Bombay High Court

Vijaykumar Bhaurao Amale vs Maha. State Electricity Transmission ... on 8 May, 2025

Author: Avinash G. Gharote

Bench: Avinash G. Gharote

2025:BHC-NAG:4918-DB




                                                      1                                  wp5375.2018..odt


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    NAGPUR BENCH AT NAGPUR

                                         WRIT PETITION NO. 5375 OF 2018

                   Vijaykumar Bhaurao Amale,
                   aged about 60 yrs,
                   Occ. Retd. Addl. Executive
                   Engineer (Civil) M.S.E.T.C.L.)
                   r/O. Plot No. 33-B, Ashiyad Colony,
                   Near Hanuman Mandir, Shegaon Naka,
                   Amravati - 444 604                                                   ......PETITIONER

                                  ...V E R S U S...

                   1. Maharashtra State Electricity
                   Transmission Co. Ltd. (MSETCL)
                   Through its Chairman cum Managing
                   Director, Prakashganga, 7th Floor,
                   Bandra Kurla Complex, Bandra (East)
                   Mumbai 400 051

                   2. Chief General Manager (H.R.)
                   Maharashtra State Electricity
                   Transmission Co. Ltd (MSETCL)
                   Prakashganga, 7th Floor,
                   Bandra Kurla Complex, Bandra (East)
                   Mumbai 400 051

                   3. Chief Engineer
                   Maharashtra State Electricity
                   Transmission Co. Ltd (MSETCL)
                   Dafareen Hospital Road,
                   Old Power House
                   Amravati 444 603                                                   .....RESPONDENTS
                   ---------------------------------------------------------------------------------------------
                   Mr. Sachin Khandekar, Advocate for the petitioner.
                   Mr. D.M. Kale, Advocate for respondent Nos. 1 to 3.

                   CORAM:- AVINASH G. GHAROTE, &
                           ABHAY J. MANTRI, JJ.
                              2                      wp5375.2018..odt


DATE :08.05.2025

JUDGMENT (Per: Abhay J. Mantri, J.)

Heard. Rule. Heard finally with the consent of learned

counsel for the parties.

2. The petition questions order dated 30.05.2018, passed by

respondent No 2 - Chief General Manager (HR), Maharashtra State

Electricity Transmission Company Limited (MSETCL), thereby

holding that the petitioner is not entitled for terminal benefits and

increments for the period for which he was out of service as they

doesn't fall under the definition of Regulation 10 of the Rules of

respondent No. 2 and also seeks direction to the respondents to

forthwith release the balance amount of gratuity, leave encashment

and other terminal benefits which are due and payable. By way of

amendment, he further seeks direction against the respondents to

pay an amount of Rs. 16,18,858/- with interest @ 10% p.a.

3. Factual matrix:

(i) On 11.12.1981, the petitioner was appointed as a Junior

Engineer (Civil) at the Yavatmal office of respondent No. 2

Company. On 15.05.2010, he was promoted to Assistant Engineer 3 wp5375.2018..odt

(Civil) and posted at Jalgaon. On 02.08.2013, he was further

promoted to Deputy Executive Engineer (Civil). On superannuation,

he retired from service on 31.10.2016 as Additional Executive

Engineer (Civil) from the Amravati office.

(ii) During the service, an offence under Section 306, 498-A

of the Indian Penal Code was registered against him. After the

conclusion of the trial, the learned 2nd Addl. Sessions Judge

convicted him in Sessions Trial No. 57/1991. The petitioner

challenged the judgment before this Court vide Criminal Appeal No.

69/2000, wherein he was acquitted vide judgment and order dated

08.02.2006.

(iii) On conviction dated 28.02.2000, his services were

terminated by the respondents vide order dated 25.05.2000. On

acquittal, the petitioner was reinstated in service vide order dated

19.01.2007 passed by the General Manager (HR). However, the

respondent did not grant back wages to him from the date of

termination till the date of reinstatement on the ground of " no

work, no pay".

4. Aggrieved by the order dated 19.01.2007, the petitioner

has preferred Writ Petition No. 39/2009 before this Court. This 4 wp5375.2018..odt

Court vide judgment and order dated 17.03.2009 observed that the

petitioner has made out a case for grant of back wages and directed

to pay back wages from the date of order of acquittal on 08.02.2006

till the date of reinstatement, i.e. 19.01.2007. Thereafter, the

Executive Engineer, Wardha vide order dated 20.11.2007, made the

pay fixation of the petitioner for the period from 01.04.1999 to

01.04.2007. The said period includes the period when the petitioner

was out of service because of his conviction in a criminal case.

While fixing the pay, the petitioner was granted notional increments

for the period from 01.04.1999 to 01.04.2007, and an actual

increment in cash was not given. The Chief Engineer approved the

said order of pay fixation. Similarly, on 15.05.2010, he was

promoted to the post of Assistant Engineer (Civil), and after his

promotion, he was granted a higher grade pay for completing 28

years of service. Likewise, vide order dated 19.03.2015, his

application for the grant of 1/3rd amount from gratuity was allowed.

5. After his retirement on 31.10.2016, the amount of

gratuity was not paid to him. Therefore, he made a representation

to the respondents for the release of the same. Respondent No. 3

sought guidance from Respondent No. 2 regarding the period when 5 wp5375.2018..odt

the petitioner was out of service. Respondent No. 2 vide

communication dated 13.04.2017 intimated Respondent No. 3 that

the period for which the petitioner was out of service should be

calculated for payment of gratuity, but the increments and other

monetary benefits paid to him on account of those increments

should be recovered from him. Aggrieved by the said

communication, the petitioner made a representation to respondent

No. 2 and requested that a decision be taken on his representation

and that the balance amount of gratuity be paid to him. However,

the respondent did not take any action/steps to release the balance

amount of the gratuity. The petitioner is not entitled to get a

monthly pension under the Maharashtra Civil Services (Pension)

Rules, as they do not apply to the employees of the respondent

company. Still, he is entitled to get a nominal pension of Rs. 2500/-

per month under the Employees' Pension Scheme, 1995, but the

same was not sanctioned.

6. The petitioner wholly depends on his terminal benefits,

i.e. the gratuity amount, leave encashment, etc. Respondent,

without considering the hardship caused to him, was proposing to

recover the excess payment made to him from the gratuity amount 6 wp5375.2018..odt

and leave encashment. Therefore, he preferred writ petition No.

5814/2017 to release the gratuity amount and other terminal

benefits during the pendency of the writ petition. The Manager

(HR), MSETCL, Amravati, on 13.10.2017, based on the

communication/order dated 13/04/2017, passed an order about

pay fixation of the petitioner. This Court vide order dated

26.02.2018 quashed and set aside the order dated 13.04.2017

issued by respondent No. 2 to recover the amount allegedly paid to

the petitioner in excess and directed the respondent company to

decide his representation. The petitioner appeared before

Respondent No. 2 and submitted his written submissions.

Respondent No. 2 vide order dated 30.05.2018 observed that the

petitioner was out of service for the period from 25.05.2000 to

07.02.2006. Therefore, he is not entitled to get increments for the

said period and was erroneously directed to recover the

overpayment made to the petitioner. Hence, the petitioner has

preferred this petition.

7. Mr. Khandekar, learned Counsel for the petitioner

vehemently contended that the petitioner retired from service on

31.10.2016 and after his retirement, order dated 30.05.2018 was 7 wp5375.2018..odt

passed by respondent No. 2 directing recovery of excess amount,

therefore, he urged that said order is arbitrary, illegal and contrary

to the mandate laid down in State of Punjab and Others vs. Rafique

Masih (2014)8 SCC 883 (Rafiq Masih) therefore, the same is liable to

be set aside. He further argued that vide order dated 20.11.2007,

his pay was fixed. The same was approved by the then Chief

Engineer, Nagpur and without considering the said facts, by order

dated 30.05.2018, re-pay fixation was made, which is contrary to

the rules, and therefore, he submitted that the same is not tenable

in the eyes of law.

8. To substantiate his contention, he has relied upon the

judgment in Rafiq Masih (supra) and urged that after lapse of 10

years of the initial pay fixation and after his retirement, the order

dated 30.05.2018 was passed contrary to the dictum laid down in

Rafiq Masih (supra) therefore, said order cannot be sustained in the

eyes of law and is liable to be quashed and set aside.

9. It is pertinent to note that on 27.06.2024, the respondent

has chosen not to contest the matter; therefore, this Court passed

the following order:

8 wp5375.2018..odt

"Since the respondents have chosen not to contest the matter, it would be appropriate for us to accept the contention of the learned counsel for the petitioner that an amount of Rs.

16,18,858/- is withheld by the respondents towards the gratuity.

2. The fact remains that gratuity is a statutory right, so also, the Hon'ble Apex Court in the matter of State of Jharkhand and Others..Vs.. Jitendra Kumar Srivastava and Another, reported in (2013) 12 SCC 210, has held that the gratuity is a constitutional right under Article 300-A of the Constitution.

3. In the aforesaid background, we are required to be sensitive to the fact that the gratuity attracts the interest @ Rs. 10% per annum, in case, if there is a delayed payment.

4. We hardly see any convincing reason, so as to prima facie infer that the respondents were armed with the power to withhold the amount of gratuity.

5. Since the petition is kept pending, we deem it appropriate to observe that the release of gratuity shall be subject to the final outcome of the petition. The petitioner shall furnish an undertaking to the effect that the amount of gratuity, if so required to be adjusted towards the compliance of the order impugned, the same shall be done with a reasonable rate of interest as shall be ordered by the Court."

10. However, after passing the said order, respondents have

filed a reply on 11.09.2024, and contended that termination order

dated 25.05.2000 was passed pursuant to Regulation 10 of the

Rules and therefore, after his reinstatement on 09.01.2007

petitioner was not entitled to notional increment for the said period

and fixation of pay accordingly does not arise. Thus, corrective

action was taken by the company as per Regulation 30(A); hence, it

was urged that the order dated 30.05.2018 passed by the company 9 wp5375.2018..odt

is just and proper and that no interference is required in it.

11. Learned AGP does not dispute the dictum laid down in

Rafiq Masih (supra); however, he sticks to the reply filed by the

respondents and urged for dismissal of the petition.

12. We have appreciated the rival contentions of the learned

counsel for the parties, and perused the impugned order, the record,

as well as the Judgment in Rafiq Masih (supra).

13. The impugned order indicates that respondent No. 2,

while passing the order, held that as per the provisions of Regulation

10 of the Rules, the petitioner is not entitled to claim seniority as

well as the pensionary benefits on his reinstatement. Similarly, it

was held that the petitioner was not on duty from 25.05.2000 to

07.02.2006. Therefore, he is not entitled to a yearly increment for

the said period. However, the same was inadvertently granted to

him, which was withdrawn, and a direction to recover the excess

payment made to him was passed. Thus, the crucial question that

arises is whether the impugned order passed by respondent No. 2 is

just and proper.

10 wp5375.2018..odt

14. It is worth noting that this Court, while passing an order

dated 17.03.2009 in Writ Petition No.39/2009 in paragraph Nos. 5

and 7, has categorically observed as under:

"5. Considered the rival contentions canvassed by the respective counsel. Perused the decision of the Apex Court as well as Regulation 10. In the instant case, it is not in dispute that the petitioner was acquitted by the Appellate court vide judgment dated 08.02.2006 and reinstated vide impugned communication dated 19.01.2007. The perusal of the Regulation 10 would show that the employee of the respondent shall not be eligible for appointment or continuation in service of the Board if he/she is declared insolvent by the Competent Court or convicted by the Criminal Court or any other Court of law for a criminal offence. The Regulation, further, contemplates that the services of an employee so convicted shall be liable to be terminated without enquiry or disciplinary proceedings. It is, therefore, evident that Regulation 10 only deals with the contingencies in which the employee cannot be continued in service or, services of such an employee need to be terminated. However, the Regulation is completely silent as to whether the employee whose services are terminated on account of conviction, reinstated in service as a result of acquittal by the Appellate Court, eligible or not for back wages for the relevant period, hence, in our view, in the present case, Regulation 10 is not attracted, since the issue is only in respect of eligibility of the petitioner for back wages on reinstatement in service as a result of judgment of acquittal passed by the Appellate court.

7. For the reasons stated herein-above, we are of the view that the petitioner has made out a case for grant of back wages, as alternatively prayed by the petitioner from 08.02.2006 i.e. the date on which the Appellate court allowed the Criminal Appeal filed by the petitioner till 19.1.2007 i.e. the date on which the petitioner was reinstated, we quash and set aside the impugned order of the Respondent dated 19.01.2007 to the extent it denies back wages to the petitioner and direct the respondent to pay the back wages of the petitioner from 08.02.2006 till 19.01.2007."

11 wp5375.2018..odt

15. A bare perusal of the said order shows that this Court has

held that the petitioner is entitled to back wages from 08.02.2006 to

19.01.2007 and directed the respondent to pay back wages for the

said period. Similarly, it was held that Regulation 10 only deals

with the contingencies in which the employee cannot be continued

in service or the services of such an employee need to be

terminated. However, Regulation 10 is completely silent when

employees' services are terminated on account of conviction, and

when he is reinstated in service as a result of acquittal by the

appellate Court, whether he is eligible or not for back wages for the

relevant period; hence, Regulation 10 is not attracted in the case in

hand. The respondents did not challenge the said order. Therefore,

the order has attained finality. In view of the said order, we have no

hesitation in holding that Regulation 10 does not apply to/(is not

attracted in) the case in hand.

16. Despite the specific mandate of this Court in Writ Petition

39/2009, respondent No. 2 erred in applying Regulation 10 while

passing the impugned order. Therefore, it is evident that the order

passed by respondent No. 2 by considering the provisions of

Regulation 10 of the Rules is contrary to the dictum laid down by 12 wp5375.2018..odt

this Court, and therefore, cannot be sustained in the eyes of the law.

17. While dealing with the issue involved in the matter, it would

be proper to reproduce paragraph 18 of Rafiq Masih (supra), which

reads thus:

"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 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."

18. Apart from this, it is apparent from the record that in

2007, the petitioner's pay was fixed by the respondents, and the 13 wp5375.2018..odt

Chief Engineer, Nagpur, approved the same. However, after the

retirement of the petitioner, respondent No. 2 held that the order

dated 20.11.2007 about pay fixation is wrong as the same was

made by taking into account the notional increments for the period

for which the petitioner was not entitled, as he was not in service. It

is worth noting that it is not the case that the petitioner has played

any fraud or committed any act maliciously to deceive the

respondents to grant an increment to him, when his earlier pay

fixation was made in 2007. Therefore, as per the mandate in Rafiq

Masih (supra), it is impermissible to recover the amount after the