Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs Yusuf Ali Khan on 16 May, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.4593/2014 Rajasthan State Road Transport Corporation & anr. Vs. Yusuf Ali Khan Judgment reserved on 28/04/2014 Judgment pronounced on 16/05/2014 P R E S E N T HON'BLE MR. JUSTICE J.K. RANKA Mr. Alok Chaturvedi, for the petitioners.
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1. Instant writ petition has been filed by the defendant-petitioners assailing the order dt.23/12/2013 passed by the Appellate Court dismissing the Civil Misc. Appeal No.16/2013 filed by the defendants-petitioners; upholding the order dt.03/09/2013 passed by the trial court, by which the trial court, in a suit filed by the plaintiff-respondent for declaration, permanent and mandatory injunction, while partly allowing the application filed by the plaintiff-respondent under Order 39 Rule 1 & 2 read with Sec. 151 CPC, directed the defendants-petitioners to compute the retiral benefits and pay the same to the plaintiff-respondent within a period of three months subject to the decision of the main suit. It was further directed by the trial court that the defendants-petitioners will not recover the money earlier paid to the plaintiff-respondents but at the same time it was also made clear that defendants-petitioners will be free to rectify the mistake and accordingly make refixation of pay of the plaintiff-respondent & make payment of his retiral benefits.
2. The brief facts, as can be gathered on perusal of the material on record including the orders impugned and after hearing counsel for the defendants-petitioners, are that a civil suit came to be filed by the plaintiff-respondent before the trial court for declaration, permanent and mandatory injunction against the defendants-petitioners stating therein that he was initially appointed on the post of LDC vide order No.2246 dt. 01/11/1975 in the defendants-petitioners (corporation) and thereafter confirmed on the said post vide order dt.01/10/1977. The plaintiff-respondent submitted an application dt.28/09/2012 seeking voluntary retirement before the defendant-corporation which was accepted and vide order No.7917 dt.19/12/2012, he was ordered to be retired voluntarily w.e.f. 31/12/2012. It was further stated that since the State Government issued a circular/notification dt.25/01/1992 for according benefit of selection grade on completion of 9, 18 and 27 years of service, the defendant-corporation also issued orders for awarding benefit under the said notification dt.25/01/1992 to its employees and accordingly the plaintiff-respondent was also granted the benefit of first, second and third selection grade w.e.f. 25/01/1992, 11/01/1994 and 11/01/2005 respectively and his pay fixation was also made accordingly.
3. It was further stated that despite accepting voluntary retirement, the defendant-corporation did not pay retiral benefits in-spite of repeated requests made and on the contrary issued an order No.1486 dt. 05/03/2013, by which, while cancelling/withdrawing the earlier order of granting selection grade to the plaintiff-respondent, the first selection grade on completion of 9 years of service was granted w.e.f. 26/02/1997 in place of 25/01/1992; second selection grade on completion of 18 years of service w.e.f. 26/12/2009 in place of 11/01/1994 and thereafter vide order No.2247 dt. 25/04/2013 refixation of pay was made and salary of the plaintiff-respondent was fixed at Rs.17,140/- in place of 22,000/- and in such circumstances, finding no alternative, this action of the defendants-petitioners was challenged by the plaintiff-respondent by filing the suit, referred to supra.
4. In the suit, a second application seeking temporary injunction under Order 39 Rule 1 & 2 read with Sec. 151 CPC was submitted by the plaintiff-respondent wherein the trial court passed temporary injunction on 03/09/2013 thereby directing the defendants-petitioners to compute the retiral benefits and pay the same to the plaintiff-respondent within a period of three months subject to decision of the main suit and it was further directed by the trial court that the defendants-petitioners will not recover the money earlier paid to the plaintiff-respondents but at the same time it was also made clear that the defendants-petitioners will be free to rectify the mistake and accordingly make refixation of pay of the plaintiff-respondent and make payment of his retiral benefits accordingly.
5. The aforesaid order dt. 03/09/2013 passed by the trial court came to be challenged by the defendants-petitioners before the lower appellate court by filing a Civil Misc. appeal bearing No.16/2013 and at the same time, the plaintiff-respondent also preferred a Civil Misc. Appeal bearing No.13/2013 before the lower appellate court assailing the same order dt.03/09/2013 passed by the trial court to the extent the trial court left the defendants-petitioners free to rectify the mistake and to make refixation of pay of the plaintiff-respondent.
6. Both the Civil Misc. Appeals, referred to supra, came up before the lower appellate court and the lower appellate court passed a common order dt.23/12/2013 by which both the appeals were dismissed and the order passed by the trial court was upheld and at the same time, the defendants-petitioners were directed to make payment of retiral benefits and pension to the plaintiff-respondent within a period of ten days. Hence, instant writ petition has been filed by the defendants-petitioners assailing both the orders passed by the courts below.
7. Counsel for the defendants-petitioners submitted that both the courts below were not justified in passing the orders impugned. He further contended that the orders impugned, if complied with, will result into grant of final relief while the main suit is still pending and the important issues are to be decided by the trial court and if the relief, sought for by the plaintiff-respondent in the garb of interim relief, is granted to him, the defendants-petitioners would be remedyless in case they succeed in the main suit and in such circumstances, they would not be able to recover the amount, if paid to the plaintiff-respondent under the orders impugned passed by the courts below.
8. Heard the ld. counsel for the defendants-petitioners and carefully perused the material available on record so also the orders impugned passed by the courts below. In my humble view, both the courts below have concurrently decided the temporary injunction application moved by the plaintiff-respondent and partly allowed the same. In the facts and circumstances of the case, the impugned orders appear to be just and proper In my view, the trial court, after taking into consideration the three important ingredients namely; prima-facie case, balance of convenience and irreparable loss, has rightly found the same in favour of the plaintiff-respondent. The defendants-petitioners, have also been left free to make refixation of pay of the plaintiff-respondent after rectification and accordingly compute his retiral benefits and make the payment of the same including pension. Thus, there appears no adversity or impropriety in the same. So far as the main suit is concerned, the main issue, as to whether the defendants-petitioners could have withdrawn the benefit of selection grade earlier granted to the plaintiff-respondent and whether they were justified in granting the same from a later date, has to be adjudicated by the trial court after analysis of leading evidence without being influenced by the observations made in the decisions of the Temporary Injunction Applications and, as such, it cannot be said that the interim relief granted by the trial court vide as affirmed by the lower appellate court in any manner affect the ultimate decision of the main suit. As regards the contention of counsel for the defendants-petitioner that they would not be able to recover the amount earlier paid to the plaintiff-respondent in excess, suffice to say that they themselves have come out with a case that the excess payment has been made to the plaintiff-respondent by them by mistake which, being a human error, can be rectified and the trial court accordingly left them free to make refixation of pay of the plaintiff-respondent but so far as the recovery of the excess payment made is concerned, the trial court, after taking into consideration various case laws, cited before it, has come to a finding that it is the mistake of the defendants-petitioners themselves and there appears no misrepresentation or fraud on the part of the plaintiff-respondent and in such circumstances, the defendants-petitioners were restrained from recovering amount of excess payment made to the plaintiff-petitioner during his service tenure. That apart, the trial court has also arrived at a finding that the plaintiff-respondent was not given an opportunity of hearing before the defendants-petitioners passed the order of withdrawal of the benefit of selection grade earlier granted to plaintiff-respondent and in such circumstances, the trial court as well as the lower appellate court concurred in partly allowing the second temporary injunction application moved by the plaintiff-respondent.
9. In my view, the finding arrived at by both the courts below, being a concurrent finding of fact and there being no apparent manifest error in the orders impugned passed by both the courts below, this Court, under its limited scope of judicial review under Article 227 of the Constitution of India, is not inclined to interfere.
10. The Hon'ble Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and ors., reported 2003(6) SCC 675, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:-
Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise the jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
11. Consequently, the writ petition, being devoid of merit, deserves to be dismissed with a direction to the trial court that the main suit may be disposed of within a period of six months from the receipt of this order. With these directions, the writ petition stands dismissed and accordingly the stay application also stands dismissed.
[J.K. RANKA],J.
Raghu/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Raghu/Sr.PA