JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. Admit, learned advocate, Ms.Ashlesh M. Patel waives service of notice of admission. 2. The present appeal emanates from the judgment dated 21.09.2023 passed by the learned Single Judge in the captioned writ petition whereby the learned Single Judge had allowed the writ petition and set aside the recovery of gratuity amount initiated by the respondent – Board. 3. The facts which are not dispute and as recorded by the learned Single Judge are that the respondent employees were serving under the appellant – Corporation and have retired between 01.01.2016 and 28.03.2018 and/or legal heirs of such employees who have expired during such period, are subjected to recovery of amount of excess payment of gratuity by the action of the appellant. It is case of the appellants that such employees were by mistake paid an increased amount of gratuity and when the appellant realized that it was by mistake and on instructions of the State Government, it initiated action for recovery of excess payment of gratuity and such action has been set aside by the learned Single Judge by placing reliance on the judgment of Supreme Court in the case of State of Punjab V/s. Rafiq Masih reported in (2015) 4 SCC 334 . 4. Learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Keyur Gandhi appearing for the appellant has submitted that the directions issued by the Supreme Court in the case of Rafiq Masih (supra) would not apply in the case of respondent employees since they were paid gratuity by mistake after they retired. 5. It is contended that the appellant initially had passed a resolution increasing the maximum limit of retirement gratuity from 10 lakhs to 20 lakhs by placing reliance on Gujarat Civil Services (Pension) Rules, 2002 more particularly Rule 18 and thereafter when it was realized that the employees of the appellant Board are not governed by the pension Rules, but by the Payment of Gratuity Act, 1972, pursuant to which the ceiling limit from Rs.10 lakhs to Rs.20 lakhs was increased which was decided by the appellant to recover the excess amount of gratuity. It is submitted that the Board resolved in its meeting to increase in gratuity vide resolution dated 15.10.2016 to the extent of Rs.20 lakhs and necessary permission was sought from the State Government in this regard. It is submitted that the Board resolved in its meeting to increase in gratuity vide resolution dated 15.10.2016 to the extent of Rs.20 lakhs and necessary permission was sought from the State Government in this regard. The State Government rejected such request for sanction of funds clarifying that the employees of the Board are governed by provisions of Gratuity Act and hence the resolution dated 15.10.2016 passed by the appellant Board resolving to increase the maximum limit of gratuity of Rs.20 lakhs will not apply. It is submitted that the appellant Board requested the State Government to give permission to give the effect of Amendment Act from 2018 in the Payment of Gratuity of Act to increase the maximum limit to Rs.20 lakhs as per the Payment of Gratuity (Amendment) Act, 2018 and thereafter such permission was granted by the State Government. He submitted that thereafter the appellant Board issued an order dated 18.11.2019 sanctioning the payment of difference in benefits to the respondents and such gratuity amount was calculated and granted on enhanced rate. It is submitted that the employees who had retired between the period from January, 2016 to March, 2018 were conferred the enhanced amount of gratuity by mistake since the provisions of the Amendment Act which was introduced vide notification dated 29.03.2018 will not be entitled to gratuity on the maximum ceiling limit of Rs.20 lakhs. 6. It is submitted that in case of Rafiq Masih, the excess payment made to the employees was on account of wrongful fixation of salary consequent upon upward revision of pay scales or payment of allowances for which employees were not authorized. In none of the judgments which have been considered by the Supreme Court in the case of Rafiq Masih, the recovery of the amounts by the concerned employer pertains to the arrears of gratuity, and the principles in the case of Rafiq Masih (supra) will not apply for the amounts paid to the retired employees more than a period of 1 to 3 years after their retirement. 7. Learned Senior Advocate Mr.Joshi has submitted that the three judge bench of the Hon'ble Supreme Court of India State of Punjab v. Rafiq Masih, 2014(8)SCC 883, while examining the conflict between the earlier judgments of Shyam Babu Verma v. Union of India ( 1994 (2) SCC 521 ); Sahib Ram v. State of Haryana (1995 Supp. 7. Learned Senior Advocate Mr.Joshi has submitted that the three judge bench of the Hon'ble Supreme Court of India State of Punjab v. Rafiq Masih, 2014(8)SCC 883, while examining the conflict between the earlier judgments of Shyam Babu Verma v. Union of India ( 1994 (2) SCC 521 ); Sahib Ram v. State of Haryana (1995 Supp. 1 SCC 18) on one hand and Chandi Prasad Unyal v. State of Uttarakhand ( 2012 (8) SCC 417 ) on the other, has clearly held that judgments in case of Shyam Babu Verma v. Union of India and Sahib Ram v. State of Haryana have been passed in exercise of powers under Article 142 of the Constitution of India. Furthermore, it has been held that directions issued under Article 142 of the Constitution of India do not constitute a binding precedent unlike Article 141 of the Constitution. Therefore, denial of recoveries by employer on account of mistake of the employer in all the judgments relied upon in case of State of Punjab v. Rafiq Masih is under exercise of special powers under Article 142 of the Constitution of India in facts of those cases and will not be a binding precedent. He has referred to the judgement of Supreme Court in case of Chandi Prasad Unyal Vs. State of Uttarakhand that any amount paid/ received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations, law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 8. Finally, in the alternative it is submitted that recovery may be allowed to be affected from Class-I employees since it could not be said that such recovery will be harsh in their cases since they have received exorbitant amount of nearly Rs.30 to Rs.40 lakhs and the recovery would be pertaining to meagre amount of around Rs.2 lakhs to Rs.4 lakhs. It is submitted that in fact the judgment in the case of Rafiq Masih (supra) would apply only in case of Class-III and Class-IV employees and not in Class-I and Class-II employees. The amount sought to be recovered by the Appellant GWSSB towards arrears of differential payment of gratuity is negligible compared to the retirement benefits paid to them including gratuity. The amount sought to be recovered by the Appellant GWSSB towards arrears of differential payment of gratuity is negligible compared to the retirement benefits paid to them including gratuity. Thus, it is urged that recovery may be permitted so far as Class-I and Class-II employees are concerned. 9. Per contra, learned advocate Ms. Ashlesha Patel has submitted that the impugned order passed by the learned Single Judge does not require interference as the same is precisely passed after placing reliance on the judgment of Supreme Court in the case of Rafiq Masih (supra) (2015) 4 SCC 354. 10. The facts which are established from the pleadings are as under: (a) The respondents who are the employees of the appellant Board have retired from the respective posts from Class-I to Class-IV between the period from 01.01.2016 to 28.03.2018. (b) Some of the employees have passed away during such period and the recovery is sought from their legal heirs. (c) All these employees were paid the gratuity on the basis of maximum ceiling of Rs.20 lakhs by the respondent Board on 18.11.2019. (d) The appellant Board effected recovery from such employees almost after 4 years by passing order dated 28.04.2023. (e) On 10.07.2018, the appellant Board resolved and passed a resolution in the General Meeting to give effect to the resolution dated 15.10.2016 passed by the Government of Gujarat increasing the maximum limit of retirement gratuity from 10 lakhs to 20 lakhs. This resolution is passed under the provisions of Rule 18 of Gujarat Civil Services (Pension) Rules, 2002 and has been given effect from 01.01.2016. 11. Under the Gujarat Civil Services (Pension) Rules, 2002 the maximum amount of gratuity payable was Rs.10 lakhs which was increased to Rs.20 lakhs. The Board further resolved that to take permission from the concerned department of State Government, accordingly a letter dated 26.07.2018 was addressed to the State Government to give effect to the resolution dated 15.10.2016 of the increase in ceiling limit, however, the State Department by the communication dated 28.08.2018, rejected the proposal sent by the Board on the ground that the employees of the Board and the Board is governed by provisions of Payment of Gratuity Act, 1972 and hence the provisions of resolution dated 15.10.2016 in the pension Rules will not apply to such employees. 12. 12. Thereafter, there was an amendment in the Payment of Gratuity (Amendment) Act, 2018 whereby the maximum ceiling limit of gratuity as provided in the Payment of Gratuity Act was increased from Rs.10 lakhs to Rs.20 lakhs. Necessary resolution was passed by the appellant Board to give effect to such amendment. Such resolution was passed on 26.07.2018 and approvals were sought by the State Government. Accordingly, the State Government by the resolution dated 17.09.2019 granted approval of increase in limit of gratuity from Rs.10 lakhs to Rs.20 lakhs. Thereafter, the appellant Board credited the amount of gratuity on 18.11.2019 to the accounts of retired employees and the legal heirs on the basis of enhanced amount of gratuity. 13. After a period of almost 4 years, the appellant Board vide communication dated 28.04.2023 decided to recover the alleged excess amount paid to the gratuity by placing reliance on the amendment brought in the Payment of Gratuity Act w.e.f. 29.03.2018. It was decided that the employees who had retired either before the said date i.e. 29.03.2018 and between 01.01.2016 and 28.03.2018 are not entitled to gratuity on enhanced limit. The learned Single Judge set aside such action of the appellant Board by placing reliance on the judgment of the Supreme Court in the case of Rafiq Masih (supra) (2015) 4 SCC 334 . The learned Single Judge after considering both the judgments of Rafiq Masih (supra) by the Larger Bench and the Division Bench and has held as under:- “13. It would appear that since there appeared to be difference of views in the decisions of the Hon’ble Apex Court, more particularly whereby the Hon’ble Apex Court had invoked the power available under Article 142 of the Constitution of India to do complete justice had set aside the order of recovery as against the decisions where recovery had not been interfered with, the Hon’ble Apex Court had inter alia observed that interference of the Apex Court had only been in such cases where recovery would result in extreme hardship outweighing the employee’s right to recover. The Hon’ble Apex Court thereafter had referred the earlier decisions and had laid down the parameters, wherein hardship would be caused to the employees if recovery is sought to be affected of amount paid by the employer in excess of entitlement and laid down the law that in the situations as envisaged recovery would be impermissible. The Hon’ble Apex Court thereafter had referred the earlier decisions and had laid down the parameters, wherein hardship would be caused to the employees if recovery is sought to be affected of amount paid by the employer in excess of entitlement and laid down the law that in the situations as envisaged recovery would be impermissible. Amongst other situations the Hon’ble Apex Court has laid down that recovery from a retired employee would be impermissible. In the considered opinion of this Court, while the Hon’ble Court in case of Chandi Prasad Uniyal (supra) had laid down that recovery would be interfered only in cases of hardship and whereas in the later decision of Rafiq Masih, the Hon’ble Apex Court having after examining various decisions, laid down the parameters which would cause hardship to the employees and whereas recovery from retired employees having been stated to be an impermissible procedure, in the considered opinion of this Court, the decision of Chandi Prasad Uniyal would not come to the aid of the respondent Board. 14. Furthermore, it also requires to be noted that while laying down the situations of hardship, the Hon’ble Apex Court had laid out a very clear distinction, inasmuch insofar as Class-III and Class-IV employees who are in service, recovery would not be permissible. Such a distinction has not been drawn in any of the other categories. Thus, it would appear that insofar as serving employees are concerned, the Hon’ble Apex Court was of the view that recovery from Class-I and Class-II employees would not result in any hardship, but as far as Class III and Class-IV, the same would result in hardship and hence, they were excluded from the ambit of permissible recovery. On the other hand, it would appear that insofar as retired employees are concerned, there is no distinction made based upon the category/class in which the employee is working. Thus, recovery from any retired employee would be impermissible and hence, the submissions made by learned Advocate Mr.Gandhi about no hardship being caused to such retired employees who are Class-I and Class-II employees cannot be countenanced and hence, the same is hereby rejected.” 14. The learned single judge has considered both the judgements rendered by the Apex Court by larger bench and the division bench in the case of Rafiq Masih(supra) and also the decision rendered in the case of Chandi Prasad Uniyal (supra). The learned single judge has considered both the judgements rendered by the Apex Court by larger bench and the division bench in the case of Rafiq Masih(supra) and also the decision rendered in the case of Chandi Prasad Uniyal (supra). We are in complete agreement with the observations made by the learned single judge. The Appellant has heavily placed reliance on the larger bench judgment(2014)(8)SCC 883) of the Supreme Court for justifying their action of recovery, however, ultimately the Supreme Court has recorded that there was no conflict of opinion in the view expressed in case of Shyam Babu Verma(supra), Sahib Ram(supra) and Chandi Prasad Uniyal(supra), and it held that the reference was unnecessary, and the matters were sent back to the Division Bench. Thereafter, the Division Bench issued directions in Rafiq Masih(supra)(2015)(4)SCC 334. Thus, the reliance placed by the Appellant on the larger bench judgement of the Apex Court in case of Rafia Masih(supra) is misconceived. 15. At this stage, it would be apposite to incorporate the observations made by the Supreme Court in the case of Rafiq Masih (supra) (2015) 4 SCC 334 . The Supreme Court after recording the observations made by the Larger Bench(2014(8)SCC 883 between the same parties in has held thus:- “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 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-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, 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.” 16. Thus, so far as the recovery from the employees belonging to Class-III and Class-IV service is concerned, the Supreme Court has categorically held that such recovery from the employees is impermissible in cases the amount has been mistakenly paid by the employee. The circumstance - (ii) of the aforesaid judgment also refers that recovery from retired employees or the employees and the employees who are due to retire in one year of the order of recovery is also impermissible. Circumstance – (v) also bars recovery in other cases where the Court arrives at the conclusion that recovery is made from the employee would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh equitable balance of employer’s right to recover. The Supreme Court has not clarified that the Circumstances II to V confine to the employees belonging to Class-III and Class-IV only. In our considered opinion, the circumstances specified in such clauses also equally apply in full rigor to other classes of employees also and who have retired and the recovery is sought to be affected from them who are due to retire in one year. 17. In the present case, the recovery is affected from the legal heirs of deceased employees also, and also from those employees belonging to all the categories who have retired more than 3 years prior to the order passed by the appellant Board. In case, the Appellant Board had realized the mistake immediately after the gratuity amount was deposited, the action of recovery within short span could have been viewed with different perspective. In the present case, all the employees who have benefited from the gratuity must have utilized the amount. As narrated above the legal heirs of deceased employee cannot be made to suffer for the belated action of the Board. In the present case, all the employees who have benefited from the gratuity must have utilized the amount. As narrated above the legal heirs of deceased employee cannot be made to suffer for the belated action of the Board. No recovery from Class-I or II employees can also be permitted, as it will amount to discrimination, since by a common action the Appellant Board has conferred the amount of gratuity to all the classes of employees. They can only be viewed as single class of ‘retired employees’. It is not open for the Board to contend that the hardship caused to class-I and II employees will be less, hence recovery is permissible. Pain or Hardship, is entirely subjective; and it is impossible to compare one person’s hardship with that of another. A discriminative administrative action cannot be allowed to be sustained on a subjective aspect of ‘hardship’. 18. There is another aspect which we would like to consider while deciding the present appeal. The appellant Board has asserted before us that the Board is governed by the provisions of the Payment of Gratuity Act, 1972. No provision has been pointed to us which enables the Board to recover gratuity in the given circumstances. 19. Thus, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge setting aside the action of the appellant Board affecting recovery of gratuity from the employees after their retirement. The appeal fails and the same is dismissed. 20. In view of disposal of main matter, connected Civil Application would not survive.