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2016 DIGILAW 2103 (GUJ)

Pravinbhai Kantilal Ganatra v. State of Gujarat

2016-10-04

N.V.ANJARIA

body2016
ORDER : N.V. ANJARIA, J. The petitioner is aggrieved by the action on part of the respondents in deducting the amount from his retiral benefits. By filing the present petition, he has prayed to set aside the said action, further sought to set aside, in that regard, order dated 04.04.2013 passed by Taluka Development Officer, Savarkundalathe third respondent herein. It is also prayed to set aside intimations dated 16.04.2013 and 26.04.2013. A direction is prayed for, to pay the retiral benefits, and to continue to pay regularly the pension on the basis of pay scale of Rs.5500-9000. It is next prayed to deposit Rs.5,41,865/-which was the amount recovered. 2. The petitioner was appointed as Clerk with the Savarkundala Nagar Palika in August 1975, where after he came to be appointed as Assistant Teacher in the Nagar Shikshan Samiti on 18.07.1983. The petitioner was paid the salary in the scale of Rs.5000-8000 from 01.06.1996 and in the scale of Rs.5500-9000 from 01.06.1998. Presently, the petitioner is a retiree, having attained the age of superannuation on 30.06.2012, and retired on 31.10.2012 at the end of academic term. 3. Outlining the background facts, in the year 2002, the petitioner had an occasion to institute Regular Civil Suit No. 28 of 2002 against the District Primary Education Officer and others claiming promotion and related rights. In the said suit, settlement was arrived at. By Purshish dated 07.09.2002, the suit was withdrawn as the dispute was settled. The Nagar Prathmik Education Committee passed Resolution No.53, treating the petitioner as a Trainee Teacher on the subject of English in the scale of Rs.5500-9000. The said Resolution shows that as the petitioner was the only teacher in English subject on the establishment and was above the age of 45 years, it was resolved to grant trained grade to him. 3.1 Accordingly, by order dated 25.09.2002, the petitioner was sanctioned the pay of Rs.290/from the date of his appointment, that is, from 16.08.1975. Further sanctioned for him was the revision of pay taken place from time to time. A formal order of even date was also passed giving the petitioner a trained grade and thus, accordingly the trained category pay scale of Rs.5500-9000. 3.2 The petitioner received the salary as above in the said scale of Rs.5500-9000 until he reached the age of retirement. A formal order of even date was also passed giving the petitioner a trained grade and thus, accordingly the trained category pay scale of Rs.5500-9000. 3.2 The petitioner received the salary as above in the said scale of Rs.5500-9000 until he reached the age of retirement. It is his case that all of a sudden, he was intimated that the scale of Rs.5500-9000 was not granted but pay scale of Rs.50008000 was payable. An amount of Rs.5,41,865/-came to be abruptly deducted from the retirement benefit of the petitioner. Copy of the challan produced on record of the petition showed that the deduction was effected. The third respondent Taluka Development Officer passed order dated 04.04.2013 whereby it directed recovery of Rs.4,66,290/-from the amount of gratuity and Rs.75,575/-by surrendering amount, making aggregate recovery Rs.5,41,865/-. It is on set of above facts that the petitioner has approached this Court by way of this petition. 4. Heard learned advocate Mr. Shirish Joshi for the petitioner and learned advocate Mr. Premal Joshi for the third respondent. Learned Assistant Government Pleader stood for the State. 4.1 The third and fourth respondents have filed their affidavit-in-reply. While the aforesaid facts and the factual aspects could not be disputed and have not been controverted, it is reiterated that under the Government Resolution dated 16.08.1994, the petitioner was entitled to higher pay scale of Rs.4500-125-7000 against the pay scale of Rs.4000-100-6000, however the Taluka Panchayat wrongly gave the pay scale of Rs.5500-175-9000. The reason supplied for withdrawal of the pay scale and effecting the recovery was that the office of Local Fund, Amreli by its letter dated 16.04.2013 directed to recover the amount, pursuant to which, the same was acted upon. It appears that by communication dated 17.02.2012, Taluka Development Officer stated to the District Primary Education Committee that as per the instructions from the auditors, the higher payscale of Rs.5500-9000 granted to the petitioner was liable to be revised to downsize to Rs.5000-8000 and the proposal was forwarded. Thus, the recovery of the amount from the petitioner was based on the audit objection. 5. It is a freaky ground unless supported by law to urge and act upon to justify an action or decision that since the auditors objected, the government or any authority changes its decision. The administrator or decision making authority in the government cannot be permitted on the view of auditors. 5. It is a freaky ground unless supported by law to urge and act upon to justify an action or decision that since the auditors objected, the government or any authority changes its decision. The administrator or decision making authority in the government cannot be permitted on the view of auditors. The defence that audit objected, is quite shakey defence ordinarily not to be countenanced. However, there is an outweighing ground here. 5.1 In Syed Abdul Qadir vs. State of Bihar [ (2009) 3 SCC 475 ], the Apex Court observed that relief against is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employee from hardship that will be caused to him if recovery is ordered. In paragraph 59, the Court observed, disallowing recovery of what was an excess payment in that case, “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible.....” 5.2 In State of Punjab vs. Rafiq Masih [ AIR 2015 SC 696 ], the Supreme Court after surveying decision on the aspect, laid down guidelines directives in paragraph 12 of the judgment, “12. It is not possible to postulate all situations of hardships, 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 decision referred to hereinabove, 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, or the order of recovery. (iii) Recovery from the 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 employer, 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.” 5.2.1 In Rafik Masih (White Washer) (supra), the Supreme Court reaffirmed the position that where the employer had committed an error of paying to the employee more than what was due, in absence of misrepresentation or fraud at the end of the employee, recovery of such amount would be harsh and inequitable. 5.3 Emphasizing that such action would be harsh and iniquitous, it was observed having examined thus, “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 employer's 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. … ...” (Para 7) 5.3.1 It was further observed that, “... 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 employee's right would outbalance, and therefore eclipse, the right of the employer to recover. … ...” (Para 8) 6. The relief against the recovery is essentially a relief in equity. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. … ...” (Para 8) 6. The relief against the recovery is essentially a relief in equity. The amount paid to an employee in excess of his salary or other entitlement such as increment or higher grade pay scale would be ordered to be not recovered if such payment was not the result of employee's fault. Recovery would not be justified if the benefit availed was not upon a representation of the employee or government servant or was not the result of any fraudulent conduct on his part. 6.1 The doctrine of equality is a dynamic and evolving concept with many dimensions. In Articles 14 to 16 of the Constitution, the doctrine of equality is embodied. An action of the State or its authority, ordering recovery from an employee, would be in order and would be proper so long as it is not rendered iniquitous. The action of recovery cannot be more unfair, more wrongful, more improper and more unwarranted, than the corresponding conduct of and the entitlement on part of the right of the employer to recover the amount. In other words, where the recovery would have a harsher and arbitrary effect on the employee, it would be impermissible in law. 6.2 The impugned order, when measured with the aforesaid principles, in the present case, the higher pay scale of Rs.5,500-9,000 was granted to the petitioner pursuant to an express order in the year 2002 after the suit instituted by the petitioner was compromised and withdrawn. The competent authority accepted the aforesaid pay scale of trained category to be given to the petitioner; it was granted to him, in the year 1998. The petitioner received the benefit throughout his service until he retired in the year 2014. It is at the fag end when the petitioner was on the eve of retirement, that recovery was sought to be effected and was effected on the ground that what was sanction able was a different pay scale. Asking the Petitioner employee in the year 2013-14 to refund the amount in respect of pay scale which was granted in the year 1998, is virtually to coerce the employee. Asking the Petitioner employee in the year 2013-14 to refund the amount in respect of pay scale which was granted in the year 1998, is virtually to coerce the employee. 6.3 Besides that, recovery was sought for and effected without giving any notice to the petitioner or affording him an opportunity to put forth his case, the intervening long period after which the action was taken, rendered the action to be iniquitous. The petitioner suffered inequity of recovery which partook the violation of doctrine of equality under Article 14 of the Constitution. It was absolute harshness not only to deny the petitioner what was paid to him for long years, but also to recover the amount, when the petitioner had played no role of making any misrepresentation or committing any fault on his part in grant of scale of Rs.5,500-9,000. Sufferance of the petitioner by virtue of action of recovery on part of the respondents was more unfair and more wrongful, therefore unwarranted, than the corresponding right of the employer to recover the amount. 6.4 When the petitioner has worked for the period in question, the act on part of the respondents to recover the amount cannot be but has to be discountenanced and disallowed. It would be iniquitous to deny an employee who is not responsible, the scale of salary which was granted since as back in the year 1998 and continued to be given till his retirement in 2012. The recovery could not be justified in law and has to be set aside in toto, availing consequential benefits to the petitioner. When the recovery against the petitioner is adjudged as bad in law, the recovered amount must revert back to the petitioner. 7. For the foregoing reasons and discussion, the petition deserves to be allowed and the same is allowed with the following directions, (i) Order dated 04.04.2013 passed by Taluka Development Officer, Savarkundalathe third respondent is hereby set aside with all actions on part of the authorities attendant to it, and with all its consequences. (ii) The action of the respondent authorities in effecting recovery from the pension of the petitioner is held to be bad in law and not sustainable, and stands to have been setatnaught. (iii) The petitioner’s pension shall be fixed in the scale of Rs.5500-9000 with corresponding revision therein and the pension shall be regularly paid on such basis. (ii) The action of the respondent authorities in effecting recovery from the pension of the petitioner is held to be bad in law and not sustainable, and stands to have been setatnaught. (iii) The petitioner’s pension shall be fixed in the scale of Rs.5500-9000 with corresponding revision therein and the pension shall be regularly paid on such basis. (iv) Since the recovery is held bad in law, the consequences shall follow so as to entitle the petitioner to be paid the said recovery amount of Rs.5,41,865/-which shall be appropriately paid back to the petitioner within ten weeks from the date of receipt of this order. (v) If the aforesaid stipulated time limit is not observed, the petitioner shall be entitled to interest at the rate of 9% on the recovered amount calculable from the date of the present order. Direct service is permitted. (Petition allowed)