Gujarat High Court
Oil & Natural Gas Corporation Ltd. & 2 vs Jitendra Pal Anand Ex-D.G.M. (Res.) ... on 23 July, 2014
Author: R.P.Dholaria
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/714/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 714 of 2014
In
SPECIAL CIVIL APPLICATION NO. 13847 of 2004
With
CIVIL APPLICATION NO. 6154 of 2014
In
LETTERS PATENT APPEAL NO. 714 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
OIL & NATURAL GAS CORPORATION LTD. & 2....Appellant(s)
Versus
JITENDRA PAL ANAND EX-D.G.M. (RES.) I.R.S., O.N.G.C.....Respondent(s)
================================================================
Page 1 of 6
C/LPA/714/2014 JUDGMENT
Appearance:
MR AJAY R MEHTA, ADVOCATE for the Appellant(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 23/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. We have learned advocate Mr.Ajay Mehta for the appellants and Mr.Jitendra Pal Anand, respondent, who is appeared as partyinperson.
2. This Letters Patent Appeal has been filed by the appellants original respondents challenging the judgment of the learned Single Judge dated 01.05.2014 passed in Special Civil Application No.13847 of 2004.
3. The case of the respondentoriginal petitioner is that while in service, he found that his juniors named Shri Dwarkaprasad and others were promoted to the rank held by him and they were given higher pay and therefore, anomaly between his pay and the pay of his juniors holding same post was created. He moved various authorities for removing such anomaly by giving him benefit of stepping up of pay, but all was in vain and ultimately, he retired from service on 30.11.2001. He has, therefore, filed the above Special Civil Application No.13847 of Page 2 of 6 C/LPA/714/2014 JUDGMENT 2004 for granting benefit of stepping up of pay at par with Shri Dwarkaprasad with effect from 01.01.1998, by upholding the order dated 26.03.2003 passed by the appellantsoriginal respondents and also to grant all consequential benefits as a result of stepping of his pay.
4. Upon considering the facts of the case, the learned Single Judge has allowed the Writ Petition and held that the petitioner is entitled to the benefit of stepping up of pay at par with Shri Dwarkaprasad with effect from 01.01.1998 till the date of his retirement and all consequential benefits as a result of stepping up of his pay. The learned Single Judge has further directed the appellantsoriginal respondents to confer aforesaid benefits to the petitioner with interest at the rate of 6% from the date of filing of the petition i.e. from 15.10.2004 till such benefits are released to the petitioner. Being aggrieved with the aforesaid judgment passed by the learned Single Judge, the present appellantsoriginal respondents has filed this Letters Patent Appeal.
5. Learned advocate Mr.Ajay Mehta for the appellants has argued that learned Single Judge has decided the writ petition being Special Civil Application No.13847 of 2004 by judgment 01.05.2014 based upon the documentary evidences produced by the respondent herein. At the relevant point of time, Mr.Dwarkaprasad and Mr.R.R. Wankhede, though juniors, were getting more salary, as compared to respondent hereinoriginal petitioner, and therefore, by considering that fact, the aforesaid writ petition was allowed by learned Single Judge. Actually, after getting certified copy of the aforesaid judgment dated 01.05.2014, the appellant hereinCorporation has located that salary of Mr.Dwarkaprasad as well as one Mr.Wankhede who were juniors to the respondent herein was wrongly fixed in the year 1997 and they were getting more salary and this fact could not have been made for the Page 3 of 6 C/LPA/714/2014 JUDGMENT purpose of fixing stepping up of salary so far as the present respondent is concerned.
6. We have thoughtfully considered the arguments advanced by learned advocate Mr.Ajay Mehta for the appellants and on going through the entire record of the case, we have not noticed in any document wherein, it is revealing that salary of the aforesaid employees, namely, Mr.Dwarkaprasad and Mr.Wankhede have been wrongly fixed at that relevant point of time. Learned advocate Mr.Mehta for the appellants has clarified that the authority is going to rectify the mistake committed in the year 1997 but yet not rectified. Thus, they are going to recover the excess amount which has been paid to them. On overall consideration of the matter, the decision of the learned Single Judge is totally based upon the documentary evidences available on record. Even mistake committed by the appellantCorporation, at the relevant point of time, has yet not been corrected. On that basis, wrong fixation of salary of above employees were made and yet the Corporation has not initiated any action for rectification till today, and no cognizance of such arguments can be taken while considering the appeal which is based on the decision of the learned Single Judge. The arguments advanced by learned advocate for the appellants are not supported by any documentary evidences. It is rather on hypothesis and on presumption of wrong fixation of erstwhile three employees, namely, Mr.Dwarkaprasad, Mr.R.R. Wankhede and Mr.N.S. Tanwar as well as respondent herein who already retired from the service prior to the year 2012.
7. In the case of Shyam Babu Verma and ors. v. Union of India and ors, reported in (1994) 2 SCC 521, the Hon'ble Supreme Court (three Judge Bench) held as under:
Page 4 of 6C/LPA/714/2014 JUDGMENT "11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330560 but as they have received the scale of Rs. 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
8. In the case of Chandi Prasad Uniyal and ors v. state of Uttarakhand and ors, reported in (2012) 8 SCC 417, the Hon'ble Supreme Court held that the Supreme Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered. Most of the cases were decided on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.
In the instant case, the respondent retired in the year 2001.
9. If any correction regarding fixation of pay of the aforesaid erstwhile employees who already retired, is to be carried out, then also the authority shall not be entitled to recover the amount in view of aforesaid decisions and that rectification exercise would definitely render futile. In that view of the matter also, appeal deserves to be dismissed.
Page 5 of 6C/LPA/714/2014 JUDGMENT
10. Even if the argument of learned advocate for the appellants is accepted that some error in fixation of salary of aforesaid three employees was committed at the relevant point of time, they are now retired. In our considered opinion, rectification exercise of fixation of salary will also be rendered futile.
11. In the above view of the matter and on overall consideration of the reasons advanced by learned Single Judge, which are supported by relevant documentary evidences, we find that no error appears in the order of learned Single Judge dated 01.05.2014 passed in Special Civil Application No.13847 of 2004, which calls for any interference by this Court. Accordingly, present appeal is dismissed.
12. In view of disposal of main appeal, Civil Application does not survive and is disposed of. Notice is discharged.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) chandresh Page 6 of 6