Gujarat High Court
Bai Shakariben Wd/O. ... vs Executive Engineer on 16 February, 2021
Bench: Umesh A. Trivedi
C/SCA/10126/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10126 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17598 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17599 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17600 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17601 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17602 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 17603 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/
============================================
1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
BAI SHAKARIBEN WD/O. PRAHLADJINATHAJI THAKORE & 1 other(s)
Versus
EXECUTIVE ENGINEER & 3 other(s)
=============================================
APPEARANCE IN SCA NO.10126/2006:
MR SHALIN N MEHTA(2010), ADVOCATE, SR. COUNSEL for the Petitioner(s)
No. 1,2
MR. DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 3,4
RULE SERVED(64) for the Respondent(s) No. 1,2
APPEARANCE IN SCA NOS.17598, 17599, 17600, & 17603/2006:
MS ADITI RAOL, ADVOCATE for the Petitioners
MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 3,4
RULE SERVED 12
Page 1 of 13
Downloaded on : Wed Jan 12 23:25:17 IST 2022
C/SCA/10126/2006 JUDGMENT
APPEARANCE IN SCA NO.17601 / 2006
MS. GRISHMA M. AHUJA for the petitioner
MR. DHAWAN JAYSWAL, AGP FOR RESPONDENTS 3,4
RULE SERVED 12
=============================================
CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 16/02/2021
ORAL JUDGMENT
1. Since common question of law and facts involved in the
present group of petitions, it is hereby disposed of by this common
judgment and order.
2. The action of the respondent in withdrawing pay scale
of Rs.260430 in the cadre of Wireman Helper and placing them in
the pay scale of Rs.260350 with consequential recovery thereof
was under challenge before the Gujarat Civil Services Tribunal,
Gandhinagar, ('Tribunal' for short) by way of different appeals
preferred by the petitioners. However, the 'Tribunal' had, vide
common judgment and order dated 20.03.2002, dismissed all the
appeals. These petitions are filed challenging the withdrawal of pay
scale by the authority substituting it from Rs.260430 to Rs.260
350 and order of "Tribunal" dismissing the Appeals filed against it.
3. After issuing notice in the petitions preferred by the
petitioners, vide order dated 10.04.2007, this Court prevented the
respondents from effecting recovery sought for from them under
the guise of awarding them different pay scale under a mistake.
Thus, no recovery is effected so far pursuant to the action of the
respondents.
C/SCA/10126/2006 JUDGMENT
4. Out of these petitions, facts are stated from Special Civil
Application No.17598 of 2006, which is the lead matter as argued
by Mr. Shalin Mehta, Senior Advocate, learned counsel, assisted by
Ms. Aditi Raol, learned Advocate for the petitioner.
4.1 The petitioner was appointed as daily wager wireman
in the year 197778. Thereafter, he was promoted as a work
charged wireman helper pursuant to the Notification issued by the
respondent, after following due procedure and consultation with
the concerned Department. Vide order dated 13.10.1981, the
petitioner came to be appointed as wireman helper as work
charged employee on the establishment in the pay scale of Rs.260
430 on certain terms and conditions mentioned in it which is at
page No.47 of the petition.
4.2 It is the case of the petitioner that from the date of his
appointment as workcharged employee, he has earned increments
on the pay scale of Rs.260430 from the year 1981 to 1986 i.e. his
order of appointment till 1986. The petitioner has also produced on
record an order of increment and the wireman certificate. It is
further the case of the petitioners that since 1981 and till 1987,
they have been paid all monetary benefits on the basis of above
referred pay scale. In the year 1987 while revising the pay scale of
workcharged employee pursuant to the 4th pay commission, the
respondent No.1 passed an order of recovery by reducing original
pay scale of the year 1981 from Rs.260430 to Rs.260350 with
retrospective effect. The said action of the respondent No.1 was
challenged at that time and this Court remanded back the matter to
C/SCA/10126/2006 JUDGMENT
the respondents for the purpose of hearing the petitioners. After
affording hearing to the petitioners, the authority had confirmed its
earlier order and since it was not a reasoned order, it was again
challenged before this Court and respondents were directed to
reconsider the case of the petitioners and again the matter was
remanded back at that time. At last, vide order dated 20.05.2000,
the respondent authorities had confirmed the earlier order reducing
the pay scale and directing recovery thereof from the petitioners.
Therefore, petitioners were constrained to challenge the said order
before 'the Tribunal'. Thus, the order of the authority confirmed by
the 'the Tribunal' is under challenge in this petition.
5. Mr. Shalin Mehta, Senior Advocate, learned counsel for
the petitioners submitted that the respondents are not authorized
to reduce the pay scale of the petitioners, that too, retrospectively
without any reasoned order. He has further submitted that even
after the order of remand passed by this Court, no specific reasons
are assigned for passing fresh order and it had not considered the
representation in writing placed before the authority by the
petitioners. It is further submitted that the impugned order of
reduction is passed without following principles of natural justice
as before the hearing necessary documents asked for from the
respondents authorities were never supplied and 'the Tribunal' had
not referred the contentions raised and argued by the petitioners. It
is further submitted that the respondents cannot reduce the original
pay scale of the petitioners granted in the year 1981 subsequently
while effecting pay fixation in pursuance of the revision of pay
recommended by the 4th Central Pay Commission. It is further
C/SCA/10126/2006 JUDGMENT
submitted that retrospective reduction of the pay scale is in order to
deprive the petitioners of corresponding revision of pay scale from
Rs.260430 to Rs.11501500. It is further submitted that the
amendment to the Gujarat Civil Services (Revision of Pay) Rules,
1975 (for short 'the Rules 1975') is made by way of Resolution
without bringing amendment to the rules in exercise of powers
conferred by the proviso to Article 309 of the Constitution of India.
5.1 Drawing attention to page 88, the Resolution dated
09.03.1978, he has submitted that by way of resolution, an entry
under "Public Works Department" under the subheading "Offices
of the Chief Engineers and Superintending Engineers" against the
entry at Sr. No.193 relating to the posts of Helper wireman /
Electric Mazdoor Helper in column No.4 for the figure "260430"
the figure "260350" is substituted. Though the said resolution
mentions about necessary amendment to 'the Rules 1975' be issued
in due course, no such amendment was brought to the notice of
even Tribunal by the respondents while the appeals before it were
argued and decided. Therefore, it is submitted that by way of
resolution, respondent authority is not authorized to reduce the pay
scale once granted, that too retrospectively, without any reasons or
affording any opportunity of hearing to the petitioners.
5.2 He has further submitted that since the petitioners were
qualified wireman, grant of different pay scales to them was
justified and it was not open for the respondents to reduce the
same. As such, the petitioners perform the very same duty as other
wiremen helper / electric mazdoor helper of other departments are
C/SCA/10126/2006 JUDGMENT
performing. Therefore, it is submitted that there cannot be any
different pay scale for them even under 'the Rules 1975'. It is
further submitted that while issuing the appointment order, the pay
scale was fixed at Rs.260430 and their designation was also shown
to be wireman - helper. However, at the time of revision of pay
scale, when it is determined by the State Government, the said pay
scale is revised so far as helper wireman is concerned but nothing
is mentioned about the posts of wireman - helper. Therefore,
according to submission of learned advocate for the petitioners,
both the cadres are different, and therefore, their pay scales could
not have been reduced by the respondent authorities.
5.3 It is further contented that since the petitioners are
possessing certificate in wireman, they are qualified persons and
their pay scales cannot be equated with the labourer, who is
helping the wireman in the work and thus, the respondent
authority could not have reduced the pay scale granted to the
petitioners. Therefore, he has submitted that the petitions are
required to be allowed quashing and setting aside the impugned
orders and respondents authorities are required to step up the scale
of the petitioners as wireman helper at Rs.260430 and
corresponding pay scale of Rs.11501500 from 01.01.1986 to
31.12.1995 and further directing them to pay due salary with other
consequential monetary benefits with 18% interest.
6. As against that, Mr. Dhawan Jayswal, learned Asst.
Government Pleader, submitted that the petitioners were initially
working as labourer / daily wager. However, subsequently they
C/SCA/10126/2006 JUDGMENT
have been appointed as workcharged employees. However, while
appointing them as workcharged employees, the appointment
order by mistake was given in the pay scale of Rs.260430 instead
of Rs.260350 through oversight. It is further submitted that while
issuing the appointment order, the pay scale for the helper /
wireman / electric mazdoor helper, which was corrected vide
resolution dated 09.03.1978, could not be noticed and therefore,
they have been wrongly given pay scale of Rs.260430. Therefore,
according to his submission, any benefit granted under a mistake
can be withdrawn subsequently even without affording opportunity
of hearing. It is nothing but a correction of a mistake committed
ignoring the existing pay scale to the cadre on which petitioners
were appointed. Therefore, there is nothing wrong to correct the
same. However, he has submitted that since it has been sought to
be recovered within less than 5 years, even recovery thereof is
permissible.
6.1 He has further submitted that pursuant to a resolution
dated 09.03.1978, appropriate amendment in 'the Rules 1975' was
also effected. As such, under 'the Rules 1975', pay scale of Rs.90
110 to the post of helper / wireman / electric mazdoor helper was
revised to Rs.260430, while framing of 'the Rules 1975'. However,
the said pay scale was substituted for the figure 260430 to figure
260350, as it was to be given to the employees on workcharged
establishment. The said amendment was recommended to be
effective from 01.01.1973. Therefore, according to submission of
Mr. Dhawan Jayswal, learned AGP, subsequent amendment in 'the
Rules 1975, would relate back to the 01.01.1973. Therefore, it is
C/SCA/10126/2006 JUDGMENT
submitted that correcting a mistake in giving wrong pay scale
cannot be assailed on the ground that it has been done without
hearing the petitioners. Therefore, he has submitted that the orders
passed by the authority as also confirmed by the Tribunal are
required to be confirmed.
7. Heard the learned advocates for the appearing parties.
The claim made in these petitions by the petitioners, who were
appointed as workcharged employees in the year 1981 in a pay
scale which was corrected / substituted from Rs.260430 to Rs.260
350. However, while appointing them as workcharged employees,
a pay scale was given to Rs.260430 as wireman - helper, through
mistake.
8. Vide Resolution dated 09.03.1978, which is at page 88
of the compilation, while revising the pay scale of workcharged
employees as per the recommendation of 2 nd Pay Commission in an
entry at serial No.193 under the head of "Public Works
Department" under subheading "Offices of Chief Engineers and
Superintending Engineers" relating to post of helper wireman /
electric mazdoor helper figure "260430" the figure "260350" be
substituted. Since the pay scale appears to have been wrongly
applied in the case of the petitioners whose appointments were as
helper wireman, who were to get salary in the pay scale of "90
110" was revised by the 2nd Pay Commission to be "260350". Not
only that, the said mistake was committed for the employees on
regular establishment but it was done in the case of workcharged
establishment also. Therefore, as a consequential order, the
C/SCA/10126/2006 JUDGMENT
petitioners were ordered to draw the pay scale in the very same
category in the pay band of Rs.260350 as the said pay band was
revised from Rs.90110 while recommending to the Gujarat Civil
Services (Revision of pay) Rules, 1975, the State Government has
categorically mentioned that the recovery of excess if any paid to
the helper wireman / electric mazdoor / helper on the basis of pay
scale of Rs.260430, should be waived. In the very said Resolution
dated 09.03.1978, it was mentioned that the necessary amendment
to the Gujarat Service (Revision of Pay) Rules, 1975 shall be issued
in due course. Mr. Dhawan Jayswal, learned Asst. Government
Pleader has produced the amendment made in 'the Rules, 1975' by
way of Gujarat Civil Services (Revision of Pay) (8th Amendment)
Rules,1982. The said rule as per subsection (2) of Section 1 of the
amendment Rules, 1982 came into force on and with effect from 1 st
day of January, 1973.
9. Thus, it is crystal clear that the appointment of the
petitioners were in the pay band of Rs.90110, which was revised to
Rs.260350 and through mistake their appointment orders refer to
the pay scale of Rs.260430, which is sought to be corrected by the
State Government. If anything paid in excess to what the
petitioners were entitled, through mistake, it is required to be
corrected and therefore, no grievance can be raised against such
correction. Mistakes can be corrected subsequently when it comes
to light. In the present case, it appears that there is an absolutely a
mistake committed while applying the pay scale in appointment
order in the cases of the petitioners appointing them on work
charged establishment. It is an audit query by the Local Audit
C/SCA/10126/2006 JUDGMENT
Office mistake came to light and it got corrected. However, as a
matter of principle also, any amount paid in excess on account of
mistake, not attributable to the petitioners, cannot be recovered
beyond a period. However, in the present case while
recommending the amendment by way of resolution dated
09.03.1978, the State Government itself has said that excess
amount paid should be waived. Despite that, the Head of the
Department, while communicating correction in the pay sale
wherein they have been employed, directed the recovery of the
excess amount paid to them. Not only that, it is not permissible
under the law beyond a limit but in the present case while
recommending even amendment in the pay revision Rules, specific
orders were passed that the excess payment made should be
waived. The date on which the petitioners were appointed on work
charge establishment, no such amendment, as recommended by
way of resolution dated 09.03.1978, came to be carried out. The
said amendment by way of amendment Rules appears to have been
introduced only on 11.11.1982, though its applicability is with
effect from 01.01.1973 i.e. the effective date of recommendation of
2nd pay commission. Therefore contention raised that their pay
scale could not have been withdrawn has no substance in view of
aforesaid. At any rate, the petitioners cannot be held responsible
for drawing more salary because of their mistake. Therefore it
could never be recovered.
10. Mr. Dhawan Jayswal, learned Asst. Government
Pleader, has fairly submitted and relied on a decision in the case of
State of Punjab & Ors. Versus. Rafiq Masih (White Washer)
C/SCA/10126/2006 JUDGMENT
reported in (2015) 4 SCC 334, wherein principles on the issue of
recovery where the payments have been made through mistake by
the employer is reiterated, more particularly in para18 thereof.
11. The relevant observations in para 18 of the aforesaid
decision are as under:
"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
accordingly, even though he should have rightfully been required
to work against an inferior post".
12. Considering the submissions made by the learned
advocates for the appearing parties, one thing is clear that though
Tribunal in its order, more particularly in para 6, concluded that
the order passed by the authority effecting recovery is inconsistent
with the order of the State Government amending the revision of
C/SCA/10126/2006 JUDGMENT
pay Rules, ultimately failed to even allow the appeals preferred by
the petitioners to that extent and appeals came to be dismissed in
toto. When State Government, while amending revision of pay
Rules, has specifically said that recovery of excess amount if any
paid to helper wireman / electric mazdoor on the basis of pay scale
of Rs.260430 should be waived, it could not have been demanded
by the Executive Engineer vide order impugned being Office Order
No.241 of 1987 in the case of one of the petitioner Mr. G.K.Purohit.
All similar orders are under challenge by different petitioners
directing recovery of the excess amount and therefore, the
contention raised by the learned advocate for the petitioners is
required to be accepted so far as recovery aspect is concerned.
13. So far as the argument that the pay scale granted to the
petitioners while appointing them on workcharged establishment
could not have been withdrawn, as also the argument that the
amendment effected in pay rules by way of Government resolution
is unconstitutional has been dropped when it has been pointed out
by Mr. Dhawan Jayswal, learned AGP, that the corresponding
amendment came to be effected, as mentioned in the resolution
dated 09.03.1978 by way of Gujarat Civil Services (Revision of Pay)
(8th Amendment) Rules, 1982. Thus, it is clear that when the
petitioners were appointed on workcharged establishment, the
amendment already recommended and implemented from 9 th
March 1978 in the case of the petitioners was overlooked and they
were appointed on a wrong pay scale to be Rs.260430 instead of
Rs.260350. As such, petitioners came to be appointed in the pay
scale which was not in existence at the relevant point of time for
C/SCA/10126/2006 JUDGMENT
their posts through mistake. Therefore, the State Government is
free to correct the mistake when it had come to the light and the
said action of the State correcting mistake in granting incorrect pay
scale could not have been questioned at all. Thus, I see no merit in
the aforesaid contention and therefore, it is hereby rejected.
14. In the result, these petitions are partly allowed to the
extent that while correcting the pay scale granted to the petitioners
through mistake, recovery of excess amount sought for by the
impugned orders is quashed. The impugned orders of authority and
in Appeal in each of the petitions are hereby quashed and set aside.
In short, the respondent - State shall not effect recovery of excess
amount already paid to them while correcting their pay scale. Rule
made absolute in each of the petitions to the aforesaid extent.
15. Copy of this judgment be placed in each of the
petitions.
(UMESH A. TRIVEDI, J)
Lalji Desai
