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2016 DIGILAW 1899 (GUJ)

Udabhai Chandabhai Khat v. State of Gujarat

2016-09-02

G.R.UDHWANI

body2016
JUDGMENT : G.R UDHWANI, J. In this petition, the petitioner has questioned the action of the respondents reverting the petitioner from the existing pre-revised scale of Rs.1200-2040 and the consequential recovery proceedings. 2. The petitioner joined the service on 14.12.1976 with respondent No. 2 as work-charge Electrician. He was placed in the pre-revised pay scale of Rs.1200-2040 on 22.6.1992 on the basis of Government Resolution dated 17.10.1988 Thereafter, his pay was revised to Rs.4000-6000 with effect from 1.1.1996 However, the respondent No. 2 has passed order on 13.8.2006 reverting the petitioner from the existing pre-revised scale of Rs.1200-2040 to Rs.950-1400. Hence the petitioner has filed the present petition questioning the action of the respondents. 3. The learned counsel for the petitioner has contended that the respondent has rightly fixed the pay scale of Rs.1200-2040. The order of the respondent No. 2 is contrary to the G.R Dated 17.10.1988 4. As against the above submission, the learned Assistant Government Pleader contended that the petitioner is not eligible to receive the benefit under G.R Dated 17.10.1988 5. The impugned order “Annexure-C” relies upon Government Resolution dated 18.8.1999 which had fallen for consideration of this court in Special Civil Application No. 2536 of 2008 wherein in paragraph Nos. 10 to 20, the following observations were made in almost similar situation: “10. It is contended that the pay scale was revised not on account of mistake committed by the respondents but it is only on account of the change in the policy of the Government as reflected in the Government Resolution dated 18.8.1999 It was argued that since the husband of the petitioner did not fall under any of the two scales prescribed in the Government Resolution dated 18.8.1999, he was not entitled to the pay scale fixed in the year 1989 and his pay scale was deemed to have been reduced with effect from 1.1.1996 (learned AGP states that date of 1.1.1996 is inadvertently mentioned, the said date may be read as 1.3.1989). 11. 11. From the above arguments, it is noticed that on one hand the petitioner pleads that by correcting the pay scale, a mistake is sought to be corrected in the grant of the pay scale to the husband of the petitioner on 1.3.1989 while on the other hand it is a specific case of the respondents that, in fact, no mistake was committed while fixing the pay of the husband of the petitioner on 1.3.1989 but the said pay scale was revised on account of the Government Resolution dated 18.8.1999 The respondents also contend that in absence of prescription of the pay scale in question in the Government Resolution dated 18.8.1999, the pay scale fixed on 1.3.1989 for the petitioner's husband cannot be said to have been approved by the Government. 12. This court, therefore, would like to examine as to whether by virtue of the Government Resolution dated 18.8.1999 could have revised the pay scale from Rs.1200-1800 to Rs.950-1400. The Government Resolution dated 18.8.1999 refers to four Resolutions mentioned at item Nos. 1, 2, 3 and 4 in the preamble. The Resolution goes on to clarify that the daily wagers are not government servants but on account of representation made to the Government, it has been decided to extend certain benefits also to the daily wagers. Consequently, it provides for two pay scales as referred to hereinabove for daily wagers. It appears that the Government Resolution dated 18.8.1999 was passed when the new pay scales recommended by the Fifth Pay Commission were sought to be implemented for the government servants. The Resolution nowhere whispers the withdrawal or revision of the pay scales already granted to daily wagers preceding the date of Resolution i.e 18.8.1999 In fact, it merely revises two pay scales for daily wagers as referred to hereinabove. It does not say that the other pay scales granted to the daily wagers preceding the date of Resolution would be ineffective. It does not say that the other pay scales granted to the daily wagers preceding the date of Resolution would be ineffective. In fact, when a question was posed with regard to other pay scales, another Resolution dated 1.3.2001 came to be passed and in so far as the pay scale of Rs.1200-1800 with which the petitioner is concerned, question in Appendix-A to the Resolution dated 1.3.2001 was answered by stating that the Resolution dated 18.8.1999 only speaks about two pay scales and it was advised that for the queries in relation to the other pay scales, the Government may be approached. This makes the fact more than clear that apart from two pay scales referred to in the Resolution dated 18.8.1999, there existed other pay scales for daily wagers prior to 18.8.1999 As noticed above, the Resolution is silent and does not intend to correct the pay scale granted to the petitioner or other daily wagers as on 1.3.1989 It appears that the respondents have misconceived the tenor of the Resolution dated 18.8.1999 as if pay scales other than those prescribed in the said Resolution would automatically get obliterated and that is why in para 17 of the affidavit in reply it is stated that the husband of the petitioner was not falling in any of the two categories of the scales approved by the Government and therefore he was not entitled to the scale which he received. This court is of the opinion that the Resolution dated 18.8.1999 does not affect the right of the husband of the petitioner in respect of the pay scale fixed on 1.3.1989 This court is further of the opinion that the said Resolution cannot be retrospectively applied so as to withdraw the pay scales already granted to the daily wagers preceding the date of the Resolution. 13. This takes the court to the next question as to whether a mistake can be corrected belatedly and on that basis recovery of the salary already paid to the employee can be made. 14. Though the learned counsel for the petitioner has referred to various decisions, it would be apt to refer to few of them for the purpose of this petition. In Lilaben Digambar Navre (supra), this court was almost confronted with similar facts as is evident from paragraph No. 3 of the decision. 14. Though the learned counsel for the petitioner has referred to various decisions, it would be apt to refer to few of them for the purpose of this petition. In Lilaben Digambar Navre (supra), this court was almost confronted with similar facts as is evident from paragraph No. 3 of the decision. In paragraph No. 11, the court made the following observations:- “Though it is open to the State to correct its mistake of wrong pay scale and no employee as a matter of right can claim to continue with the wrong pay scale, however, every State action must pass through the test of reasonableness as envisaged by Article 14 of the Constitution of India. If the State when faced with any action initiated by its employee or any citizen expects him to be vigilant enough to take action within reasonable time, the State is also expected to take action against its employees or the citizens within the reasonable span of time which may not be as expected from a citizen or an employee………” 15. The learned Assistant Government Pleader urged that this decision is distinguishable on the ground that the petitioners were not granted an opportunity of being heard and it was under these circumstances that the above observations came to be made. In the opinion of this court, the observations quoted above has nothing to do with the issue of principle of natural justice. The observations are general proposition of law and would squarely apply to the facts of the present case. 16. In Bharat Sanchar Nigam Ltd. (supra), the jurisdiction of the authority to correct the mistake was recognized by the Supreme Court in the following terms in paragraph No. 32: “Indisputably, mistakes can be rectified. Mistake may occur in entering into a contract. In the latter case, the mistake must be made known. If by reason of a rectification of mistake, except in some exceptional cases, as for example, where it is apparent on the face of the record, mistake cannot be rectified unilaterally. The parties who that would suffer civil consequences by reason of such act of rectification of mistake must be given due notice. Principles of natural justice are required to be complied with. The fact that there was no mistake apparent on the face of the records is borne out by the fact that even the officers wanted clarification from higher officers. Principles of natural justice are required to be complied with. The fact that there was no mistake apparent on the face of the records is borne out by the fact that even the officers wanted clarification from higher officers. The mistake, if any, was sought to be rectified after a long period; at least after a period of three years. When a mistake is not rectified for a long period, the same, in law, may not be treated to be one.” (emphasis supplied) 16.1 The emphasis made above would show that if a mistake is not corrected for a considerable long time, it ceases to be a mistake. 17. A reference may also be made to Rafiq Masih (White Washer) (supra), particularly, paragraph No. 12, which reads as under:- “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. (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 employer's right to recover.” 17.1 Thus no recovery is permissible in the circumstances indicated by the Supreme Court in paragraph No. 12 above. 18. In Paras Nath Singh v. State of Bihar, (Civil Appeal No. 2671 of 2009) decided on 21.4.2009 by the Supreme Court, the following observations were made in paragraph Nos. 6 and 7: “6. 18. In Paras Nath Singh v. State of Bihar, (Civil Appeal No. 2671 of 2009) decided on 21.4.2009 by the Supreme Court, the following observations were made in paragraph Nos. 6 and 7: “6. Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implications of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs.1,01,529.50, out of which certain amount has already been recovered from the salary of the appellant by the State Authorities, we are of the view that a lenient view should be taken and the amount already paid by the State Authorities to the appellant shall not be recovered. 7. However, whatever amount that has already been recovered, shall not be paid back to the appellant.” 19. The learned counsel for the petitioner has relied on the said observations to contend that if a person does not know the implications of the undertaking and in absence of any fraud or misrepresentation, the undertaking would not be binding and the recovery cannot be effected. On the other hand the learned Assistant Government Pleader would distinguish the judgment with the submission that the language used in paragraph Nos. 6 and 7 indicates that only lenient view was taken by the Supreme Court and the observations made in paragraph No. 6 is not a law declared by the Supreme Court, neither it constitutes any direction and in fact, the observation made in paragraph No. 7 that the recovery already effected shall not be paid back to the appellant therein, would show that the recovery was permissible. In the opinion of this court, the factors like illiteracy of the person who files an undertaking and absence of fraud and misrepresentation are the relevant consideration for the purpose of examining as to whether the undertaking given by such person is binding upon him or not. In the instant case, the husband of the petitioner was a daily wager as good as Class IV employee. The petitioner was all throughout denied the terminal benefits on the ground that huge amount of Rs.2,60,000/- was outstanding against her. In the instant case, the husband of the petitioner was a daily wager as good as Class IV employee. The petitioner was all throughout denied the terminal benefits on the ground that huge amount of Rs.2,60,000/- was outstanding against her. It is presumed that she being the wife of a daily wager virtually doing the work of Class-IV employee would not be that literate to understand the implications of the undertakings and therefore, in the facts and circumstances as indicated by the Supreme Court in paragraph No 6 above, a lenient view deserves to be taken in the case of the petitioner as well. 20. In view of the above discussion, this court is of the opinion that the Government Resolution dated 18.8.1999 was misconceived by the respondents and withdrawal of the pay scales already fixed for the husband of the petitioner on 1.3.1989 was unwarranted and unreasonable and such action could not have been taken retrospectively, almost after a period of 16 years and effect to such action was given after the death of the employee on the date aforestated. Even if the fixation of pay scale as on 1.3.1989 is treated as a mistake, it should have been corrected within a reasonable time and as observed by the Supreme Court in the case of Bharat Sanchar Nigam Ltd. (supra), a period beyond three years cannot be considered to be a reasonable period in the facts of the present case.” 6. In view of the decision rendered by this court in Special Civil Application No. 2536 of 2008, in the opinion of this court, it would not be open for the respondents to review the pay scale already fixed on the basis of G.R dated 18.8.1999 and 1.3.2001 It seems that in the show cause notice, G.R dated 18.8.1999 was substantially relied upon. Thus, the pay scale of the petitioner will have to be decided after taking into consideration the judgment rendered by this court in Special Civil Application No. 2536 of 2008, more particularly, the observation made by this court in relation to G.R Dated 18.8.1999 7. In view of above, the respondents are directed to verify the pay scale ready fixed after taking into consideration the judgment aforesaid within a period of six weeks from today. Rule is made absolute accordingly with no order as to costs.