Dineshbhai Bhagvanjibhai ... vs Paschim Gujarat Vij Company ...
2021 Latest Caselaw 17737 Guj

     C/SCA/1387/2017                            JUDGMENT DATED: 25/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1387 of 2017
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 1388 of 2017
                                   With
             CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
              In R/SPECIAL CIVIL APPLICATION NO. 1388 of 2017
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 1389 of 2017
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 1390 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                     Sd/-
==========================================================
1     Whether Reporters of Local Papers may be allowed               NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                       YES

3     Whether their Lordships wish to see the fair copy              NO
      of the judgment ?

4     Whether this case involves a substantial question              NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
               DINESHBHAI BHAGVANJIBHAI CHUDASAMA
                               Versus
           PASCHIM GUJARAT VIJ COMPANY LIMITED & 2 other(s)
==========================================================
Appearance:
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2,3
==========================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 25/11/2021
                        COMMON ORAL JUDGMENT

1. RULE. Learned advocate Mr.Dipak Dave waives service of notice of rule for and on behalf of the respondents.

C/SCA/1387/2017 JUDGMENT DATED: 25/11/2021

2. Since a common issue is involved in the captioned writ petitions, the same are heard and decided analogously by the common judgement.

3. All the petitioners are aggrieved by the action of the respondent authorities in recovering the amount of annual increments, which were wrongly granted to them. It is the case of the respondent- PGVCL/Company that since the petitioners, despite not having cleared the Professional Examination within a period of three years as per the regulations being General standing Order (GSO) No.195 dated 10.12.1968 and subsequent amendments, they were being paid increments, and when it was realized the recovery of amount paid pursuant to the increments was recovered.

4. Learned advocate Mr.Rathod appearing for the petitioners, upon instructions, has submitted that the impugned orders are required to be quashed since, subsequently, two of the petitioners of Special Civil Application Nos.1387 of 2017 and 1389 of 2017 have cleared the Professional Examination. He has submitted that the recovery initiated by the respondent-Company is without following due process of law and the same could not have been affected, without giving any prior notice or opportunity of hearing to the petitioners. It is submitted that after lapse of so many years, it is not permissible for the respondent-Company to recover the amount of increment, which was paid to the petitioners.

C/SCA/1387/2017 JUDGMENT DATED: 25/11/2021

5. In response to the aforesaid submissions, learned advocate Mr.Dave for the respondents has submitted that as per GSO dated 10.12.1968, the petitioners were required to pass Professional Examination within a period of three years from the date of their joining of the respondent- Company. While placing reliance on the Established Manual, the learned advocate has submitted that the Junior Engineers have to pass examination within the stipulated period of three years of the date of joining, failing which their increment is required to be stopped. He has submitted that thereafter, vide Circular dated 10.03.2004 issued by the erstwhile Gujarat Electricity Board (G.E.B.), a decision was taken to withhold the increments in the case of Engineers, who have not passed the Professional examination till June, 2004. However, by the Circular issued on 10.05.2007 by the G.E.B., it was decided that the increment is in favour of those Engineers, who did not clear the Professional Examination shall be stopped till the Engineers pass the Professional Examination. Thus, he has submitted that it is the policy of the respondent-Company to stop the increments in case of not clearing the Professional Examination and only after clearing of such examination, the increments are released.

5.1 Learned advocate Mr.Dave has further placed reliance on the settlement arrived at between the

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Union of the petitioners and the respondent- Company under the provision of Section 2(p) of the Industrial Disputes Act, 1947 (I.D. Act) and while placing reliance on Clause-36, he has submitted that the same empowers the respondent- Company to recover any wrongful payment granted to its employees or officers. Thus, he has submitted that once the petitioners are parties to the settlement, they cannot file writ petition(s) challenging the action of the respondent-Company of recovering the amount of the increments, which were illegally paid to them. It is submitted that since the settlement under the provision of Section 2(p) of the I.D. Act have been made during conciliation proceedings, the petitioners are bound by the effect of such settlement and hence, the question of extending opportunity of hearing or prior notice does not arise before recovering the amount.

6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by the them.

7. It is not disputed that all the petitioners have not cleared the Professional Examination within a period of three years, as envisaged in the GSO as well as regulations of the respondent- Company. The GSO No.195 dated 10.12.1968 was issued by the G.E.B. and the relevant portion of the same is incorporated here as under:

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"The Board also decided that, in case of new entrants, a condition of service should e introduced indicating therein that their services are liable to be terminated if they do not pass the professional examination within a period of three years or extended period of their appointment."

8. Initially, the G.E.B had decided to terminate the service of the new entrants, if they fail to pass the Professional Examination within a period of three years. Thereafter, it appears that the G.E.B., by its Establishment Manual, had decided to stop increments, if such Junior Engineers fail to pass the Professional Examination within a period of three years. Such regulation is incorporated as under:

"(iii) Professional Examination (Sr. Nos. 2 (A) & 2 (B) of C. S. O. No. 4 of 1956.) (Authority - BRS Nos. 334 and 2175 (c) dated 6-4-1955 and 7-6-1956 respectively ). This supersedes G. S. Os. Nos. 4 and 117.

Sr. No. 2 (A)

(I) For junior Engineers (E & M)

(a) All the Junior Engineers who are fresh entrants should pass the examination in the Electricity Act of 1910 and the Rules thereunder (1937) within 3 years of joining. They will be eligible to appear for the examination after completion of one year's satisfactory service (including probation). For the existing staff the period for passing the examination will be 3 years from 14th May 1955.

(b) Unless the Junior Engineers pass the examination within the stipulated period, their increments shall be withheld. If they pass their examination after 3 years, they will start earning

C/SCA/1387/2017 JUDGMENT DATED: 25/11/2021

increments from the date of passing their examination."

9. Thereafter, vide Circular dated 10.03.2004 was issued by the G.E.B. specifying that the 36th Professional Examination will be held on 26.06.2004 and 27.06.2004, wherein it was clarified that if the Junior Engineers do not pass the Professional Examination, their increments will be withheld. Similar circular was issued on 10.05.2007, whereby it was clarified that the Professional Examination may be conducted by 31.05.2007 and subsequent exam in 4 th week of January of each year and it was clarified that if the Engineers do not clear the exam, their increments have to be stopped and can be released after clearing of the examination. It is not in dispute that all the petitioners have not cleared the Professional Examination within the time stipulated by the respondent-Company. As per the instructions received, the petitioners of Special Civil Application Nos.1387 of 2017 and 1389 of 2017 only have cleared the examination in the year 2018.

10. It is also not in dispute that all the petitioners were being extended the benefits of the increments by the respondent-Company inadvertently, though they have not cleared the Professional Examination and when it was realized by the respondent-Company that they have been illegally extended the benefits, the impugned orders were passed to effect recovery from them.

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11. At this stage, it would be apposite to refer to the settlement arrived at between the Union of the petitioners as well as the respondent-Company during the course of conciliation proceedings under the provision of Section 2(p) of the I.D. Act. The petitioners are not questioning the applicability of the aforesaid settlement and it is not in dispute that such settlement is also binding upon them. It would be relevant to incorporate Clause-36 of the settlement. The same reads as under:

"36.0 Any wrongful payment made to employee/officer pursuant to these orders or any other justified action of the company, being public money, the same shall be recovered in suitable equal installments. Further those of the employees/officer who have been charge sheeted for loss to the companies, misappropriation etc. the amount of loss/misappropriation shall be recovered from arrears payment and / or other sources. Such disciplinary action cases shall be finalized preferably within one year form the date of this GSO."

11.1 A plain and simple reading of the Clause-36 of the said settlement indicates that the wrongful payment made to the employees/ officers pursuant to these orders or any other justified action of the company, the same shall be recovered in suitable equal installments. Thus, the petitioners cannot raise their grievance with regard to the recovery of the increments, which were wrongly paid to them and action of the respondent-Company in recovering

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such increments paid to the petitioners despite of not having cleared the Professional Examination within the stipulated time in the regulation, cannot be said to be illegal and the same is in consonance with the Clause-36 of the settlement.

12. It is not disputed that all the petitioners have consented to the settlement. Thus, even if the opportunity of hearing or prior notice was issued to the petitioners, the same would be an exercise in futility as indubitably the increments were wrongly paid to the petitioners.

13. In case of Union of India Vs.Raghuwar Pal Singh, (2018) 15 S.C.C. 463, the Apex Court has held thus:

"21. In paragraph 30 of the reported decision, the Court adverted to the exposition in M.C. Mehta Vs. Union of India & Ors.11 which evolved the „useless formality‟ theory. It is apposite to 10 (1991) Supp. theory. It is apposite to 10 (1991) Supp. (1) SCC 331 11 (1999) 6 SCC 237 reproduce paragraphs 30 to 32 of the reported judgment, which read thus:

"30. In M.C. Mehta Vs. Union of India this Court developed the "useless formality" theory stating: (SCCPP.246-47, para 22) "More recently Lord Bingham has deprecated the „useless formality‟ theory. It is apposite to 10 (1991) Supp. theory in R.v. Chief Constable of the Thames Valley Police Forces, ex p Cotton12 by giving six reasons. (See also his article „Should Public Law Remedies be Discretionary?

1991 PL, p.64.) A detailed and emphatic criticism of the „useless formality theory‟ theory. It is apposite to 10 (1991) Supp. has been made much earlier in „Natural Justice, Substance or Shadow‟ theory. It is apposite to 10 (1991) Supp. by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p.323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the Court cannot prejudge what

C/SCA/1387/2017 JUDGMENT DATED: 25/11/2021

is to be decided by the decision- making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a „real likelihood‟ theory. It is apposite to 10 (1991) Supp. of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their „discretion‟ theory. It is apposite to 10 (1991) Supp., refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala Vs. S.K.

Sharma13, Rajendra Singh Vs. State of M.P.14 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit 12 (1990) IRLR 344 13 (1996) 3 SCC 364 14 (1996) 5 SCC 460 and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived." (emphasis in original)

31. In Kendriya Vidyalaya Sangathan it was held: (SCC p. 505, para5) "It is clear that if after the termination of services of the said Dr. K.C. Rakesh, the orders of appointment are issued, such orders are not valid. If such appointment orders are a nullity, the question of observance of principles of natural justice would not arise."

32. In Bar Council of India Vs. High Court of Kerala15 it was stated : (SCC p.323, para45) "Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule."

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(emphasis supplied) In the present case, the appointment letter was admittedly issued without the approval of the competent authority.

22. In Dhirender Singh & Ors. Vs. State of Haryana & Ors.16, termination of the appellant therein albeit without notice, was not interfered with by the Court as admittedly the same was not approved by the competent authority. The underlying principle will apply proprio vigore to the present case, as the letter of appointment has been issued by an officer who had no authority to do so and also because it was issued without waiting 15 (2004) 6 SCC 311 16 (1997) 2 SCC 712 for the approval of the competent authority. Resultantly, there was no necessity to afford opportunity to the respondent before issuing the letter of cancellation of such appointment. The mere fact that such letter of appointment had been issued in favour of the respondent does not bestow any right in his favour much less to insist for an opportunity of being heard."

14. In the foregoing reasons and analysis, the writ petitions fail. Rule is discharged. It is clarified that in case of the petitioners, who have subsequently cleared the Professional Examination, their increments may be released from the date of passing of the examination and recovery shall be made in the equal installments from them, who have yet not cleared such examination.

15. As a sequel, Civil Application (for direction) No.1 of 2021 stands disposed of. Interim relief stands vacated.

16. Registry to place a copy of this order in each of the connected matters.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA