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2022 DIGILAW 819 (GUJ)

Saralaben Rashmikant Dholkiya v. State Of Gujarat

2022-06-29

BIREN VAISHNAV

body2022
ORDER : 1. Heard Mr. Shivang Shah, learned advocate appearing for the petitioner and Mr. Utkarsh Sharma, learned AGP on behalf of the respondent-State. Though served none appears for the respondent no. 3 Nagarpalika. 2. Rule. Mr. Sharma, learned Assistant Government Pleader for the respondent - State waives service of notice of Rule. 3. On 21.09.2021, this Court has passed the following order: “Heard learned Advocate Ms. Dhara M. Shah for the petitioner and learned AGP Mr. Uttkarsh Sharma for the respondent No.1. By way of this petition, the petitioner raises a grievance that while the petitioner had retired in the month of May, 2018, the respondents had deducted an amount of Rs. 3,24,000/- from her retiral dues on the ground that the same had been overpaid to the present petitioner. Learned Advocate Ms. Shah would submit that undoubtedly the entire amount has been recovered, but at the same time the fact of the present petitioner being a Class-IV employee could not have been ignored. Furthermore, learned Advocate would submit that by the time the recovery had been initiated, the respondents were under an obligation not to recover such amount from the petitioner as per the law laid down by the Hon'ble Supreme Court in case of State of Punjab vs. Rafiq Masih reported in AIR 2015 SC 696 . Learned Advocate would further draw the attention of this Court to an order dated 08.03.2019 in Special Civil Application No.20047 of 2018, in case of similarly situated employee, where the recovery had been set aside by this Court. Having regard to the submissions made by learned Advocate Ms. Shah, issue Notice returnable on 26.10.2021. Direct service is permitted.” 4. The petitioner challenges the order dated 31.05.2018 by which the respondent Nagarpalika has sought recovery from the petitioner on the ground that the amount of Dearness Allowance (DA) of the 5th Pay Commission has been paid higher than the actual amount. The same mistake was brought to their notice at the time of audit and the report was placed by the concerned officer and, therefore, the order dated 31.05.2018 is passed. 5. Learned advocate Mr. Shivang Shah for the petitioner has submitted that the respondent-Nagarpalika has passed the impugned orders beyond its jurisdiction and without giving any opportunity of hearing to the petitioner. 5. Learned advocate Mr. Shivang Shah for the petitioner has submitted that the respondent-Nagarpalika has passed the impugned orders beyond its jurisdiction and without giving any opportunity of hearing to the petitioner. He has submitted that in a catena of the decisions, the Apex Court has categorically stated that if there is no mistake of an employee and he receives the excess amount, then it is not recoverable. He has further submitted that before passing the impugned order, the Chief Officer has not even consulted the higher authority. He has submitted that there was no mistake while calculating the DA amount. 5.1 Mr. Shah has submitted that similar issue has already been decided by this court in various petitions. He has placed reliance on the decision of this court rendered in Special Civil Application No. 8437 of 2019 and allied matters on 04.05.2022 as well as the decision of a co-ordinate bench of this court rendered in Special Civil Application No. 20047 of 2018 on 08.03.2019. He has submitted that the authority has failed to appreciate the legal position as enunciated by the Apex Court in the case of State of Punjab Vs. Rafiq Masih, AIR 2015 SC 696 concerning the recovery of excess payment even if made, which enumerated that it is not open for the employer to recover any excess amount paid if the employee is superannuating within a period of six(6) months or has already superannuated. The authority by any means cannot compel the petitioners to sign any such document or undertaking, which is contrary to the settled legal position by creating undue duress on the employee and if any such undertaking even if signed cannot be enforced as the same is impermissible and illegal. It is further submitted that such principle of waiver would hence, be not applicable in such circumstances, where the employee has been compelled to act against the law and any such waiver cannot be used against the employee. 6. Noteworthy it is, that in case of similarly situated employees this court has considered the decision of the Apex Court in the case of Rafiq Masih (supra) and held that the action of the authorities of recovering such amounts is illegal and was accordingly set aside. This court in Special Civil Application No. 8437 of 2019 and allied matters on 04.05.2022 has held as under: “8. This court in Special Civil Application No. 8437 of 2019 and allied matters on 04.05.2022 has held as under: “8. It is not in dispute that the petitioners are due for retirement or have retired. By the resolution dated 30.10.2018, the respondent Nagarpalika decided to recover the amount of DA, which is granted to the petitioners. While by the resolution dated 18.07.2016, the State Government has granted the DA to the employee pursuant to which the petitioner was also paid. The said resolution is still in existence. Thus, the respondent- Nagarpalika cannot recover the amount of disciplinary authority, when the Resolution dated 18.07.2006 is still in existence. 9. The Apex Court in the case of State of Punjab (supra) has laid down the parameters of recovery of the employees with the following observations: “12. 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-II 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.” 10. The case of the petitioner would be covered in the exception one, wherein the recovery from the Class-III and Class-IV employees is prohibited and it is not in dispute that the petitioners are Class-IV/III employees. 11. The case of the petitioner would be covered in the exception one, wherein the recovery from the Class-III and Class-IV employees is prohibited and it is not in dispute that the petitioners are Class-IV/III employees. 11. Similarly, the case of the applicants of the Civil Applications is covered by a decision of this court rendered in Special Civil Application No. 420 of 2020 on 20.02.2020. The order reads as under: “1. This is a Class-ic case of blatant disregard to the order passed by this Court. A retired employee has been made to approach this Court once again under the pretext that the earlier recovery was in pursuance of audit objection of the year 2016-17 and now the same recovery is sought because of fresh recovery for the audit objection of the year 2017-18. 2. This Court in the earlier petition being Special Civil Application No. 20047 of 2018 by a judgement and order dated 08.03.2019 set aside the order of recovery of Dearness Allowance and held as under: “8. Heard the learned advocates for the respective parties at length. 9. It is not in dispute that the petitioner is due for retirement within six(6) months. By the resolution dated 30.10.2018, the respondent Nagarpalika decided to recover the amount of DA, which is granted to the petitioner. While by the resolution dated 18.07.2016, the State Government has granted the DA to the employee pursuant to which the petitioner was also paid. The said resolution is still in existence. Thus, the respondent Nagarpalika cannot recover the amount of disciplinary authority, when the Resolution dated 18.07.2006 is still in existence. 9.1 So far as the reliance placed on the undertaking dated 03.01.2019 of the petitioner is concerned, the same has been filed by the petitioner after the stay order granted by this Court on 21.12.2018. Thus, it appears that the petitioner was forced to make such undertaking de hors the interim relief granted by this Court on 21.12.2018 staying the recovery from the salary. Under the circumstances, the aforesaid undertaking, which is in contrast to the order dated 21.12.2018 passed by this Court, cannot be considered. 10. The Apex Court in the case of State of Punjab (supra) has laid down the parameters of recovery of the employees with the following observations: “12. Under the circumstances, the aforesaid undertaking, which is in contrast to the order dated 21.12.2018 passed by this Court, cannot be considered. 10. The Apex Court in the case of State of Punjab (supra) has laid down the parameters of recovery of the employees with the following observations: “12. 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-II 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.” 10.1 The case of the petitioner would be covered in the exception one, wherein the recovery from the Class-III and Class-IV employees is prohibited and it is not in dispute that the petitioner is a Class-IV employee. 10. Under the circumstances, the present petition is allowed. The impugned action of the respondent authority of recovering the amount of DA is hereby quashed and set aside. As a consequence, the impugned orders are also hereby quashed and set aside. If any recovery is made pursuant to the impugned order(s) or undertaking of the petitioner, the same shall be refunded accordingly. Rule is made absolute.” 3. However, by the order impugned in the present petition on 23.09.2019 once again the amount of D.A is sought to be recovered. 4. This Court had passed an order on 09.01.2020 which reads as under: “1. Rule is made absolute.” 3. However, by the order impugned in the present petition on 23.09.2019 once again the amount of D.A is sought to be recovered. 4. This Court had passed an order on 09.01.2020 which reads as under: “1. In this petition, a retired employee of the respondent – Nagarpalika, Kutch @ Bhuj, has challenged the order dated 23.08.2019 by which the Nagarpalika has recovered the amount of Rs.1,91,315/- as dues towards Dearness Allowance (DA). 2. Mr.Shah, learned counsel for the petitioner has drawn attention of this Court to an order dated 08.03.2019 passed in Special Civil Application No.20047 of 2018 in case of the petitioner, wherein, the petitioner had challenged the order dated 30.10.2018, by which, the amount of Dearness Allowance (DA) was sought to be recovered. The coordinate bench of this Court, by the aforesaid oral order, specifically held that in view of the decision of the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in AIR 2015 SC 696 , the recovery was unwarranted. The Court, therefore, set aside the order of recovery. 3. Despite this position, at that point of time, the amount was recovered from salary as the petitioner was not retired. However, after the retirement of the petitioner, the amount is now recovered from the terminal benefits. 4. Issue NOTICE, returnable on 20.2.2020. 5. On the returnable date, Chief Officer of respondent No.3 Municipality shall remain personally present before this Court as to on what basis the recovery has been made despite the order dated 8.3.2019 passed by the coordinate Bench of this Court. Direct Service is permitted.” 5. Pursuant to the order so passed, Mr. Nitin Nanjibhai Bodat – the Chief Officer of the respondent Municipality is present before this Court. An affidavit-in-reply has been filed. 6. The sole purpose of a successive recovery as mentioned in the reply is on the pretext that, the earlier recovery made and set aside was pursuant to a Local Fund Audit objection in the year 2016-17. Now since on 30.05.2019, the Local Fund Auditor has audited for the year 2017-18 once again by the impugned order, the D.A benefits have been recovered. 7. What is submitted by Mr. Now since on 30.05.2019, the Local Fund Auditor has audited for the year 2017-18 once again by the impugned order, the D.A benefits have been recovered. 7. What is submitted by Mr. Mankad through the affidavit-in-reply is that this is in compliance of the directions of the Local Fund Audit Office as per Section 9 of the Gujarat Local Fund Audit Act, 1963. Once by a decision of this Court, in principle relying on the decision of the Apex Court, the recovery of DA was set aside, it was not open for the respondent Municipality to pass a fresh order of recovery from a retired employee under the pretext of a fresh audit objection. 8. Accordingly, the order of recovery dated 23.09.2019 is set aside. The petition is allowed. The respondent Municipality shall pay cost quantified at Rs.25,000/- to the petitioner within a period of two weeks from today. It is clarified that failure to pay such amount on the part of the respondent Municipality shall entail contempt on the part of the respondent under the Contempt of Courts Act. Direct service is permitted.” 13. Under the circumstances, the present petitions and Civil Applications are allowed. The impugned action of the respondent authority of recovering the amount of DA is hereby quashed and set aside. As a consequence, the impugned orders are also hereby quashed and set aside. If any recovery is made pursuant to the impugned order(s) or undertaking of the petitioners, the same shall be refunded accordingly within a period of four weeks from the date of receipt of the writ of the order of this court. Rule is made absolute. Direct service is permitted.” 6.1 Similarly in Special Civil Application No. 20047 of 2018 on 08.03.2019, the co-ordinate bench of this court has held as under: “9. It is not in dispute that the petitioner is due for retirement within six(6) months. By the resolution dated 30.10.2018, the respondent Nagarpalika decided to recover the amount of DA, which is granted to the petitioner. While by the resolution dated 18.07.2016, the State Government has granted the DA to the employee pursuant to which the petitioner was also paid. The said resolution is still in existence. Thus, the respondent Nagarpalika cannot recover the amount of disciplinary authority, when the Resolution dated 18.07.2006 is still in existence. While by the resolution dated 18.07.2016, the State Government has granted the DA to the employee pursuant to which the petitioner was also paid. The said resolution is still in existence. Thus, the respondent Nagarpalika cannot recover the amount of disciplinary authority, when the Resolution dated 18.07.2006 is still in existence. 9.1 So far as the reliance placed on the undertaking dated 03.01.2019 of the petitioner is concerned, the same has been filed by the petitioner after the stay order granted by this Court on 21.12.2018. Thus, it appears that the petitioner was forced to make such undertaking de hors the interim relief granted by this Court on 21.12.2018 staying the recovery from the salary. Under the circumstances, the aforesaid undertaking, which is in contrast to the order dated 21.12.2018 passed by this Court, cannot be considered. 10. The Apex Court in the case of State of Punjab (supra) has laid down the parameters of recovery of the employees with the following observations: “12. 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-II 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. (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.” 10.1 The case of the petitioner would be covered in the exception one, wherein the recovery from the Class-III and Class-IV employees is prohibited and it is not in dispute that the petitioner is a Class-IV employee. 10. Under the circumstances, the present petition is allowed. The impugned action of the respondent authority of recovering the amount of DA is hereby quashed and set aside. As a consequence, the impugned orders are also hereby quashed and set aside. If any recovery is made pursuant to the impugned order(s) or undertaking of the petitioner, the same shall be refunded accordingly. Rule is made absolute.” 7. In view of the above, the petitioner is required to be granted similar benefits as granted to the petitioners of the abovementioned petitions. 8. Accordingly, the impugned action of the respondent authority of recovering the amount of DA is hereby quashed and set aside. As a consequence, the impugned order is also hereby quashed and set aside. The respondent Nagarpalika is directed that the recovery made pursuant to the impugned order(s) or undertaking of the petitioner, shall be refunded to the petitioner with 6% interest per annum within a period of six weeks from the date of receipt of the writ of the order of this court. Rule is made absolute. Direct service is permitted.