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Uttarakhand High Court · body

2019 DIGILAW 72 (UTT)

Jiwan Chandra Sanwal v. State of Uttarakhand

2019-02-13

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. The petitioner has filed a review petition seeking review of the judgment dated 14.05.2018. The same is accompanied with a delay condonation application where Registry has reported that there happens to be a delay of 212 days. The delay condonation application is not being seriously opposed by the Standing Counsel and rather parties agreed to address themselves on merits of the review. Consequently, the delay condonation application is allowed and the delay which has chanced in filing the review application would stand condoned. 2. With the consent of the parties the review application itself is being considered on merits. The petitioner had filed a writ petition praying for the following reliefs: “(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned Govt. order dated 29.06.2006 (Annexure No. 1 to the writ petition) passed by respondent no…. (ii) Issue a writ, order or direction in the nature of certiorari quashing the order passed by the respondent by which order deduction from the salary of petitioner (annexure no. 6 to the writ petition). (iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund a sum of Rs.57,624/- illegally recovered from the salary of the petitioner. (iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to fix the pay scale Rs.1350-2200 from 01.11.1989 and pay all the arrears of salary with all benefit from that date. (v) Issue any suitable order or direction as this Hon’ble Court may deem fit and proper in the circumstance of the case. (vi) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the petitioner a sum of Rs.3,13,000/- approximately which the loss suffered by the petitioner on account of illegal reduction of his pay scale. (vii) Award the cost of the writ petition to the petitioner.” 3. This writ petition after exchange of pleadings was considered by the Coordinate Bench of this Court and was ultimately allowed by the judgment dated 14.05.2018, which is being sought to be reviewed. (vii) Award the cost of the writ petition to the petitioner.” 3. This writ petition after exchange of pleadings was considered by the Coordinate Bench of this Court and was ultimately allowed by the judgment dated 14.05.2018, which is being sought to be reviewed. As a matter of fact, by the judgment dated 14.05.2018 the Coordinate Bench of this Court has allowed the writ petition in favour of the petitioner and has set aside the order and there was a direction to refund the amount recovered from the petitioner within one month from the date of the order itself. The observation as made by the learned Single Judge while ultimately deciding the writ petition on 14.05.2018 is quoted hereunder: “Mr. J.C. Belwal, Advocate, for the petitioner. Mr. BPS Parihar, S.C., for the State. Petitioner was granted the benefit of higher pay scale of Rs.1350-2200. However, the same has been reduced to Rs.1200/-. The fact of the matter is that the petitioner was not heard before issuance of the impugned order. This order has civil/evil consequences. Petitioner was required to be heard before issuance of impugned order. Petitioner belongs to lowest strata of the family and his case was required to be considered sympathetically by the respondent/State. Their Lordships of the Hon’ble Supreme Court in (2015) 4 Supreme Court Cases 334, in the case of State of Punjab Vs. Rafiq Masih, in paragraph nos.10 and 18, have held as under:- “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. 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 Article142 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 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 the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of 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 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.” Petitioner has neither misrepresented nor misled the authorities when the higher pay was granted to him. Petitioner has utilized the amount by treating the same as his own legitimate money. Accordingly, the writ petition is allowed. Order, under challenge, qua the petitioner is quashed and set aside. The respondents are directed to refund the amount recovered from the petitioner within one month from today. Petitioner has utilized the amount by treating the same as his own legitimate money. Accordingly, the writ petition is allowed. Order, under challenge, qua the petitioner is quashed and set aside. The respondents are directed to refund the amount recovered from the petitioner within one month from today. In normal circumstances, the Court would have granted an opportunity to the respondents to consider the matter in accordance with law, but since the petitioner has retired, the matter is ordered to be closed. All pending applications stand disposed of accordingly.” 4. The review has been sought by the petitioner whose writ petition stood allowed on the premise that out of the reliefs which have been sought by him in the writ petition two reliefs, i.e., relief no. IV and relief no. VI was not considered nor it was decided by the learned Single Judge. Hence, he has preferred the present review. Though principally the provisions of the Code of Civil Procedure is not applicable in its entirety but wider principles of CPC would obviously still be applied as per their dictum of the Hon’ble Apex Court as well as the provisions as contained under Part-9 of the Code of Civil Procedure. Section 114, which deals with the provisions of the review, reads as under: “114. Review.- Subject as aforesaid, any person considering himself aggrieved- (a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) By a decree or order from which no appeal is allowed by this Code, or (C) By a decision on a reference from a court of small causes, which passed the decree or made the order, and the court may make such order thereon as it thinks fit, may apply for a review of judgment to the court.” 5. The review can be preferred against an “order” means an order which has been passed on merits by the Courts. It is settled that if some of the reliefs have not been granted by the Court and the judgment is silent on that it would mean to be the denial of the relief claimed for, which has not been granted. The review can be preferred against an “order” means an order which has been passed on merits by the Courts. It is settled that if some of the reliefs have not been granted by the Court and the judgment is silent on that it would mean to be the denial of the relief claimed for, which has not been granted. Non-granting of relief by the Court will not fall to be within the purview of the implications contained under Section 114 of Code of Civil Procedure because for review there has to be an order on the issue. At the most if the petitioner was aggrieved against the non-granting of a certain relief he had his remedies available to him under law. Hence, on a conscious reading of Section-114 this Court is of the view that if a relief is not granted by the Court that cannot be a subject matter of review because the review would lie only to rescrutinize an apparent error committed by Court in the judgment, which has already been passed, and the said provisions cannot be utilized to review of an order, wherein the relief has not been granted by the Court, as there is no adjudication because of the denial of the reliefs as sought for. Hence, this review would not be tenable. Accordingly, the same is dismissed without prejudicing the rights of the review applicant to seek his appropriate remedy available to him under law. 6. There would be no order as to cost.