Gujarat High Court
Dolatsingh Sardarsingh Sindha & 4 vs Gujarat State Ellectricity Corpn Ltd on 24 February, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/SCA/21762/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21762 of 2005
TO
SPECIAL CIVIL APPLICATION NO. 21766 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
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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 or any order made thereunder
?
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DOLATSINGH SARDARSINGH SINDHA & 4....Petitioner(s)
Versus
GUJARAT STATE ELLECTRICITY CORPN LTD....Respondent(s)
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Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1 5
MR UT MISHRA, ADVOCATE for the Petitioner(s) No. 1 5
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 24/02/2015
ORAL JUDGMENT
1. As in all matters, common questions arise for consideration, they are being considered simultaneously.
2. All the petitions are directed against the order AnnexureA to AnnexureE passed by the respondent Page 1 of 6 C/SCA/21762/2005 JUDGMENT in purported exercise of the power, whereby after retirement of the concerned petitioners, the recovery is sought to be effected of the difference of the payscale on the ground that the educational qualification was lacking of the respective petitioners.
3. The short facts of the case appears to be that the petitioners were working with the respondent Electricity Corporation as Peon. They worked for about 28 years and they retired from Dhuvaran TPS which is under the control of the respondent. The relevant details of the respective petitioners are as under:
Sr. Name Date of Date of the Payscale No. Retire impugned revised ment order with effect from
1. Dolatsingh 31.03.2002 06.05.2005 12.06.1992 Sardarsingh Sindha
2. Gambhirsing 31.03.2001 06.05.2005 18.04.1993 Viraji Sindha
3. Kalubhai 31.07.2002 06.05.2005 22.01.2000 Punjabhai Sindha
4. Kalubhai 30.04.2003 06.05.2005 04.05.1991 Udaysinh Sindha
5. Somabhai 30.06.1997 06.05.2005 04.01.1988 Bhathibhai Chauhan
4. After the retirement of the petitioners and more particularly after the expiry of more than 2 years, the aforesaid impugned order came to be Page 2 of 6 C/SCA/21762/2005 JUDGMENT passed by the respondent on the ground that they were not entitled to the higher payscale since they were not possessing the educational qualification at the relevant point of time and therefore, the higher grade has been wrongly granted and the difference in the salary was ordered to be recovered by the impugned order. Under the circumstances, the petitioners have preferred the present petitions before this Court.
5. I have heard Mr. Mishra for the petitioners and Ms. Maya Desai has appeared for Mr.M.D.Pandya for the respondent.
6. It is an undisputed position that the payscales were revised by the competent authority at the relevant point of time much prior to the date of retirement and if the period is roughly considered, it is in any case more than 2 years in every case. It is not on account of any misrepresentation on the part of any of the petitioners that the higher payscale was granted. The higher payscale already granted to the respective petitioners are withdrawn on account of the fact that the petitioners concerned were not possessing the requisite educational qualification for the higher pay scale. It is also an admitted position that the respective petitioners were working as Peons, which is ClassIV category. It is also an admitted position that the respective petitioners Page 3 of 6 C/SCA/21762/2005 JUDGMENT had already retired more than 2 years back and thereafter, the order of recovery has been passed.
7. In my view, the issue is no more res integra and the legal position on the aspect of recovery on the ground which cannot be attributed to the employee concerned is settled by the decision of the Apex Court in the case of State of Punjab vs. Rafiq Masih reported at 2014(14) SCALE 300, wherein the Apex Court has summarised the case where the recovery is impermissible. Paragraph 12 of the aforesaid decision, which includes the concluding observation, reads as under:
"12. 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 ClassIII and ClassIV 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 Page 4 of 6 C/SCA/21762/2005 JUDGMENT 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."
8. If the facts of the present cases are examined in light of the above referred decision of the Apex Court, condition no.1 is satisfied inasmuch as the petitioners were working as Peon which is a class IV service of the respondent. Further, condition no.2 is also satisfied that the recovery from the retired employee is impermissible.
9. Ms. Desai, learned counsel appearing for the respondent attempted to contend that similar recovery orders were passed in respect of large number of employees who were not holding the qualification and they have accepted the order but the petitioners have challenged the said order and therefore, it was submitted that if the recovery is made impermissible, it may create further complications.
10. In my view, such contention cannot be countenanced for the simple reason that when the issue is already covered by the above referred decision of the Apex Court and the recovery orders cannot be sustained in the eye of law, Page 5 of 6 C/SCA/21762/2005 JUDGMENT they would be required to be quashed and set aside. Whether other employees have accepted or not would not be a ground to deny the relief to the petitioners when the highest Court of the land has already taken such view which supports the case of the petitioners. Hence, the said contention cannot be accepted.
11. In view of the aforesaid, when the issue is already covered by the above referred decision of the Apex Court, the impugned orders for recovery of the amount of difference of the payscale from AnnexureA to AnnexureE cannot be sustained in the eye of law. Hence, they deserve to be quashed and set aside and are quashed and set aside.
12. Mr.Mishra, learned counsel appearing for the petitioners submitted that the recovery is already effected. Hence, when the impugned orders are quashed and set aside, it is further directed that the amount already recovered pursuant to the impugned order shall be refunded to the petitioners within a period of four weeks from the receipt of the order of this Court.
13. Petitions are allowed to the aforesaid extent.
Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) bjoy Page 6 of 6