Gujarat High Court
Ahmedabad Municipal Corporation & vs Manoj Kantilal Trivedi on 13 September, 2017
Author: M.R. Shah
Bench: M.R. Shah
C/LPA/1494/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1494 of 2017
In
SPECIAL CIVIL APPLICATION NO. 6120 of 2015
TO
LETTERS PATENT APPEAL NO. 1499 of 2017
In
SPECIAL CIVIL APPLICATION NO. 7657 of 2015
With
CIVIL APPLICATION NO. 11969 of 2017
In
LETTERS PATENT APPEAL NO. 1494 of 2017
TO
CIVIL APPLICATION NO. 11974 of 2017
In
LETTERS PATENT APPEAL NO. 1499 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
=========================================
1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
AHMEDABAD MUNICIPAL CORPORATION & 1....Appellant(s)
Versus
MANOJ KANTILAL TRIVEDI....Respondent(s)
=============================================
Appearance:
MR. KAMAL TRIVEDI, LD. SENIOR ADV. MR HS MUNSHAW, ADVOCATE for
the Appellant(s) No. 1 2
MR PRABHAKAR UPADYAY, ADVOCATE for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
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C/LPA/1494/2017 JUDGMENT
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 28.09.2016 passed in Special Civil Application No. 6119 of 2015 to 6123 of 2015 with Special Civil Application No. 7657 of 2015, by which, the learned Single Judge has allowed the said Special Civil Applications and has quashed and set aside orders of recovery and the orders refixing the pension, passed by the original respondents appellants herein, the original respondents appellants herein have preferred present Letters Patent Appeals under Clause 15 of the Letters Patent.
2.0. The facts leading to the present Letters Patent Appeal in nutshell are as under:
2.1. That all the original petitioners respondents herein were appointed as a daily wager Helpers in the workshop department of the appellant Ahmedabad Municipal Transport Service (hereinafter referred to as the "AMTS"). That the original petitioner of Special Civil Application No. 6119 of 2015 was appointed with effect from 7th March, 1977. He came to be made permanent on the post of Helper with effect from 1st November, 1982 and worked on the post upto 1990. That thereafter, he came to be promoted as FitterII in the year 1990 on passing of the departmental examination. He was granted regular payscale of the post of Fitter belatedly with effect from 1st December, 1996. The AMTS treated him as a permanent employee on Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT the post of FitterII with effect from 1st March, 2000. He retired from service w.e.f. 31.03.2014.
2.2. That original petitioner of Special Civil Application No.6120 of 2015 was appointed on 16th February, 1977, became permanent as Helper on 1st November, 1982 and have been worked upto September, 1990, came to be promoted as FitterII as he passed the departmental examination. He was granted scale with effect from 1st July, 1995, and treated as permanent from 1st March, 2000. This petitioner retired on 31st July, 2012.
2.3. That the petitioner of the third petition bear the similar facts as he was appointed with effect from 1st June, 1976, was made permanent as Helper with effect from 1st August, 1982. He worked upto 1990, when he got promotion as FitterII on passing of departmental examination. He was given the regular payscale in the cadre of Fitter from 1st July, 1994 and was treated as permanent on the post with effect from 1st Augst, 1999. On reaching the age of superannuation, he retired with effect from 1st March, 2010.
2.4. That the original petitioner of Special Civil Application No.6122 of 2015, was appointed as daily wager Helper with effect from 29th May, 1976 and was made permanent as Helper from 1st September, 1981. In 1988 he came to be promoted as FitterII in the year 1988 on Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT passing of the departmental examination, was granted payscale with effect from 1st April, 1994 and was treated as permanent employee on the post of FitterII with effect from 1st August, 1999. He retired on 30th June, 2012.
2.5. That the original petitioner of Special Civil Application No.6123 of 2015, was appointed as daily wager Helper with effect from 14th March, 1977 and was made permanent on the post of Battery Boy with effect from 1st June, 1981. He came to be promoted as ElectricianII on passing of the departmental examination, was regularized on the post of ElectricianII with effect from 1st September, 1999. This petitioner came to be superannuated with effect from 1st November, 2013.
2.6. That the original petitioner of the Special Civil Application No.7657 of 2015 was appointed with effect from 8th March, 1977 and he came to be retired with effect from 31st May, 2013 upon reaching the age of superannuation, from the post of Auto ElectricianII. It is his case, similar to other original petitioners, that without issuance of notice and without giving any opportunity, the respondent Transport Service started deducting and recovering amount from the pension. He approached the Industrial Tribunal by filing Complaint under Section 33A of the Industrial Disputes Act, 1947. An interim application dated 27th January, 2015 in said Complaint No.01 of 2015 was filed. The Tribunal by order dated 24th March, 2015 rejected the said application.Page 4 of 11
HC-NIC Page 4 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT 2.7. That all the original petitioners were extended the benefit of the higher grade pay scale in the year 2008 under the Scheme called 918
27. That their salary was fixed accordingly. That at the time of retirement their pension was also fixed on the basis of higher grade scale given on completion of requisite length of service. All of them were getting the regular pension since their respective dates of retirement. That thereafter, all of sudden and without any notice and / or without giving any opportunity of being heard to the original petitioners, the AMTS revised / refixed their pension on the ground that as per the subsequent policy they were not entitled to benefit of higher grade pay scale. Not only their pension was revised / refixed exparte, even the AMTS started recovering and deducting the amount of difference of such refixation of pension, from pension w.e.f. December 2014.
2.8. Feeling aggrieved and dissatisfied with the action of the AMTS in refixing / revising the pension exparte by withdrawing the benefit of higher grade pay scale which was paid to the original petitioners in the year 2008 and the respective orders of recovery from the pension, the original petitioners preferred Special Civil Applications before this Court. That by impugned judgment and order, the learned Single Judge has held the respective orders of refixing / revising the pension of withdrawal of the benefit of higher grade pay scale and respective orders of recovery as bad in law, illegal, arbitrary and in breach of principles of natural justice and consequently has quashed and set aside the same. By passing the impugned common judgment and order, the learned Single Judge has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Syed Abdul Qadir Vs State of Bihar reported in (2009) 3 SCC 475 as well as in the case of State of Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT Punjab Vs Rafiq Masih reported in AIR 2015 SC 696.
2.9. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge, the original respondents AMTS have preferred present Letters Patent Appeals under clause 15 of the Letters Patent.
3.0. Shri Kamal Trivedi, learned Senior Advocate has appeared with Shri H.S. Munshaw, learned advocate for the appellants AMTS and Shri Prabhakar Upadhaya, learned advocate has appeared on behalf of the original petitioners.
4.0. Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in quashing and setting aside the orders of recovery and re fixation of the pension of the respective original petitioners.
4.1. It is submitted by Shri Kamal Trivedi, learned Senior Advocate for the appellants that as such subsequently it was noticed that the original petitioners were not entitled to benefit of higher grade pay scale and therefore, when their pension was refixed / revised and the recoveries were sought, learned Single Judge ought not to have quashed and set aside the same.
4.2. It is further submitted by Shri Kamal Trivedi, learned Senior Advocate for the appellants that the learned Single Judge has not properly appreciated the fact that the employee concerned at the time of accepting the release of first higher pay scale on completion of 9 Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT years of service, furnished an undertaking agreeing to refund the amount of excess payment received, without raising any grievance and / or issue. It is submitted by Shri Kamal Trivedi, learned Senior Advocate for the appellants that learned Single Judge ought to have appreciated the action of the recovery is just, lawful and legitimate owing to introduction and implementation of the new policy of higher pay scale. It is submitted that as per the new policy the concerned employees were entitled to benefit of 1224 and therefore, what was not available in law, could not have been extended to the employees of the AMTS.
Making above submissions, it is requested to admit / allow the present Letters Patent Appeals.
5.0. All these appeals are vehemently opposed by Shri Prabhakar Upadhayay, learned advocate for the original petitioners.
5.1. It is further submitted by Shri Upadhyay, learned advocate for the original petitioners that all the concerned employees original petitioners were granted benefit of higher grade pay scale and benefit of 91827 in the year 2008. It is submitted that the said benefit was given as per the policy prevailing at the relevant time. It is submitted that thereafter all the concerned employees / petitioners were getting salary accordingly and at the time of their retirement their pension was fixed accordingly. It is submitted that all of sudden without giving any opportunity of being heard to the original petitioners and on the basis of the subsequent policy, the AMTS not only refixed / revised the pension but also sought the recovery of the excess amount / difference between amount of pension and the revised pension and that too from the pension. It is submitted that therefore, in the facts and circumstances of the case and relying upon the decision of the Hon'ble Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT Supreme Court in the case of Syed Abdul Qadir (supra) as well as Rafiq Masih (supra) and more particularly, when even it was not the case on behalf of the AMTS that benefit of 91827 was given by mistake, the learned Single Judge has rightly quashed and set aside the action of the respondent in revising / refixing the pension denying the benefit of higher grade pay scale as per 91827 scheme and has rightly quashed and set aside the recovery sought.
Making above submissions, it is requested to dismiss the present Letters Patent Appeals.
6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that as such the revision / refixing of the pension and the recovery sought of the difference of pension and revision of pension is absolutely in breach of principles of natural justice. Before passing the impugned orders, admittedly no opportunity of being heard has been given.
6.1. It is required to be noted that as such the respective petitioners were granted the benefit of higher grade pay scale on completion of 9 1827 of service considering the policy which was prevailing at the relevant. All of them were granted benefit of higher pay scale in the year 2008. That all the original petitioners were accordingly getting the salary. That thereafter, all of them retired on attaining the age of superannuation and therefore, their pension was fixed accordingly. However, after the original petitioners retired from service and were getting pension, all of sudden on the basis of the subsequent policy, AMTS refixed / revised the amount of pension withdrawing the benefit of higher pay scale granted on completion of 91827 years which were Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Oct 01 19:31:10 IST 2017 C/LPA/1494/2017 JUDGMENT given to the original petitioners at the relevant time on the basis of policy prevailing at the relevant time. Not only that but even AMTS also sought recovery of the difference between the amount of pension paid and the revised pension and that too exparte and without giving an opportunity of being heard to the petitioner. At this stage, it is required to be noted that even it was not the case on behalf of the AMTS that earlier they were granted the benefit of higher grade scale on completion of 91827 by mistake and / or they were not entitled to such benefit at the relevant time considering the policy prevailing at the relevant time. It appears that on the basis of subsequent policy, the AMTS has withdrawn the benefit of higher pay scale which was granted on completion of 91827 and which was granted earlier in the year 2008.
6.2. By the impugned order, the learned Single Judge has quashed and set aside the orders of revising / refixing the pension and withdrawn the benefit of higher pay scale and recovery on the following grounds :
1. That the order of refixation of pension on withdrawal of the benefits of higher pay scale on completion of 91827 years which were granted earlier, was in breach of principles of natural justice.
2. That it was not at all the case on behalf of the respondent employer that benefits were given by mistake.
3. That at the relevant time when the benefits of higher pay scale on completion of 91827 years was given, the same was considering the policy which was prevailing at the relevant time.Page 9 of 11
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4. That the benefits of higher pay scale on completion of 91827 years was withdrawn subsequently that too after original petitioners retired from service that too on the basis of the policy subsequent policy, which was not permissible.
6.3. Considering the aforesaid facts and circumstances and the law laid down by the Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra) as well as Rafiq Masih (supra), it cannot be said that the learned Single Judge has committed any error in quashing and setting aside the decision of the AMTS in withdrawing the benefit of higher pay scale and refixing and / or revising the pension and the recovery sought.
7.0. Now, so far as submission on behalf of the appellant that at the relevant when benefit of first higher grade scale was given on completion of 9 years the concerned employees given the undertaking that in case it is found that they are not entitled to the same, they shall return the same is concerned, at the outset, it is required to be noted that in the present case and as observed herein above, it is not the case on behalf of the AMTS that at the relevant time and when benefit of higher grade scale on completion of 91827 years was given considering the policy prevailing at the relevant time, they were not entitled to such benefit. It is also not the case on behalf of the AMTS that benefit was granted by mistake. As observed herein above, benefit of higher pay scale is sought to be withdrawn on the basis of the subsequent policy which is not permissible. Under the circumstances, undertaking if any given by the original petitioners, cannot come in their way.
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C/LPA/1494/2017 JUDGMENT
7.1. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the learned Single Judge. We see no reasons to interfere with the impugned judgment and order passed by the learned Single Judge.
8.0. In view of the above and for the reasons stated above, all the Appeals fail and same deserve to be dismissed and are accordingly dismissed.
In view of dismissal of Letters Patent Appeals, Civil Applications No. 11969 to 11974 of 2017 stand dismissed. No costs.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Oct 01 19:31:10 IST 2017