Gujarat High Court
Chief Officer vs Haribhai Ambalal Desai & on 18 March, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/2366/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2366 of 2009
In SPECIAL CIVIL APPLICATION NO. 340 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
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CHIEF OFFICER....Appellant(s)
Versus
HARIBHAI AMBALAL DESAI & 1....Respondent(s)
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Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2
MR HM PARIKH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Page 1 of 13
C/LPA/2366/2009 JUDGMENT
Date : 18/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The present appeal has been filed under Clause 15 of the Letters Patent by the appellantoriginal respondent No.3 against the judgment dated 05.05.2009 passed by the learned Single Judge of this Court in Special Civil Application No. 340 of 2009, whereby the learned single Judge has allowed the said petition.
2. The facts, in brief, are that prior to coming into force of Gujarat Municipalities Act, 1963, Nadiad Municipality was known as Nadiad Borough Municipality. It had its own pension Rules sanctioned by the Government. Disputes with respect to pension and other service conditions between the employees and Municipality were resolved through two references vide Reference I.T. No.174 / 74 and 200/77. The respondent No.1 hereinoriginal petitioner retired from the service of appellantMunicipality on 30.10.1992. As per the rules and regulations governing his case, his basic pension was fixed by the Municipality. As on 31.12.1995 his pension was calculated at Rs.3232/ per month.
2.1. In the year 1998, the Government revised pension of all employees with effect from 01.01.1996. Since, the appellant Municipality did not extend the benefit of revised pension to some of Page 2 of 13 C/LPA/2366/2009 JUDGMENT the employees, one of such employee namely Shri Jayantilal Ratilal Patel preferred Special Civil Application No.10298 of 2004 before this Court, which was allowed vide vide order dated 21.04.2006 by this Court. The decision was carried in appeal being Letters Patent Appeal No.1171 of 2006 by the appellantMunicipality, which was dismissed by the Division Bench vide order dated 26.09.2007. 2.2. The respondent No.1 herein also finding that injustice was done to him, made several correspondences with the Municipality for extending the benefit of revised pension. However, his grievance was not redressed by the Municipality. Therefore, he filed a petition before this Court being Special Civil Application No. 340 of 2009. The learned Single judge vide impugned judgment dated 05.05.2009 allowed the said petition and directed the appellantMunicipality to refix the pension of the respondent No.1 on the basis of the decision in the case of Jayantilal Ratilal Patel and pay arrears within a period of three months from the date of receipt of a copy of the order. Against the judgment of learned Single Judge, the present appeal has been preferred by the appellantoriginal respondent No.3.
3. Learned counsel for the appellant submitted that the learned Single Judge is not justified in allowing the petition. He contended that in view of the settlement arrived at between the parties in reference cases before the Industrial Tribunal the amount of Dearness Allowance is already included in the salary of the Page 3 of 13 C/LPA/2366/2009 JUDGMENT respondent No.1. Therefore, while calculating the basic pay of the respondent No.1 an amount of Rs.1860/ being the amount already paid towards D.A. was deducted and consequently calculation was made, which is available at page Nos. 92 and 93 of the petition. Therefore, according to his submission the respondent No.1 cannot be allowed to have additional Dearness allowance on Dearness allowance.
3.1. Learned counsel for the appellant also taken us to the various documents and contended that the appellantMunicipality has adopted the pension Rules contained in Chapter11 of the Bombay Civil Service Rules and as per the said Rules, the pension of the respondent No.1 requires to be fixed at Rs.1905/ since the average last ten months salary comes to Rs.3810/. As per the table, the respondent No.1 is entitled for pension at Rs.5498/ per month whereas at present the pension of the respondent No.1 is fixed at Rs.6368/ per month.
3.2. In the alternative, learned advocate for the appellant also contended the that since the respondent No.3 has approached this Court after about seventeen years, he is not entitled for any relief. In support of his contention, he pressed into service the decision of the Apex Court in the case of Shiv Dass v. Union of India & Ors., AIR 2007 SC 1330, more particularly paras 8, 9 and 10, which reads as Page 4 of 13 C/LPA/2366/2009 JUDGMENT under:
8. It was stated in State of M.P. v. Nandlal Jaiswal and Ors. AIR 1987 SC 251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 993). There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also).
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a Page 5 of 13 C/LPA/2366/2009 JUDGMENT ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
3.3. Thereafter, he pressed into service the decision of the Apex Court in the case of Union of India and Others Vs. Tarsem Singh, reported in (2008) 8 SCC 648, more particularly paras 7 and 8, which reads as under:
7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of Page 6 of 13 C/LPA/2366/2009 JUDGMENT laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."
4. Learned counsel for respondent No.1original petitioner referring to the earlier litigations submitted that as the appellant Municipality was not giving the benefits of the Revision of Pay Rules, 1998, the member of the Pensionary Association approached this Court by way of writ petition being Special Civil Application No.6180 of 1999, which came to be disposed of on 20 th August, 1999 providing that the representation to be preferred by the petitionerAssociation would be considered by the Government. In response to the representation so made, the Government passed an order on 22.10.1999 providing that Municipality shall implement Government Resolutions relating to payment of pension with increased Dearness allowance and consequently directions in this regard were also given. However, the Government had not given the benefits of the Revision of pay as per the Government Resolution, petitionerAssociation of the Page 7 of 13 C/LPA/2366/2009 JUDGMENT said Special Civil application moved a note for revival of the petition. Ultimately, on 10th May, 2000 the petition was revived and a statement was made on behalf of the appellantMunicipality that they will comply with the directions given by the State Government. Despite several representations and communications, the appellant Municipality had not released the difference in pension payable to the petitionerAssociation.
4.1. Thereafter, the petitionerAssociation filed a Contempt application. However, the same was rejected. Thereafter, one similarly situated person namely Jayantilal Ratilal Patel, had approached this Court by way of filing Special Civil Application No.10298 of 2004 before this Court. This Court vide order dated 21.04.2006 allowed the said petition. The decision was carried in appeal being Letters Patent Appeal No.1171 of 2006 by the appellant Municipality. The Division Bench vide order dated 26.09.2007 dismissed the said appeal. Thereafter, the respondent No.1original petitioner made correspondences with the Municipality for redressal of his grievance and when his grievance was not redressed by the appellantMunicipality, the respondent No.1original petition approached this Court by way of filing the petition. 4.2. Learned counsel for the respondent No.1original petition submitted that inaction on the part of the appellantMunicipality as Page 8 of 13 C/LPA/2366/2009 JUDGMENT narrated hereinabove cannot be viewed leniently. He further submitted that there is no intentional delay on the part respondent No.1 in preferring the petition.
5. We have heard learned advocate for the appellant as well as learned advocate for the respondent No.1original petitioner. We have also perused the impugned judgment passed by the learned Single Judge and found that the learned Single Judge has given cogent and convincing reasons in allowing the petition. The relevant paragraphs of the said judgment reads as under : "5. On behalf of the Municipality, it was vehemently contended that two cases are vitally different. In case of the present petitioner, Municipality has adopted his basic pension fixation of Rs.3232/ per month as on 31.12.1995 without any modification and consequently revised basic pension as on 1.1.1996 was fixed. It was contended that contrary to what was noticed by this Court in case of Jayantilal Ratilal Patel, other similarly situated employees of the Municipality have also not got the benefits which Jayantilal Ratilal Patel received.
6. I am unable to uphold the stand of the Municipality. As already noted, decision in case of Jayantilal Ratilal Patel has attained finality. Central issue in the said case was whether Municipality was entitled to change the basic pension fixation of Rs.3603/ in case of Jayantilal Ratilal Patel which prevailed as on 31.12.1995 on the ground that such fixation was erroneous. This ground was, as already noted, turned down holding that such pension fixation was pursuant to rules, regulations and awards passed in Reference cases and no alteration thereon could be permitted to the detriment of the employee. In the present case, same argument is sought to be advanced in disguise. Though it is stated in the reply and in the oral Page 9 of 13 C/LPA/2366/2009 JUDGMENT argument that basic pension fixation of the present petitioner at Rs.3232/ per month as on 31.12.1995 is not sought to be altered, what is sought to be done is that while fixing his revised basic pension as on 1.1.1996, temporary increased Dearness Allowance Rs.1860/ already given benefit of while granting the basic pension as on 31.12.1995, is withdrawn. This is manifest from the calculation sheet produced at page93 along with reply by the Municipality, which reads as follows:
"Haribhai Ambalal Patel Revision in pension w.e.f.1.1.96 Basic Pension Rs.3232 Temporary Increase at the rate of 96% of pension amount.
Minimum Rs.3330 (as per resolution dt. 23.4.1996) Already paid amount of D.A. 1860 I.E. 3330 1860 1470 1470 1st I.R.(fixed) 50 2nd I.R.(10% of Basic) 323 Fitment40%of Basic Pension 1293 Total Rs. 6368 Pension revised w.e.f. 1.1.1996 6.1 Close perusal of this calculation would immediately reveal that to the basic pension of Rs.3232/ as on 31.12.1995, though as per Government Resolution dated 23.4.1996, sum of Rs.3330/ was required to be added, an amount of Rs.1860/ was deducted therefrom to arrive at figure of Rs. 1470/ and thereafter, basic fitment was granted to come to total basic pension of Rs.6368/ as on 1.1.1996. Thus sum of Rs. 1860/ was deducted from the basic pension payable to the petitioner while calculating his revised pension, since according to the respondent Municipality he had already received benefits thereof in his previous fixation. In different language, what is sought to be done in the present case, Page 10 of 13 C/LPA/2366/2009 JUDGMENT which was disallowed in case of Jayantilal Ratilal Patel. Whatever cosmetic difference in the language used in achieving the same purpose, result is the same namely, correction of the perceived incorrectly fixed pension of the employee by Municipality which was clearly disapproved by the Court in the case of Jayantilal Ratilal Patel.
6.2. Contrary to what is sought to be suggested on behalf of the Municipality, this Court had sufficient material of other similarly situated employees which is apparent from paragraph4 of the judgement wherein the Court had taken note of averments made in reply by the Municipality with respect to one Vinodrai Naik whose complete details were made available in following terms :
11. I say that one Mr. Vinodrai Naik, retired from service w.e.f. 31.12.1996, i.e. after coming into effect of the revised pay scale. His pay in the revised pay scale in December, 1996 was Rs.10300/ and D.A. Was Rs.412/. His total pay was Rs.10712/. His ten months average pay was Rs.10527.20.
Hence 50% of the said amount, i.e. Rs.5263.60, was fixed as his pension and his service was only for 31 years, his monthly pension was fixed at Rs.4944.50. In the same way, one Mr. Jagdish Desai retired from service on 30.11.1995 before the date of coming into effect of the revised pay scale. His basic salary in November, 1995 was Rs.1500/ and D.A. Was Rs.2142/. His last 10 months average pay was Rs.3630.50 and 50% of the same being Rs.1815.25 was fixed as his monthly pension. As he had completed 33 years of service, his pension was fixed at Rs.1816 per month. Similarly, one Ambalal Dalwadi retired from service on 30.11.1991 prior to retirement of the petitioner. His basic salary in November, 1991 was Rs.1500/ and D.A. Was Rs.900/. His last 10 months average salary was Rs.2332.50 and 50% of the same is Rs.1166.25. He had also completed 33 years of service and hence his pension was fixed at Rs.1167/ per month. Annexed hereto and marked as ANNEXURE R2 COLLECTIVELY are the copies of pension calculation papers of said three persons.
6. Having carefully gone through the discussions made by Page 11 of 13 C/LPA/2366/2009 JUDGMENT the learned Single Judge, we are of the considered opinion that the learned Single Judge has, for cogent reasons, allowed the petition. Learned advocate for the appellant has raised several other contentions before us. However, the said contentions have rightly been dealt with by the learned Single Judge in the impugned judgment. Learned advocate for the appellant has not been able to contradict the findings arrived at by the learned Single Judge. Therefore, we are in complete agreement with the view taken by the learned Single Judge. However, considering the decision of the Apex Court in the case of Taresh Singh and Shiv Dass (supra), we are of the opinion that the learned Single Judge was not justified in directing payment of arrears relating to seventeen years. We are of the opinion that if this Court restricts the relief relating to arrears three years prior to the date of filing of the writ petition, the same would meet the ends of justice since the respondent No.1original petitioner has come to the Court after considerable delay. Accordingly, we make it clear that the respondent No.1original petitioner will be entitled for arrears three years prior to the date of filing of the writ petition before this Court. It is made clear that entire exercise of re st fixing and payment of arrears shall be completed on or before 31 May, 2014. If the arrears are not paid on or before 31st May, 2014, the same shall carry simple interest at the rate of 10% per annum from the date of filing of the petition till actual payment. Page 12 of 13
C/LPA/2366/2009 JUDGMENT
7. In view of the above, the present appeal is partly allowed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) pawan Page 13 of 13