Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 184 (GUJ)

Bharatsinh Senabhai Patel v. Union of India

2016-01-25

K.M.THAKER, S.R.BRAHMBHATT

body2016
JUDGMENT : S.R. Brahmbhatt, J. 1. Heard learned advocate for the parties. 2. The petitioner, by way of this petition filed under Article 226 of the Constitution of India, has approached this Court with following prayers. "(A) The Hon'ble Court be pleased to issue a writ or mandamus and/or certiorari or any other appropriate writ, order or direction, declaring the impugned decision of respondent adversely affecting the pension of the petitioner from Rs. 8745 to Rs. 7600 and recovering Rs. 3,32,193/- from DCRG of the petitioner as arbitrary, illegal, unjust and be pleased to quash and set aside the same and direct the respondents to refund the amount deducted from the DCRG of the petitioner and the arrears of amount adversely affecting the pension of the petitioner due to impugned decision. (B) Be pleased to declare that the respondents have acted arbitrarily adversely affecting the pension of the petitioner and effecting recovery from the DCRG of the petitioner as malafide, unjust and in violation of the principle of natural justice and fair play and be pleased to direct the respondents to pay all arrears of amounts to the petitioner as if no such adverse order was issued adversely affecting the retirement benefits and pension of the petitioner and further be pleased to direct the respondents to pay the same to the petitioner with 12% interest to be recovered from the personal pay of the erring officer. (C) Pending admission and final disposal of the petition be pleased to direct the respondents to restore paying pension to the petitioner as per last drawn salary, and refund the amount of DCRG deducted by the impugned decision, treating that no such adverse order was passed. (D) Any other and further relief as this Hon. Court deems fit and proper in interest of justice be granted." Thus, what is essentially under challenge is the order dated 28th September 1990 passed by the Divisional Security Commissioner, Vadodara regarding removal of the petitioner from service and order dated 23rd October 1996 passed by the Chief Security Commissioner, Mumbai, wherein the petitioner is awarded the punishment of minimum of pay scale for a period of 3 years with cumulative effect. 3. The facts in brief as could be culled-out from the memo of the petition deserve to be set-out as under. 4. That the petitioner joined the services as Constable at Mumbai w.e.f. 21st October 1974. 3. The facts in brief as could be culled-out from the memo of the petition deserve to be set-out as under. 4. That the petitioner joined the services as Constable at Mumbai w.e.f. 21st October 1974. Thereafter, he was transferred in the year 1975 to Bajuva and on passing of departmental examination he was promoted as Head Constable and posted at Malia Miyana. The petitioner was removed from services in the year 1990 by the respondent authority as there was an act of victimization on the part of the petitioner. The said penalty of removal from services imposed by the respondent authority, was ultimately set aside by this Court in S.C.A. No. 8494 of 1991. As against this, the respondents have approached the Division Bench of this Court by way of L.P.A. No. 230 of 1994, which also was dismissed on 4th September 1996. Thereafter, the respondents have issued lesser punishment of placing the petitioner in minimum pay scale for three years with cumulative effect vide order dated 23rd October 1996. The period from removal of services till reinstatement was treated as leave without pay by the respondent No. 2, vide its order dated 5th December 1996. The petitioner was retired from services on 20.02.2014. 5. The petitioner was granted the benefits of A.C.P. w.e.f. 20th October 1999. But, after superannuation for payment of dues, i.e. amount of gratuity, the respondent No. 3 issued an order effecting recovery of Rs. 3,32,193/- from payment of DCRG of the petitioner on the ground that in the year 1999, the benefits granted to the petitioner was by mistake. 6. The pension of the petitioner is reduced accordingly with adverse effect on the pension from Rs. 16,490/- to Rs. 15,200/-. There was a decrease in the basic pension of the petitioner from Rs. 8,745/- to Rs. 7,600/- and recovery is also effected. The amount of Rs. 3,32,193/- was deducted from the amount of DCRG-cum-Retirement Gratuity, by the respondents. Being aggrieved and dissatisfied with this act of the respondents, the present petitioner has filed this petition. 7. Mr. Pathak, learned advocate for the petitioner, submitted that the impugned decision of the respondents to come to the conclusion that the petitioner was wrongly granted the benefits of A.C.P. w.e.f. 18th October 1999 is unjust, arbitrary, illegal and without application of mind. 8. 7. Mr. Pathak, learned advocate for the petitioner, submitted that the impugned decision of the respondents to come to the conclusion that the petitioner was wrongly granted the benefits of A.C.P. w.e.f. 18th October 1999 is unjust, arbitrary, illegal and without application of mind. 8. Learned advocate for the petitioner, further submitted that without affording an opportunity of being heard to the petitioner, the respondent authorities cannot pass the adverse orders affecting the pay fixation of retirement benefits of the petitioner, which has resulted into recovery from the retirement benefits of the petitioner. 9. Learned advocate for the petitioner, further submitted that without following the procedure of law and without justification, the respondent authorities cannot make alteration in the order of granting benefits of A.C.P. He submitted that till retirement, no such decision was communicated nor any reason stated to the petitioner by the respondents for adversely affecting the pay and consequential benefits of the petitioner. He further submitted that the respondents are unable to point out the justness and fairness of their act in effecting such huge recovery from the petitioner. 10. Learned advocate for the petitioner, submitted that it is now well settled principle of law as held by the Hon'ble Apex Court that even as per the say of the department that if the employee wrongly granted certain benefits, no recovery can be effected particularly after retirement of the employee from the services. Therefore, the impugned decision on the part of the respondents is against the legal principles and required to be set aside. 11. It is contended by the learned advocate for the petitioner, that petitioner is entitled to get the benefits of A.C.P., which was introduced in the year 1989, as the petitioner joined the services from the year 1974 and was fulfilling all the conditions to get the benefits of A.C.P. 12. It is further contended by the learned advocate for the petitioner, that there is no source of power available to the respondents to effect any recovery from the Death-Cum-Retirement Benefits (DCRG). The same is fundamental right of an employee and no circumstances are available with the respondents to withhold the amount of Rs. 3,32,193/-from DCRG. 13. Learned advocate for the petitioner, submitted that the unilateral decision on the part of the respondents that the pension of the petitioner is reduced from Rs. 8,745/- to Rs. The same is fundamental right of an employee and no circumstances are available with the respondents to withhold the amount of Rs. 3,32,193/-from DCRG. 13. Learned advocate for the petitioner, submitted that the unilateral decision on the part of the respondents that the pension of the petitioner is reduced from Rs. 8,745/- to Rs. 7,600/- is without any justification and hence requires to be set aside. The pension of the petitioner is required to be fixed on the basis of last pay, which was Rs. 16,490/- in the month of February 2014 instead that the fixed by the respondents at reduced scale of pay. He further submitted that the respondents are required to be directed to refund the deducted amount from the petitioner with 12% interest. 14. Learned advocate for the petitioner, contended that the amount of interest and cost are required to be recovered from the personal pay of the erring officer. He further contended that the amount of Rs. 3,32,193/- is withheld from the DCRG of the petitioner and the pension of the petitioner is also adversely affected every month. It is submitted that the respondents be directed to continue to pay the pension of the petitioner on the basis of the fixation at Rs. 16,490/- and start paying the same forthwith. It is further submitted that the amount which is recovered is also a huge amount and the same is required to be directed to deposit by the respondents before this Court. Therefore, the order impugned be quashed and set aside. 15. As against this, Mr. Karnavat, learned advocate for the respondent No. 4, submitted that the after departmental inquiry, the petitioner was removed from service w.e.f. 8th October 1990 and his suspension period was w.e.f. 18th June 1990 to 7th October 1990. The said period was treated as suspension i.e. non qualifying service. 16. Learned advocate for the respondent No. 4, contended that thereafter the petitioner was reinstated in service on 29th November 1996 and awarded lesser punishment of minimum of pay scale for a period of 3 years with cumulative effect vide order dated 23rd October 1996 and the period from removal to reinstatement was treated as non qualifying service by the competent authority. The said order was not challenged and therefore, has become final, conclusive and binding on the parties. 17. The said order was not challenged and therefore, has become final, conclusive and binding on the parties. 17. Learned advocate for the respondent No. 4, further contended that during the examination of his entire pay fixation and service record, it was found that he was wrongly granted the benefit of 1st and 2nd financial up-gradation under A.C.P. scheme on 20th October 1999, whereas the petitioner was not entitled for the same on that day because he was undergoing punishment on 20th October 1999. 18. It is submitted by the learned advocate for the respondent No. 4, that the scheme of A.C.P. Was operational from 1st October 1999 and as per the policy, benefits of 1st financial up-gradation under A.C.P. scheme was required to be given after completion of 12 years of regular qualifying service and 2nd financial up-gradation under the scheme was required to be given after completion of 12 years of regular service from the date of the first financial up-gradation subject to clearance of DAR/Vig./criminal pending cases. He has further submitted that the petitioner was entitled for the 1st financial up-gradation as per the policy after 12 years of qualifying service and completion of punishment on 29th November 1999. But, he was entitled to 2nd financial up-gradation under the scheme after 24 years qualifying service on 8th December 2014, as his suspension period was treated as non qualifying service. 19. Learned advocate for the respondent No. 4, vehemently contended that on granting of benefit of ACP on 20th October 1999, the petitioner was wrongly granted annual increment every year regularly, though he was not entitled for such increment, as his suspension period was treated as non-qualifying service. It is submitted by the learned advocate for the respondent No. 4, that the over payment and its recovery was informed to the petitioner on 24th February 2004 i.e. before the date of his retirement and the same was recovered from his settlement dues at the time of his retirement and not after his retirement. His last basic pay was affected due to the modification of his previous wrong pay fixation in accordance with Rules. It is further submitted that the petitioner was retired on 28th February 2014 and not on 20th February 2015. 20. His last basic pay was affected due to the modification of his previous wrong pay fixation in accordance with Rules. It is further submitted that the petitioner was retired on 28th February 2014 and not on 20th February 2015. 20. It is submitted by the learned advocate for the respondent No. 4, that the petitioner ought to have drawn the attention of the respondents to the extra amount being received by him. The petitioner cannot be permitted to take benefit of something which is not due to him. Hence, he requested the Court to dismiss the petition. 21. The Court has heard learned counsels and perused the papers. The fact remains to be noted that the petitioner was in fact made to suffer the substituted punishment of removal to that of to be placed, in minimum pay scale for three years with cumulative effect vide order dated 23rd October 1996. However, for any reason, the petitioner was granted benefit of ACP and based thereupon he drew his salary continuously till he retires on attaining the age of superannuation in the year 2014 more precisely on 20th February 2014. The petitioner was prior to his retirement never visited with any show cause notice or granted any opportunity of being heard on the aspect of any error on the part of the authorities in granting him the benefit of ACP and based thereupon, the wages and the payment. We at this stage, need not go into the claim of the parties that there was a wrongful according of ACP or otherwise. But, suffice it to say that the fact that the petitioner had never been granted any opportunity of being heard and was continuously paid all the benefits and wages and emoluments on that basis and was even permitted to retire on attaining the age of superannuation in the year 2014 in itself, is sufficient to hold that the deduction from DCRG and the reduction in pension could not have been effected without affording any opportunity of being heard to the petitioner. 22. 22. It is further require to be noted that assuming for the sake of examining, without holding that there was a mistake on the part of the authorities in granting the benefits of ACP, w.e.f. 20th October 1999, but that error or mistake was perpetuated and it culminated into petitioner receiving his emoluments based thereupon till he was permitted to retire. Learned counsel for the petitioner is justified in submitting that the pension Rules otherwise also would provide for fixation of pension on the last drawn pay and in the instant case, last drawn pay would indicate that the petitioner was in fact required to be treated and paid pension, as if there was no mistake, which would also not permitted to authorities to effect deduction from the amount of DCRG as ordered. 23. The fact remains to be noted that the authorities have in blatant disregard to the principles of natural justice not only reduces the pension of the petitioner, but also ordered recovery from the amount of DCRG, which cannot be sustained in eye of law from any count. The Supreme Court has also in case of State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , held that the recovery is not permitted even on account of mistaken payment. In the instant case, the petition succeeds on two counts namely; That the recovery was effected without affording opportunity of being heard and the pension reduction was also brought about without affording an opportunity to the petitioner. The petitioner was in fact required to be heard by appropriate show cause notice before effecting his right to receive pension and the gratuity amount. Moreover, the Supreme Court judgment in case of Rafiq Masih (supra) would rather clinch the issue in favour of the petitioner that even if there is mistaken payment, the same is not required to be recovered unless it is said to be fraudulently received by the employee concerned. Fortunately for the petitioner, in the entire petition and the reply and the papers, there is no whisper about any such attempt on the part of the petitioner. Fortunately for the petitioner, in the entire petition and the reply and the papers, there is no whisper about any such attempt on the part of the petitioner. Though the counsel for the respondent did argue that the petitioner was under obligation and duty bound to point-out the authority that he was not entitle to receive the benefit of ACP, but that had not brought to the notice of the authority. We are unable to accept the submission of the counsel for the respondent for the simple reason that the petitioner when was legitimately expecting to receive the benefit and he received, then omission on his part to mention to the authority that he has not been entitled to receive the wages cannot be equated with any fraudulent practice on his part. The Court is not at all impressed with the said submission and to non-suit the petitioner. 24. The Court is of the view that the action of the respondent is without any authority of law and is illegal and therefore, the order is required to be quashed and set aside. As a result thereof, the petition succeeds and the same is allowed by issuing following directions. "(i) The respondent shall refund the amount of Rs. 3,32,193/- recovered from the petitioner's DCRC within the period of two months from the date of the receipt of the order and also restore back the pension as if the said deduction had never been made. In other words, the petitioner's pension be restored as if there was no order of deduction passed." 25. The Court is not inclined to award any interest as prayed by the petitioner. Hence, the petition is partly allowed. However, there shall be no order as to costs.