Gujarat High Court
Punamkumar Bhojwani vs Administrative Officer Nagar Primary ... on 16 September, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8824/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8824 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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PUNAMKUMAR BHOJWANI....Petitioner(s)
Versus
ADMINISTRATIVE OFFICER NAGAR PRIMARY EUCATION COMMITTEE &
2....Respondent(s)
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Appearance:
MR ANAND B GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR BB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR RB GOGIA, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 2
MS ASMITA V PATEL, ADVOCATE for the Respondent(s) No. 1 , 3
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/09/2015
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C/SCA/8824/2011 CAV JUDGMENT
CAV JUDGMENT
1 By this writ petition under Article 226 of the Constitution of India, the petitioner - a retired Teacher, has prayed for the following reliefs:
"8(A) Your Lordships may be pleased to admit the present petition.
(B) Your Lordships may be pleased to issue an appropriate writ, direction or order and to declare quash and set aside the impugned order dated April 26, 2011 (26.04.2011) which is annexed at Annexure"A"
herein before and the respondent(s) may please be restrained from implementing & acting upon the impugned order.
(C) Lordships may please direct the respondents to release the amount of Gratuity and other amounts with held from pension amount paid less to her etc. her with interest at the rate of 12% from the date of her retirement till paid to her.
(D) Pending admission, till the final disposal of this petition Your Lordships may be pleased to direct the respondent(s) by way of the interim relief to not to implement and act upon the impugned order dated April 26, 2011 (26.04.2011) at Annexure"A" and not to withhold or recover any amount as mentioned therein and / or from her pensionary amount.
(E) Your Lordships be pleased to pass any other and further orders as may be deemed fit and proper by this Hon'ble Court in the interest of justice."
2 The facts in this case may be summarized as under:
2.1 The petitioner was serving as an Assistant Teacher in the Primary School run by the respondent No.3. She was permitted to retire voluntarily, with effect from 31.07.2004, vide order dated 27.07.2004, passed by the respondent No.1. The petitioner worked as an Untrained Teacher between 01.12.1969 and 16.06.1987. Thereafter, she acquired the necessary qualifications as a Trained Teacher. On becoming a Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT Trained Teacher, the petitioner was placed in the payscale of Rs.1,200 2040. At the time of preparing the pension papers pursuant to the voluntary retirement of the petitioner, the respondent No.2 passed the impugned order dated 14.07.2004, whereby the petitioner was informed that the first higher grade given to her from 16.06.1987, in the payscale of Rs.1,4002,600, was irregular and the same was required to be cancelled and recovery be made from her. Pursuant thereto, a consequential order dated 21.07.2004 was passed by the respondent No.1, whereby the payscale of the petitioner was refixed and recovery to the tune of Rs.2,21,598/(Rupees Two Lacs Twenty One Thousand Five Hundred Ninety Eight) was directed to be made from the gratuity amount of the petitioner. Aggrieved thereby, the petitioner has approached this Court by filing the present petition.
3 It appears that the first order dated 21.07.2004, referred to above, passed by the respondent No.1, whereby, the pay scale of the petitioner was revised and recovery to the tune of Rs.2,21,598/ was made the subject matter of challenge before this Court by filing the Special Civil Application No.3096 of 2005. Vide order dated 19.01.2011, the said petition was disposed of in the below mentioned terms:
"6. Upon the above statement being made by the learned Assistant Government Pleader and learned advocate for respondent No.1, the following order is passed:
(a) In the peculiar facts and circumstances of the case, respondent Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT No.1 shall give the petitioner an opportunity of hearing. The Officer of respondent No.2 shall also be present at the time of such composite hearing.
(b) The time and date on which the petitioner and respondent No.2 are to be present for the hearing, shall be intimated by respondent No.1 to them.
(C) After granting the petitioner an opportunity of hearing, respondent No.1 shall pass a fresh order regarding the pay fixation of the petitioner. As a consequence thereof, the impugned orders dated 14.07.2004 and 21.07.2004 passed by respondents Nos.2 and 1 respectively would not survive and are therefore, quashed and set aside.
It is clarified that while passing the order, the Court has not entered into the merits of the case. This order has been passed in the peculiar facts and circumstances of the case and shall not be treated as a precedent.
4 Pursuant to the order passed by this Court, referred to above, the impugned order dated 26.04.2006 came to be passed which is made the subject matter of challenge in this petition.
5 Mr. Gogia, the learned advocate appearing for the petitioner submitted that his client should not be held responsible, in any manner, for the discrepancy as regards the appropriate pay scale to which she was entitled to draw. He submitted that his client had neither misrepresented or played any fraud so that it could be argued that the respondent department was misled by the same. He submitted that after retirement, the decision to recover the amount could be termed as extremely harsh and erroneous.
Page 4 of 14HC-NIC Page 4 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT 6 In such circumstances, referred to above, he prays that this petition may be allowed and the impugned order be quashed.
7 On the other hand, this writ petition has been vehemently opposed by Mr. Rohan Yagnik, the learned Assistant Government Pleader appearing for the respondent State. He has placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.1:
"4. It is respectfully submitted that as per the order dated 1912011 passed by this Hon'ble Court (Coram: Shri miss Abhilashakumari J) in SCA No.3096 of 2005 the petitioner has given a personal hearing on 11 42011 by the respondent authority. Therefore sufficient opportunity was given to the petitioner to represent her case and Rojkam is also prepared. The copy of the Rojkam is annexed here is with marked as Annexure R1.
5. It is respectfully submitted that after given the opportunity of hearing, the respondent authority has passed an order dated 26411 and in the said order the respondent authority has given the payscale for which the petitioner was entitled to get at the different dates. I respectfully submit that after detail calculation the respondent authority has order to recover the excess amount paid to the petitioner. The copy of the order dated 26411 is annexed here with marked as Annexure R2.
6. It is respectfully submitted that on 3042004 the petitioner has given an application for voluntary retirement with effect from 3172004. It is pertinent to note that before the voluntary retirement becomes effective the petitioner has given an application dated 1572004 in which she has given consent to recover the amount. The application dated 157 2004 is annexed here with marked as Annexure R3.
7. In view of this clear undertaking given by the petitioner, it can be said that petitioner was well aware that her pay is wrongly fixed at higher grade and she is not entitled for the pay scale which was given to her, and due to this reason only she gave an undertaking to recover the excess amount paid to her after refixation of the payscale. I respectfully submit that undertaking has not given with objection or under protest but given a Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT clear willful consent for refixation of the payscale and to recover the excess amount paid to the petitioner. I further submit that after giving such type of undertaking the petitioner has no right to challenge the decision regarding refixation of the payscale. The Judgment sited by the petitioner are not applicable to the present case, as in the present case there is clear consent of the petitioner to revise the pay scale and to recover the excess amount paid to her. In view of this the order passed by the authority is quit correct and legal. I respectfully submit that when the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances order for recover of the amount paid in excess.
8. It is respectfully submitted that the respondent is corporate body and working for the welfare of the public at large, hence if any amount paid excess to the petitioner may be the loss to the general public. It is pertinent to note that there are other cases also in which rectification of the payscale has taken place, in case of any mistake in calculation or interpretation of the government resolution. It is fundamental principal that any mistake can be corrected at subsequent stage as and when it comes in to the notice of the competent authority. The petitioner has failed to prove how the refection of pay scale is wrong recover the excess amount paid to her and to refixed the other retirement benefits.
9. I respectfully state that in view of the above legal position, looking to the undertaking given by the petitioner, the petitioner is not entitled to insist for any payment. I respectfully submit that the petitioner has no right to get the excess amount."
8 In such circumstances, referred to above, Mr. Yagnik, prays that there being no merit in this writ petition, the same be rejected.
9 It appears that while issuing Rule in this matter, the following order dated 15.06.2012 was passed:
"The amount lying with the respondents by way of recovery from the gratuity and other retiral benefits of petitioner will be retained by the respondents. It is, however, clarified that it shall be open to this court to grant interest on the amount of recovery retained by the respondents at the relevant rate of interest prevailing under the Gratuity Act in case the Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT petitioner finally succeeds in the matter."
10 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the respondent No.1 - the Nagar Primary Education Committee committed any error in passing the impugned order.
11 It appears that the learned Assistant Government Pleader is banking more on the socalled consent given by the petitioner in writing vide application dated 15.07.2004 Annexure: "R3" to this petition.
According to Mr. Yagnik, the petitioner was well aware that her pay had been wrongly fixed and she was not entitled for the pay scale which she received during her employment.
12 It is not disputed by the respondents that there was no misrepresentation or any fraud played by the petitioner so far as the pay scale is concerned, but it was mistake on the part of the department in giving a particular pay scale which is now sought to be withdrawn with recovery of the excess amount. It is also not in dispute that the pay fixation was approved by the Legal Audit Department at the relevant time. The copy of the relevant page of the service book approving the same by the Legal Audit Department has been placed on record as Annexure: "L" to the rejoinder filed by the petitioner to the reply of the Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT respondent. It is only on account of the order dated 01.02.2002 passed by the Finance Department that the pay of the petitioner came to be revised and reduced with retrospective effect. This action was taken after a period of 10 years.
13 In my view, the statement in writing made in the application dated 15.07.2004 filed by the petitioner for voluntary retirement as regards the fixation of the appropriate pay scale should not be construed as an admission on the part of the petitioner that she was given a higher pay scale to which she was otherwise not entitled to. In any view of the matter, the petitioner is a retired Teacher. She took voluntary retirement way back in the year 2004. It appears that on account of this litigation, her gratuity amount has been withheld.
14 This issue is substantially covered by the recent pronouncement of the Supreme Court in the case of State of Punjab and others v. Rafiq Masih reported in (2015) 4 SCC 334. I may quote the observations made in paras 11 to 18:
"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.
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, wherein this Court recorded the following observation in paragraph 58:Page 8 of 14
HC-NIC Page 8 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT "58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Ganga Ram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v.
State of Bihar, Punjab National Bank v. Manjeet Singh, and Bihar SEB v. Bijay Bahadur." (emphasis is supplied)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India, wherein Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT this Court observed as under:
"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." (emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the payscale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis supplied) Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT A perusal of the aforesaid observations made by this Court in B.J. Akkara's case reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. ClassIII and ClassIV sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
(emphasis supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case, that Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220550 to which the appellant was entitled became Rs 7001600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 7001600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. Plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis supplied) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.7001600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class MA, MSc, MCom plus a first or second class BLib Science or a Diploma in Library Science, the degree of MLib Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case, a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
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 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 Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Sep 17 02:24:06 IST 2015 C/SCA/8824/2011 CAV JUDGMENT 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."
15 In the result, this petition is allowed. The impugned order dated 26.04.2011 is hereby ordered to be quashed and set aside. The respondents are directed to release the amount towards the gratuity and other retiral benefits and pay the same to the petitioner within a period of four weeks from the date of receipt of the writ of this order. So far as the prayer to pay the amount of gratuity and other retiral benefit with interest at the rate of 12% is concerned, the same is rejected in view of the order passed by this Court at the time when rule was issued, referred to above. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) chandresh Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Sep 17 02:24:06 IST 2015