Gujarat High Court
Gujarat State Rural Development ... vs Sureshbhai Mavjibhai Patel on 28 March, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/282/2024 ORDER DATED: 28/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 282 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 19668 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/LETTERS PATENT APPEAL NO. 282 of 2024
With
R/LETTERS PATENT APPEAL NO. 283 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 19651 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 283 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19651 of 2021
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R/LETTERS PATENT APPEAL NO. 284 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 19665 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 284 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19665 of 2021
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R/LETTERS PATENT APPEAL NO. 285 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19674 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 285 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19674 of 2021
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R/LETTERS PATENT APPEAL NO. 286 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19638 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 286 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19638 of 2021
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R/LETTERS PATENT APPEAL NO. 288 of 2024
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NEUTRAL CITATION
C/LPA/282/2024 ORDER DATED: 28/03/2024
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In
R/SPECIAL CIVIL APPLICATION NO. 19679 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 288 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19679 of 2021
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R/LETTERS PATENT APPEAL NO. 289 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19688 of 2021
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 289 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19688 of 2021
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R/LETTERS PATENT APPEAL NO. 290 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19663 of 2021
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 290 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19663 of 2021
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R/LETTERS PATENT APPEAL NO. 291 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19676 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 291 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19676 of 2021
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R/LETTERS PATENT APPEAL NO. 292 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19671 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 292 of 2024
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R/LETTERS PATENT APPEAL NO. 293 of 2024
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NEUTRAL CITATION
C/LPA/282/2024 ORDER DATED: 28/03/2024
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R/SPECIAL CIVIL APPLICATION NO. 19687 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 293 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19687 of 2021
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R/LETTERS PATENT APPEAL NO. 294 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19682 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 294 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19682 of 2021
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R/LETTERS PATENT APPEAL NO. 295 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19666 of 2021
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 295 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19666 of 2021
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R/LETTERS PATENT APPEAL NO. 296 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19681 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 296 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19681 of 2021
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R/LETTERS PATENT APPEAL NO. 297 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19660 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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NEUTRAL CITATION
C/LPA/282/2024 ORDER DATED: 28/03/2024
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 298 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19657 of 2021
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R/LETTERS PATENT APPEAL NO. 299 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19661 of 2021
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 299 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19661 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 19685 of 2021
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 300 of 2024
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R/LETTERS PATENT APPEAL NO. 301 of 2024
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19658 of 2021
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
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NEUTRAL CITATION
C/LPA/282/2024 ORDER DATED: 28/03/2024
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
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R/LETTERS PATENT APPEAL NO. 303 of 2024
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R/SPECIAL CIVIL APPLICATION NO. 19654 of 2021
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GUJARAT STATE RURAL DEVELOPMENT CORPORATION LTD Versus SURESHBHAI MAVJIBHAI PATEL & ORS.
================================================== Appearance: LPA Nos. 282, 283, 284, 285, 286 of 2024) MR HS MUNSHAW(495) for the Applicant(s) No. 1 for the Respondent(s) No. 1,3 MR ROHAN SHAH ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2 Appearance: (LPA Nos. 288, 289, 290, 291, 292, 293 of 2024) MR HS MUNSHAW(495) for the Applicant(s) No. 1 for the Respondent(s) No. 1,3 MR SANJAY UDHWANI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2 Appearance: (LPA Nos. 294, 295, 296, 297, 298 of 2024) MR HS MUNSHAW(495) for the Applicant(s) No. 1 for the Respondent(s) No. 1,3 MS SHRUTI DHRUVE ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2 Appearance: (LPA Nos. 299, 300, 301, 302, 303 of 2024) MR HS MUNSHAW(495) for the Applicant(s) No. 1 for the Respondent(s) No. 1,3 MS ROSHNI PATEL ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2 ================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE PRANAV TRIVEDI Date : 28/03/2024 ORAL COMMON ORDER (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Heard Mr. H.S. Munshaw, learned advocate for the appellant.
2. In light of the fact that we have heard learned advocate Mr. Munshaw, on merits, we deem it fit not to issue notice to the Page 5 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined respondents and condone the delay in filing the appeals. The appeals are taken up for hearing.
3. All these appeals arise out of a common issue considered by the learned Single Judge by orders passed on 19.10.2023. 3.1.. We have taken up the appeal filed by the Gujarat State Rural Development Corporation Limited filed against the respondent - Hapani Bhupatbhai Raysangbhai, who was the original petitioner of Special Civil Application No. 19651 of 2021. The original petitioners before the learned Single Judge were employees of the Gujarat State Rural Development Corporation Limited. On the State extending the benefits of 6 th Pay Commission to its employees with effect from 01.01.2006, the appellant - Corporation being under the State decided to give revision of pay in accordance with the 6th Pay Commission with effect from 01.01.2006. The appellant - Corporation however, decided that for the period from 01.01.2006 to 01.01.2008 the employees will not be entitled to any arrears. Based on the pay revision, pay fixation was done in case of the employees/private respondents/original petitioners and benefits accordingly were extended to them.
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3.2. In the year 2016, it appears that the State Government disapproved fixation of pay in accordance with the 6th Pay Commission to the employees of the Corporation on the ground that benefits ought to have been paid with effect from 01.01.2009 and not from 01.01.2006. Recoveries were made which resulted in the employees coming before this Court challenging the orders of the recovery. The learned Single Judge allowed the petitions. Hence, these appeals.
4. Mr. H.S. Munshaw, learned advocate appearing for the appellant - Corporation would submit that, before the learned Single Judge in an affidavit-in-reply filed by and on behalf of the Corporation, it was clearly pointed out that though the Board of Directors of the Gujarat State Rural Development Corporation Limited passed a Resolution in its Meeting No. 134 held on 08.06.2009 to grant benefits of revision of pay as per the recommendations of the 6th Pay Commission to its employees with effect from 01.01.2006, and requested the Government to approve the same. However, the Government passed Resolutions dated 06.02.2016 and 08.02.2016 permitting the Corporation to release the benefits with effect from 01.01.2009. It was therefore, the case of the Corporation before the learned Single Judge that having Page 7 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined inadvertently granted the benefits of revision with effect from 01.01.2006, since the Government approved the same only from 01.01.2009, it was decided to recover the actual benefits which were paid with effect from 01.01.2006, from the respondents. 4.1. Learned advocate Mr. Munshaw would submit that the learned Single Judge committed error in relying on the decision of the Hon'ble Apex Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC
334. He would press into service a decision in the case of High Court of Punjab & Haryana & Ors., v. Jagdev Singh reported in 2016 (14) SCC 267 and submit that post the decision in the case of Rafiq Masih (supra), the Hon'ble Apex Court has permitted recoveries to be made in case such payments are made on account of mistake, especially when such benefits had been given to the employees and when such employees had given an undertaking that the amount that is paid to them is open to be recovered. Reliance was also placed on the decision of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal & Ors., v. State of Uttrakhand & Ors., reported in 2012 (8) SCC 417 to submit that whenever revision of pay and benefits are given by mistake, it is open for the employer to correct such mistake and recover the Page 8 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined amounts.
5. Having considered the submissions made by the learned advocate Mr. Munshaw for the appellant, perusal of the order of the learned Single Judge would indicate that based on the decision of the Hon'ble Apex Court in the case of Rafiq Masih (supra), the learned Single Judge set aside the recovery on the parameters that are set out in paragraph 18 of the decision in the case of Rafiq Masih (supra), which the learned Single Judge has reproduced in paragraph 7.1. of the decision. We, therefore, deem it fit to reproduce paragraphs 7.1. and 8 of the order of the learned Single Judge, which read as under :-
"7.1. It also appears that most of the petitioners were working in Class-3/ Class-4 posts. Thus, the issue is stand covered by directions no.1 and 2 of paragraph no.18 of the decision of Rafiq Masih (supra). Paragraph no.18 is quoted herein below for benefit:-
"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 Page 9 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined 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.
(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. Considering the law laid down by the Hon'ble Apex Court, there does not appear to be any dispute as regards the fact that the amount recovered from the retiral dues of the petitioners are required to be returned back."
6. As far as argument of learned counsel for the appellant that in light of the decision in the case of Jagdev Singh (supra) it is open for the employer to recover the amounts when an undertaking is given, perusal of the affidavit-in-reply filed by the appellant would indicate that it was not the stand of the Corporation that the benefits of revision of pay were given conditionally on the respondent employees giving an undertaking that in the event a mistake is found, the same shall be recovered. Even the orders granting the benefit which are placed on record dated 22.03.2016 do not record this fact of the employees being Page 10 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined given such a benefit conditionally on an undertaking. This therefore would be an argument of the learned counsel for the appellant, relying on the decision in the case of Jagdev Singh (supra) being without merit.
6.1. Even otherwise, the decision in the case of Jagdev Singh (supra) would not be applicable, as on facts here the amounts were paid without any undertaking being sought from the employees.
7. Reliance being placed on the decision in the case of Chandi Prasad Uniyal (supra) also is without merit as the decision in the case of Rafiq Masih (supra) considered the law on the question of recovery including that in the case of Jagdev Singh (supra) and the Hon'ble Apex Court after having examined the decisions rendered by it was of the view that the orders passed by the employer seeking recovery of monetory benefits wrongly extended to the employees can only be interfered with in cases where such recovery would result in hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. Paragraphs 7 to 11 of the said decision in the case of Rafiq Masih (supra) need to be reproduced which are as under :- Page 11 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024
NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined "7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can Page 12 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters."
8. It was in the background of these facts that the Hon'ble Apex Court in the case of Rafiq Masih (supra) in paragraph 18 set out the cases where recoveries could not be made. Paragraph 18 of the decision in the case of Rafiq Masih (supra) as already been reproduced by the learned Single Judge in paragraph 7.1. which Page 13 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024 NEUTRAL CITATION C/LPA/282/2024 ORDER DATED: 28/03/2024 undefined we have so reproduced in the earlier part of this judgment.
9. Admittedly in the facts of this case it is not disputed that recoveries were sought to be made at the fag end of the employees career when they were retiring and their terminal benefits were withheld and the amounts were sought to be recovered from their retirement benefits. As far as the question of the applicability of the case in the decision in the case of Jagdev Singh (supra), the Hon'ble Apex Court had categorically stated the principle; a recovery can be made when an undertaking has been given apply to the proposition (ii) in the case of Rafiq Masih (supra). In other words, where employees had given an undertaking that they would refund the amounts if found to be excess, was a principle that would apply in the case of Rafiq Masih (supra), where recovery was sought to be made from the retired employees or employees who are due to retire within one year of the order of recovery. On the facts of the present case, we are of the opinion that (i) of the case of Rafiq Masih (supra), which dealt with recovery from the employees belonging to Class-III would apply and even otherwise therefore, irrespective of the position of an undertaking, the case of Jagdev Singh (supra) on the facts of the present case would not apply.
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10. In light of the fact that the argument of learned counsel for the appellant was on the aspect of the validity and legality on the question of recovery only, we not only confirm the orders passed by the learned Single Judge, but uphold the directions which have been followed in paragraph 9 of the order.
10.1. At the outset, learned advocate Mr. Munshaw requests that time to comply with the direction of the learned Single Judge be extended. Looking to the financial burden that the appellant may have to undertake in view of complying with the order of the learned Single Judge, we direct appellant - Corporation that orders of the learned Single Judge shall be complied with no later than 01.05.2024.
11. For all the aforesaid reasons, the appeals are accordingly dismissed.
Consequently, the connected Civil Applications for stay also stand disposed of.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) phalguni Page 15 of 15 Downloaded on : Fri Apr 12 22:47:14 IST 2024