Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 546 (GUJ)

P. B. Nai v. State of Gujarat

2015-05-05

ABHILASHA KUMARI

body2015
JUDGMENT Abhilasha Kumari, J. 1. By preferring this petition under Article-226 of the Constitution of India, the petitioner has prayed that the order dated 15.11.2002 and letter dated 17.02.2003, issued by respondent No. 2, insofar as they direct recovery of Rs. 45,819/- to be made from the pension and Gratuity of the petitioner, be quashed and set aside. 2. Briefly stated, the facts of the case are that the petitioner was working as Senior Clerk under respondent No. 2, Joint Director of Agriculture, Mehsana Division. He retired on superannuation on 31.03.2002, on the same post. By an order dated 15.11.2002, passed by respondent No. 2, a fresh pay-fixation has been done and, consequently, recovery of excess amount has also been ordered by a letter dated 17.02.2003. The amount proposed to be recovered by the respondents is Rs. 45,819/-. Consequently, the pension amount of the petitioner would also be refixed to his detriment. Aggrieved by the above action, the petitioner has approached this Court by way of the present petition. 3.1 Mr. A.S. Supehia, learned advocate for the petitioner has submitted that no opportunity of hearing has been granted to the petitioner before passing the impugned order dated 15.11.2002 and issuing the letter dated 17.02.2003, directing recovery to be made from the petitioner. 3.2 it is further submitted that by the impugned order dated 15.11.2002, the higher pay-scale, which was granted to the petitioner with effect from 01.06.1987, is sought to be withdrawn and the pay of the petitioner is sought to be fixed on the basis of Selection Grade, from 05.01.1981. This action has been taken by the respondents after the retirement of the petitioner and relates back to a period of about twenty years. Hence, the passing of the impugned order and the consequential recovery, at this stage, is unjustified and against the principles of law enunciated by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 . 3.3 It is next submitted that it is not the case of the respondents that a wrong pay-fixation has been due to fraud or misrepresentation by the petitioner. Hence, as the petitioner is not responsible for the actions of the respondents, the impugned orders, which will have a detrimental effect upon the petitioner after his retirement, are illegal and unsustainable in law. 4.1 Mr. Hence, as the petitioner is not responsible for the actions of the respondents, the impugned orders, which will have a detrimental effect upon the petitioner after his retirement, are illegal and unsustainable in law. 4.1 Mr. Swapneshvar Goutam, learned Assistant Government Pleader for the respondents has submitted that the petitioner was granted a higher pay-scale erroneously and when it came to the notice of the respondents the error was sought to be corrected, for which purpose the impugned orders have been passed. 4.2 That, the petitioner has received both the Selection Grade and Higher Pay-Scale during the course of his service, which he has accepted without raising any objection. The petitioner gave an option for Selection Grade and then withdrew it and opted for Higher Pay-Scale. The petitioner further withdrew this option and again opted for Selection Grade. It is because of this confusion that an error was committed and the respondents mistakenly granted the petitioner the benefits of both Selection Grade and Higher Pay-Scale, which mistake was sought to be corrected by passing the impugned orders. Hence, there is no illegality in the action taken by the respondents. 4.3 it is further submitted that the correction of the error is an administrative procedure, therefore, it was not necessary to grant an opportunity of hearing to the petitioner. 5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 6. The issue involved in the petition, that is, the withdrawal of the higher pay-scale after several years, and that too after the superannuation of the petitioner and the consequential recovery, is now covered by a judgment of the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others (Supra). It would be worth quoting the relevant paragraphs of the said judgment, which has been rendered after considering the entire case law on the subject. The Supreme Court has held as below: "6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. The Supreme Court has held as below: "6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instance benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employers right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, for doing complete justice in any cause would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employees right would outbalance, and therefore eclipse, the right of the employer to recover. 9. ***** 10. In view of the aforestated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. & & & 18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover." 7. The case of the petitioner is squarely covered by the principles of law enunciated by the Supreme Court in the above judgment. If viewed in the context of the situations enumerated in paragraph-18 of the judgment, it is seen that the petitioner is a retired employee and was working on a Class-III post. Moreover, the recovery is sought to be made for a period which is in excess of five years. Hence, in view of the principles of law enunciated by the Supreme Court in the above judgment, the impugned order dated 15.11.2002 and letter dated 17.02.2003, insofar as they concern the recovery of Rs. 45,819/- from the petitioner, are unsustainable in law. 8. It may be noted that the petitioner has retired from service on 31.03.2002 and is surviving on the limited amount of pension granted to him. The impugned orders would have the effect of further reducing the pension received by the petitioner, which is bound to place him in financial hardship. The petitioner is a Senior Citizen, who would be adversely affected if the recovery is made from his pension. His hardship would be more onerous than that faced by the State Government due to wrong pay fixation, if the equities are carefully balanced. Hence, in view of the principles of law enunciated by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others (Supra), the following order is passed: The impugned order dated 15.11.2002 and the communication dated 17.02.2003, issued by respondent No. 2, are hereby quashed and set aside. Hence, in view of the principles of law enunciated by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others (Supra), the following order is passed: The impugned order dated 15.11.2002 and the communication dated 17.02.2003, issued by respondent No. 2, are hereby quashed and set aside. As the said orders have been stayed during the pendency of the petition, no amount is required to be refunded to the petitioner. 9. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. Petition allowed.