Gujarat High Court
The State Of Gujarat vs Kiritkumar Mohanlal Bangdiwala on 18 January, 2021
Bench: Ashutosh J. Shastri
C/LPA/713/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 713 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 17921 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 713 of 2020
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THE STATE OF GUJARAT
Versus
KIRITKUMAR MOHANLAL BANGDIWALA
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Appearance:
MS MANISHA L SHAH, GOVERNMENT PLEADER, Assisted by MS
AISHWARYA GUPTA, AGP for the Appellant(s) No. 1,2,3
MR CJ VIN(978) for the Respondent(s) No. 2
MS MAMTA R VYAS(994) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 18/01/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. We have heard Ms. Manisha Lavkumar Shah, learned
Government Pleader, assisted by Ms. Aishwarya Gupta, learned
Assistant Government Pleader, for the State- appellants, Ms.
Mamta R. Vyas learned counsel representing respondent No.1
and Shri Chandresh Vin, learned counsel appearing for
respondent No.2 University.
2. This appeal under Clause 15 of the Letters Patent has
been preferred assailing the correctness of the judgment and
order dated 19.2.2020 passed by learned Single Judge in
Special Civil Application No.17921 of 2017, whereby learned
Single Judge allowed the writ petition, granting the three reliefs
C/LPA/713/2020 ORDER
as claimed by the petitioner therein, i.e. (1) the order of
recovery of excess amount paid to the petitioner was quashed,
(2) interest of 9% per annum on the delayed payment of retiral
dues was awarded and (3) the respondents were directed to
recompute, calculate and revise the pension of the petitioner
with all consequential benefits on the basis of last pay drawn
fixed at Rs.11,575/-.
3. The original writ petitioner was an Estate Engineer
working with the respondent- Veer Narmad South Gujarat
University, Surat from 1980. In 1999, the petitioner applied for
premature retirement on medical grounds, also known as
retirement on the ground of invalidation. The said application
dated 17.3.1999 remained pending with the University with no
orders. In the meantime, the petitioner approached the
Services Tribunal. During the pendency of the matter before
the Tribunal, the petitioner superannuated on 24.3.2003.
Initially, the Tribunal disposed of the matter as having been
substantially rendered infructuous, however requiring the
University to decide the status of the petitioner during the
period from 1999 to 2003, i.e. after the time he had applied for
retirement on the ground of invalidation till the time he
superannuated. Again, when nothing happened, fresh petition
was filed before the Tribunal, which came to be decided in
2007. Operative portion of the judgment of the Tribunal as
contained in para 21 thereof reads as under:-
"21. In view of discussion hereinabove, it is declared that
petitioner is entitled to have the pension and pensionary
benefits on the basis of his reaching the age of
superannuation. Action of opponents especially of Opp. No.1
Uni., not to retire the petitioner accordingly, is hereby
declared arbitrary, illegal, unreasonable and unjust. It is
declared that petitioner is entitled to have the pension and
pensionary benefits from the date of his superannuation i.e.
C/LPA/713/2020 ORDER
24/3/03 with interest on arrear at the rate of 9% pa from the
date of his making application and retire him as such i.e.
application dtd. 2/2/04 (Annex. M., Page-55 of the record) till
actual payment. The request of Ld. Ad. Mr. H.J. Nanavaty to
award 12% interest is hereby not accepted considering the
rates of interest prevailing in the market right from 2/2/04 to
today.
Opponents are hereby directed individually and collectively
to process the pension papers, and finalize the pension and
to see that arrear or all retirement benefits reach to the
petitioner along with interest within period of three months
from the date of receipt of free copy of this Judgment at
one's end from the office of this Tribunal on or service of
photocopy of free copy of this Judgment duly secured by or
on the behalf of the petitioner from the office of this Tribunal,
whichever is earlier.
Opponents are hereby further directed to go on paying
pension regularly at the end of every month to the petitioner
as per rules till he or his successor's remain entitled for the
same."
4. It appears that after the order of the Tribunal passed in
2007, the provisional pension of the petitioner was determined
in 2014. He was also paid the arrears calculated at the pension
determined in 2014 provisionally. When the matter came up
for final pension before the competent authority, it was noticed
that 2014 fixation of pension was wrongly done. Accordingly, in
2017, three separate orders were passed. On 19.1.2017, the
pension which was fixed in 2014 was reduced substantially.
Again in September 2017, an order was passed for recovery of
the excess amount of pension paid to the petitioner for the
period from 2003 to 2017, which was approximately Rs.10 lac
and odd. Aggrieved by the same, Special Civil Application
No.17921 of 2017 was filed praying for quashing of the said
orders, reducing the pension and directing for recovery and
also to make deductions from the pension every month.
5. Learned Single Judge vide impugned judgment and order
granted all the three reliefs claimed by the petitioner. Insofar
C/LPA/713/2020 ORDER
as recovery was concerned, learned Single Judge applied the
judgment of Supreme Court in the case of State of Punjab
and others Vs. Rafiq Masih (White Washer) reported in
(2015)4 SCC 334. Insofar as the claim of interest on delayed
payment was concerned, the Court awarded 9% interest per
annum and insofar as calculation of re-fixation of pension was
concerned, learned Single Judge accepted the case of the
petitioner and directed accordingly.
6. Learned Government Pleader Ms. Manisha Lavkumar
Shah submitted that learned Single Judge was in error on all
the three counts while granting the reliefs. Firstly, according to
her, the judgment of Rafiq Masih (Supra) would not be
applicable nor would extend any benefit to the petitioner as it
was for the benefit of Class-III and Class-IV employees,
whereas the petitioner was a Class-II officer. She further placed
reliance upon the judgment of the Supreme Court dated
29.7.2016 rendered in Civil Appeal No.3500 of 2006 in the case
of High Court of Punjab & Haryana and Ors. Vs. Jagdev
Singh (para 11) and submitted that the Supreme Court after
considering the judgment of Rafiq Masih (Supra) held that
where there is an undertaking of an employee, at the time of
provisional fixation, if any excess amount is wrongly calculated
would be liable to be recovered and therefore, she submitted
that no relief could be granted to the petitioner on this count.
Insofar as delayed payment is concerned, she submitted that
the State was not at fault nor was there any delay on the part
of the State and if there was any delay, it was at the end of the
University and therefore, the State could not be saddled with
any financial burden on this count. Thirdly, it was submitted
that insofar as fixation of pension is concerned, learned Single
Judge without recording any finding as to which would be the
C/LPA/713/2020 ORDER
actual provision applicable nor holding that fixation done by
the competent authority was incorrect, accepted the case of
the petitioner, as such, the said relief granted could also not be
sustained.
7. On the other hand, Ms. Mamta Vyas, learned counsel for
respondent No.1, submitted that learned Single Judge
committed no error, the State is unnecessarily driving the
petitioner into litigation who retired in 2003 and had been
seeking retirement since 1999 and is now aged about 80
years, as such the matter should be put to an end. According
to her, learned Single Judge on all the three counts has rightly
awarded the reliefs. She submitted that the orders impugned
in the writ petition, i.e. regarding recovery of excess amount
paid, deduction from pension and reduction of pension, all had
been passed without issuing any notice or giving any
opportunity to the petitioner. The orders passed by the
competent authority, impugned in the petition, having serious
civil consequences are liable to be quashed on that ground
also and therefore, this Court may dismiss the appeal and
confirm the order of learned Single Judge. Ms. Vyas further
submitted that the fixation done by learned Single Judge was
in accordance with the relevant provisions applicable. It is also
submitted that the arguments which are being advanced by
learned Government Pleader in this appeal were neither raised
before learned Single Judge nor any such material was placed
before learned Single Judge to examine the correctness of
fixation of pension.
8. Mr. Chandresh Vin, learned counsel for the respondent
University submitted that there was no deliberate delay on the
part of the University and whatever delay was caused was on
C/LPA/713/2020 ORDER
account of non-fulfillment of the formalities at the end of the
petitioner.
9. Having considered the submissions and having perused
the material on record, we are of the view that learned Single
Judge as also the competent authority committed error in
passing the orders. The State authorities proceeded to pass
the orders reducing the pension, recovering the substantial
amount and for deduction from pension on monthly basis
without affording any opportunity. The said orders could not be
sustained on that ground alone. Further, learned Single Judge
also apparently failed to take into consideration the true ratio
of the case of Rafiq Masih (Supra) as also with regard to the
fixation of pension, no finding was recorded.
10. We are of the considered view that it would be in the best
interest of both the parties that the competent authorities take
a reasoned decision on all the three aspects at the earliest
considering the fact that the petitioner had retired in 2003 and
would now be more than 75 years old.
11. In view of the above discussion, the Letters Patent Appeal
as also the Special Civil Application No.17921 of 2017 are
allowed. The order of learned Single Judge dated 19.2.2020 is
set aside. Further, the three orders, impugned in the petition,
namely 19.1.2017, 13.9.2017 and 16.9.2017, are hereby
quashed.
12. The Director of Pension and Provident Fund to take an
appropriate decision strictly in accordance to law after
affording due opportunity to the petitioner and pass a
reasoned order within a period of FOUR WEEKS without fail
C/LPA/713/2020 ORDER
from the date of production of the certified copy of this order
and communicate the same to the petitioner. Whatever
payment is found due, to be paid forthwith. In the meantime,
the pension, which is being paid at present, will continue to be
paid. Ms. Vyas, learned counsel for the respondent, states that
there will be full cooperation on the part of the respondent in
the proceedings before the Director.
13. Since there is already an order for payment of interest,
the competent authority would be free to make an inquiry and
fix the responsibility of the officers found to have been
responsible for the delay and accordingly, recover the amount
of interest from them on pro-rata basis of such erring officers
of the State, including the University.
14. Consequently, the connected Civil Application stands
disposed of.
Sd/-
(VIKRAM NATH, CJ)
Sd/-
(ASHUTOSH J. SHASTRI, J)
OMKAR
