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2024 DIGILAW 1170 (GUJ)

Dilip C Dani v. Union Of India

2024-05-09

PRANAV TRIVEDI

body2024
JUDGMENT : 1. Heard Mr. Sahil M. Shah, learned advocate appearing for the petitioner and Mr. D.M. Devnani, learned advocate for Nanavati Associates for the respondent. 2. The petition is preferred by praying for the following reliefs: “15(A) Your Lordships may be pleased to issue a writ of certiorari or in the nature of certiorari quashing and setting aside the wrongful recovery of Rs.42698.10/- made on 27.12.2010 and further be pleased to quash and set aside the communication dated 04.01.2011 issued by Assistant General Manager, Bank of India and 15.11.2013 issued by Deputy Zonal Manager, Bank of India, to the Petitioner; (B) Your Lordship may be pleased to issue a writ of mandamus or in the nature of mandamus directing the concerned Respondents to consider the fitment to be Rs.15,380/- as on 01.04.2002, as per the communication dated 10.06.2002 and further be pleased to direct the concerned Respondents to act in accordance with the communication dated 10.06.2002 issued by Personnel Department, Ahmedabad Zone, Bank of India and to grant all the arrears along with interest and other consequential benefits thereto; (C) Your Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus directing the concerned Respondents to refund the amount of Rs.42698.10/- to the Petitioner herein along with interest at the rate of 9 percent per anumn till the date of realisation; (D) Pending admission, final hearing and disposal of the petition, Your Lordships may be pleased to direct the Respondents to consider the fitment to be Rs.15,380/- as on 01.04.2002 as per the order dated 10.06.2002 and to grant the consequential benefits thereto; (E) Ad-interim reliefs in terms of para (D) may kindly be granted; (F) Pass such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted;” 3. The brief facts are as follows: 3.1. The petitioner joined the service of the respondent - Bank on 19.08.1974 and thereafter was promoted to Junior Management Grade Service–I on 15.07.1982. He was thereafter promoted to Middle Management Grade Service–II on 03.03.1993. It is the case of the petitioner that he received communication from the Chief Manager (Human Resources) of respondent on 01.04.2002, pursuant to which, he was promoted from Middle Management Scale–II to Middle Management Scale–III. The communication further informed the petitioner that his basic pay would be Rs.15,380/-. 3.2. He was thereafter promoted to Middle Management Grade Service–II on 03.03.1993. It is the case of the petitioner that he received communication from the Chief Manager (Human Resources) of respondent on 01.04.2002, pursuant to which, he was promoted from Middle Management Scale–II to Middle Management Scale–III. The communication further informed the petitioner that his basic pay would be Rs.15,380/-. 3.2. It is the case of the petitioner that despite no audit query or remark/observation raised on the fitment salary payments, suddenly almost after a period of 8 years, a letter dated 04.01.2011 was issued stating that an amount of Rs.42,698.10/- was inadvertently paid by the respondent to the petitioner by way of an increment and was recovered in the salary process of the year 2010, without providing any opportunity of being heard. It is this communication, dated 04.01.2011, which is impugned in the present petition. Further, it was after this recovery that an explanation was sought for from the petitioner and it was informed that the stagnation increment for the petitioner was due on 01.08.2003 and subsequently, on 01.04.2002, fitment was erroneously paid at Rs.15,380/- comprising of one stagnation increment. According to the respondent, such stagnation increment was given inadvertently, as there was no availability of the increment in the time scale of pay, resulting in the 1st stagnation increment. Pursuant to the communication dated 04.01.2011, the petitioner also conceded on 07.01.2011 that there was a mistake in fitment determination. Therefore, on 07.01.2011, petitioner accepted the contents of communication dated 04.01.2011 and subsequently, the petitioner chose to retire voluntarily on 19.04.2011. Pursuant to communication dated 04.01.2011, petitioner received another communication on 03.01.2013, whereby the Deputy Zonal Manager, Bank of India, inter alia informed the petitioner that the Head Office had concurred with the views of the Zonal Office regarding revision of basic pay up to Rs.15,000/- and that the matter was referred to Head Office for further clarification. 3.3. Subsequently, on 15.07.2013, the petitioner made a further representation before the Chief Managing Director of Bank of India at Mumbai vide letter dated 15.07.2013 requesting intervention against arbitrary revision of fitment. However, the higher authorities of the respondent did not agree with the reasons given by the petitioner and therefore, the claim of petitioner for re-consideration of revision of fitment scale was rejected. However, the higher authorities of the respondent did not agree with the reasons given by the petitioner and therefore, the claim of petitioner for re-consideration of revision of fitment scale was rejected. Therefore, the communications dated 04.01.2011 and 15.11.2013 are impugned in the present petition for quashing and setting aside the wrongful recovery made in the year 27.12.2010 of Rs.42,698/10/-. 4. Mr. Sahil M. Shah, learned advocate appearing for the petitioner has drawn the attention of this Court through the documents. He has particularly relied on the Fitment Formula on promotion of higher scales of pay adopted by respondent - Bank with effect from 01.07.1989. He has further relied on Clauses 1(b), 2 and 4, which read as under:- “1.(b) If the stagnation at the top of the scale is for a year or more but for less than 2 years, the officer would be drawing a professional qualification allowance of Rs.100/- p.m. In such cases, if he has passed both exams of CAIIB, then one increment should be reduced in the existing scale. If, however, such Professional Qualification Allowing of Rs.100/- is for CAIIB Part I only, then the increment paid be reduced from the existing scale. 2. Thereafter, his increment shall be notionally added in timely scale from which the officer is being promoted and his pay shall be fixed at the appropriate stage in the new scale which to equal to or just above it. Where in the pre-promoted scale, the officer has already reached the maximum, the notional increment to be added would be equal to the last increment drawn by him in the scale. If, however no increments are available in the scale or only one increment is available in the scale, the officer shall be eligible for professional qualification allowance in lieu of much increment(s). (4) Normally where an officer is promoted from one scale to another, the date of his increment shall be the anniversary date in the previous scale of pay. Where however, an officer had reached the maximum in the previous scale of pay or on promotion gets an increment in the basic pay equivalent to two or more increments till the previous scale of pay, the date of increment shall be time anniversary date of promotion. Where however, an officer had reached the maximum in the previous scale of pay or on promotion gets an increment in the basic pay equivalent to two or more increments till the previous scale of pay, the date of increment shall be time anniversary date of promotion. However, if the basic pay after reduction of CAIIB increments is not at the next time, then the date of increment shall be the anniversary of last increment. Prolonged further that if an officer is promoted to higher scale after reaching the maximum in the previous scale of pay but before drawing stagnation Increment, the date of last increment in the higher scale shall be the anniversary date of promotion or due date of stagnation increment in the previous scale whichever is earlier.” 4.1. Mr. Shah, learned advocate has further contended that if any officer is promoted from one scale to another, the date of his increment shall be the anniversary date in the previous scale of pay and when an officer has reached the maximum in the previous scale of pay or on promotion gets an increment in the basic pay equivalent to two or more increments till the previous scale of pay then the date of increment shall be the anniversary date of promotion. Mr. Shah, learned advocate has further relied on the note of the Fitment Formula and inferred that in the case of officer in Scales I and II promoted after moving into the higher Scales II and III because of stagnation movement, the notional increment to be added shall be the increment drawn by him on the date of promotion and next and subsequent increment shall be on the anniversary date. In the instant case, there was no stagnation. 4.2. For the such submission, he relied on the Salary Revision for Officers – Combined Fitment Chart reproduced by the respondent. According to the petitioner, in Scale–II, the last basic pay was Rs.15330/-, whereas the last basic pay in Grade-II drawn by the petitioner was Rs.15,000/-. Even in Scale-III the last basic pay was of Rs.15,760/-. Therefore, there was no stagnation. Therefore, in the humble submission of Mr. Shah, learned advocate, the respondent authority has erred in calculating the basic pay and the initial salary as drawn by the petitioner was just and correct. Even in Scale-III the last basic pay was of Rs.15,760/-. Therefore, there was no stagnation. Therefore, in the humble submission of Mr. Shah, learned advocate, the respondent authority has erred in calculating the basic pay and the initial salary as drawn by the petitioner was just and correct. On the aspect of letter dated 07.01.2011, which reflects the acceptance by the petitioner, it was submitted that such communication was in duress as the petitioner was taking voluntarily retirement and the petitioner did not want any issues with such retirement. It was further submitted that it was out of sheer duress that petitioner has accepted and conceded by way of communication dated 07.01.2002. It was further submitted that the petitioner would not have an issue with regard to a meager amount of recovery of Rs.40,000/- after retirement which was already done. However, regarding the principles of recovery, the petitioner has challenged the communication dated 04.01.2011. In wake of such submissions, Mr. Shah, learned advocate has urged to allow the present petition. 5. Per contra, Mr. D. M. Devnani, learned advocate for Nanavati Associates for the respondent has vehemently objected to the submissions made by Mr. Shah, learned advocate for the petitioner. Relying on the affidavit, Mr. Devnani, learned advocate has contended that the petitioner has challenged the communication of the years 2011 and 2013 after a period of 4 years from his representation to the bank. He has submitted that the respondent - Bank had fixed his fitment on promotion to Scale-III at a basic pay of Rs.15,380/-, which was done erroneously, resulting in the 1st stagnation increment released before 3 years. It was submitted that such mistake on behalf of the authorities of the Bank had occurred unintentionally, as the petitioner was eligible for stagnation increment only on 01.08.2006. On such basis, the respondent had fully recovered the excess payment from the petitioner. It was also submitted that on the basis of the clear position taken by the petitioner himself that an error had occurred in releasing 1st stagnation increment before 3 years, the petition would not be maintainable as there is a clear cut acceptance by the petitioner on this issue itself. 5.1. It was also submitted by Mr. It was also submitted that on the basis of the clear position taken by the petitioner himself that an error had occurred in releasing 1st stagnation increment before 3 years, the petition would not be maintainable as there is a clear cut acceptance by the petitioner on this issue itself. 5.1. It was also submitted by Mr. Devnani, learned advocate that not going by the mathematics of the formula, but even accepting that there was an error on the part of the Bank, the Bank was justified in recovering the amount. For that, Mr. Devnani, learned advocate has placed reliance in the case of Chandi Prasad Uniyal and others versus State of Uttarakhand and others reported in (2012) 8 SCC 417 . Placing reliance on the decision of Chandi Prasad Uniyal (supra), Mr. Devnani, learned advocate has submitted that for recovery of public money, there are few exceptions. Since the conditions of fitment payment are binding on the petitioner and they are not following the exception circumstances for non- recovery, the recovery made by the respondent from the petitioner is just and proper. On the basis of such submission, Mr. Devnani, learned advocate has requested to reject the petition. 6. After hearing both the learned advocates appearing for the respective parties and perusing the material on record, there are primarily two issues to be adjudicated. The first one would be as to whether the petitioner was rightfully given the increment in the year 2002 – 2003 and the second would be as to whether the recovery done by the respondent in the year 2010 was just and proper. To understand the first situation, the fact would be that in the year 2000, the petitioner was in Middle Management Grade Service – II and he had already reached the top scale of Grade – III service. Therefore, when the petitioner was promoted to Grade – III service in the year 2002, then what would be the increment on such promotion. It is case of respondent that petitioner should have been given a basic pay of Rs.15,000/- instead of Rs.15,380/-, as he had reached the maximum of previous (pre-promoted) scale of the Middle Management Grade Service – II (Rs.13,560) on 01.08.1996 itself. Therefore, there were no further annual increments available in Middle Management Grade Service – II. It is case of respondent that petitioner should have been given a basic pay of Rs.15,000/- instead of Rs.15,380/-, as he had reached the maximum of previous (pre-promoted) scale of the Middle Management Grade Service – II (Rs.13,560) on 01.08.1996 itself. Therefore, there were no further annual increments available in Middle Management Grade Service – II. The respondent has not been able to explain as to how the Fitment Formula on 01.07.1989 is not applicable in the case of the petitioner. 7. If the Fitment Formula of 01.07.1989 is perused carefully, it explicitly states that if the officer has already reached the maximum, the notional increment to be added would be equal to the last increment drawn by him. Even assuming that a notional increment cannot be added, even as per Clause-1(c) a professional qualification allowance of Rs.250/- per month has to be added, if the officer is at the ceiling of the scale. Therefore, on the basis of Fitment Formula of 01.07.1989, the contention of respondent that even in the year 2002, during the promotion of the respondent, the basic pay scale of the petitioner had to be Rs.15,000/- is not true. Even if the petitioner had reached the top of the scale, then either he had to be given a notional increment or at least the professional allowance as envisaged by Fitment Formula of 01.07.1989. Therefore, the contention of respondent that the petitioner, at the time of promotion, in the year 2002, should have remained at the same pay scale is not just and proper. 8. The second aspect pertains to the recovery initiated in December, 2010. Before proceeding further, the mode of recovery has to be perused. It is the contention of respondent that he issued a notice in January, 2011 and thereafter, the petitioner himself has accepted that the increment given to him was not as per the Fitment Formula. However, it should be noted that, even before initiating such procedure, almost a month prior i.e. in December, 2010, the respondent had initiated recovery. It has also to be noticed that if it was the case of wrongful increment given to the respondent in the year 2002, then suddenly respondent after a span of 8 years recovers simpliciter an amount of Rs.42,000/-. It has also to be noticed that if it was the case of wrongful increment given to the respondent in the year 2002, then suddenly respondent after a span of 8 years recovers simpliciter an amount of Rs.42,000/-. There is no just explanation on the part of the respondent as to on what basis suddenly after a span of 8 years, respondent recovers such amount from the salary of the petitioner without following any procedure of law. This approach is a pressure tactic on the part of the respondent. After the recovery is done, a notice is given and an explanation is sought for. In the opinion of this Court, strightaway recovery after a period of 8 years without single communication is not a procedure permissible in law. This tactic itself makes the acceptance made by the petitioner vulnerable. It should also be noted that the petitioner was on the verge of voluntary retirement when he had tendered his acceptance letter. Within a period of two months thereafter, he retired from the respondent – bank. Therefore, the acceptance letter after inflicting the recovery and prior to the retirement has its own vulnerability. Therefore, this Court is not inclined to sustain the contention raised by the respondent with regard to acceptance letter of the petitioner dated 07.01.2011. 9. The last aspect of the issue with regard to the contention raised by Mr. Devnani, learned advocate appearing for the respondent is reliance placed on the decision of Hon’ble Apex Court in the case of Chandi Prasad Uniyal and others (supra). It should be noted that subsequently, the Hon’ble Apex Court in the case of State of Punjab & Ors. versus Rafik Masih reported in (2015) 4 SCC 334 has categorically deprecated the practice of recovery from an employee. It is true that present employee would not fall in the case of Class-III or IV employee. However, the relevant aspect for consideration is para 12 of the said judgment and the same is reproduced hereinbelow: “12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 , wherein this Court recorded the following observation in paragraph 58: "58. However, the relevant aspect for consideration is para 12 of the said judgment and the same is reproduced hereinbelow: “12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 , wherein this Court recorded the following observation in paragraph 58: "58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 , Union of India v. M. Bhaskar, (1996) 4 SCC 416 , V. Ganga Ram v. Director, (1997) 6 SCC 139 , Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709 , Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492 , Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99 ." (emphasis supplied) 10. In the instant case, the respondent initiated recovery within a period of 1 year from the date of petitioner’s retirement but almost after 8 years after so called wrongful payment. Therefore, the reliance placed on the case of Chandi Prasad Uniyal and others (supra) would not be helpful to the respondent. Even otherwise, in humble opinion of this Court, the payment was not wrongful payment but just entitlement. 11. With the above conclusion, this Court is of the opinion that respondent was unjustified in inflicting recovery to the tune of Rs.42,380/- from the petitioner. 12. In view of the above, the petition succeeds and accordingly, petition is allowed. The respondents are directed to refund the amount of Rs.42,698.10/- to the petitioner within a period of 4 weeks from the date of passing of this order. 12. In view of the above, the petition succeeds and accordingly, petition is allowed. The respondents are directed to refund the amount of Rs.42,698.10/- to the petitioner within a period of 4 weeks from the date of passing of this order. If the payment of arrears is not made within 4 weeks, then there shall be additional interest at the rate of 9% per annum. Rule is made absolute. No order as to costs.