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Gujarat High Court · body

2019 DIGILAW 926 (GUJ)

Dhyabhai Sunderbhai Parmar v. State of Gujarat

2019-10-16

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. In the present petition, the petitioner is praying for quashing and setting aside the order dated 15.05.2015 passed by the respondent No. 2 directing to recover an amount of Rs. 93,528/- from the pension of the petitioner, who is retired on 31.03.2005. Thus, the aforesaid recovery order has been passed after a period of ten (10) years putting the petitioner, who is a senior citizen in legal jeopardy, constraining him to file this writ petition that too without giving any opportunity of hearing to him. 2. Learned advocate Mr. Jani for the petitioner has submitted that such recovery is impermissible in view of the law enunciated by the Apex Court in case of State of Punjab Vs. Rafiq Masih (White Washer), 2015(4) SCC 334 as well as the decision of the Division Bench of this Court dated 17.07.2019 passed in Letters Patent Appeal No. 1400 of 2019. 2.1. He has submitted that the impugned action is also in violation of principles of natural justice since the respondent authorities has straightway affected the recovery, without giving any notice to the petitioner, who is retired ten (10) years before. He has submitted that already an amount of Rs. 49,000/- was recovered and remaining amount was unrecovered due to the interim order passed by this court. He has submitted that thus, the amount of Rs. 49,000/- is required to be refunded to the petitioner with interest @ 18%, as the same is illegally recovered. 3. Learned Assistant Government Pleader Mr. Ishan Joshi has submitted that the recovery was affected due to the re-fixation of the pay scale of the petitioner from 1992. However, he is unable to dispute that the aforesaid order is passed without affording opportunity of hearing to the petitioner. 4. Heard the learned advocates for the respective parties. 5. This is a classic case of abuse of power by the respondent authority by affecting recovery from the retired person, after ten (10) years of his retirement and straightway reducing his pension by ordering recovery without giving any opportunity of hearing to him. The respondents have taken shelter under the undertaking given by the petitioner at the time of fixation of pay-scale when the petitioner was serving as well as the undertaking given by the petitioner and his son on 17.08.2012. 6. The respondents have taken shelter under the undertaking given by the petitioner at the time of fixation of pay-scale when the petitioner was serving as well as the undertaking given by the petitioner and his son on 17.08.2012. 6. At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgment dated 17.07.2019 passed in Letters Patent Appeal No. 1400 of 2019. The Division Bench after considering the judgment of the Supreme Court in the case of Rafiq Masih (supra) SCC 334 as well as the judgment cited by the learned Assistant Government Pleader in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, (2016) 14 SCC 267 , while dealing with the similar issue has observed thus: "5. Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read 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 hereinabove, we may, as a ready reference, summarise the following new 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 case 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; (2) In any other case, where the court arrives at the conclusion, that recovery if made from he 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." (Para 18)" (v) What is important to be seen is that recovery that is ordered in the case of Class-II and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. In the present case, admittedly, the respondent-employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal, which has assigned just reasons to quash and set aside the order of recovery of dues of Rs. 85,927/- by considering the Government Resolution dated 16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs. 5000-8000 instead of Rs. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs. 5000-8000 instead of Rs. 4500-7000, the fact remains that earlier he was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee, misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs. 5000-8000 and was given salary accordingly. We are inclined to accept such submission and do not pass any order in that regard." 7. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis-à-vis. incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The stand taken by the respondents that the provision of Rule 28 of the Pay Rules, 2002 do not apply in the case of the grant of higher pay scale is misconceived since the benefits of higher pay scale is conferred to the employees in lieu of promotion when they get stagnated in service. Furthermore, an undertaking given by an employee cannot be used against him in light of the statutory provision. Such an undertaking cannot dilute the mandate of Rule 28 which bars recovery if there is erroneous fixation of pay by the state authorities. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee. 8. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee. 8. Considering the aforesaid analysis, in the present case, the impugned order dated 15.05.2015 ordering recovery from the pension of the petitioner has been passed without giving any opportunity of hearing to the petitioner and in violation of principles of natural justice. 9. In this view of the matter, the present writ petition succeeds. The impugned order dated 15.05.2015 passed by the respondent No. 2 is hereby quashed and set aside. The respondent-State is hereby directed to refund the amount of Rs. 49,000/- to the petitioner along with interest @ 12% from the date of such recovery. Such amount shall be refunded within a period of one (1) month and shall be deposited in the pension account of the petitioner. Rule is made absolute.