manner as is done respect of GPF balances. The above directions will be complied with by the respondents within a period of two months from this order. With these observations the Original Application stands finally disposed of. Original Application allowed and disposed of.