Gujarat High Court
Bhuj Municipality vs Dilip Pragji Solanki on 12 January, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/249/2023 ORDER DATED: 12/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 249 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 18681 of 2019
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BHUJ MUNICIPALITY
Versus
DILIP PRAGJI SOLANKI
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Appearance:
MR BY MANKAD(440) for the Appellant(s) No. 1
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1
MS DHARA M SHAH(5546) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 12/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. B. Y. Mankad for the
appellant-Municipality, learned Assistant Government Pleader
Mr. Sanjay Udhwani for respondent No.2 and whereas learned advocate
Ms. Dhara Shah for respondent No.1.
2. By judgment and order dated 26.8.2022 passed in Special Civil
Application, learned single Judge, relying on the decision rendered in
Special Civil Application No. 13471 of 2021, inter alia set aside the
action on part of the respondent-appellant herein of recovering the
amount of Dearness Allowance and further directed to refund the amount
to the petitioner with 6% interest.
2.1 The challenge in this Letters Patent Appeal to the judgment and
order of learned single judge is limited to the extent that 6% interest is
granted.
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C/LPA/249/2023 ORDER DATED: 12/01/2024
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2.2 The relevant direction contained in paragraph 8 of Special Civil
Application No. 13471 of 2021, which was relied on by learned single
Judge in the impugned judgment and order, is reproduced,
"Accordingly, the impugned action of the respondent authority of
recovering the amount of DA is hereby quashed and set aside. As a
consequence, the impugned order is also hereby quashed and set aside.
The respondent Nagarpalika is directed that the recovery made pursuant
to the impugned order(s) or undertaking of the petitioner, shall be
refunded to the petitioner with 6% interest per annum within a period of
six weeks from the date of receipt of the writ of the order of this court."
3. What was prayed by the petitioner in his petition was to set aside
order dated 10.1.2019 passed by the Nagarpalika and to refund amount of
Rs. 1,77,504/- with 9% interest. The case was that Municipality had
passed the said order to recover the amount from the petitioner employee
on the ground that the Dearness Allowance in the 5 th Pay Commission
recommendation was paid higher than the actual amount and that it was
the misunderstanding on part of the Nagarpalika in making such payment.
3.1 The petitioner was working as Assistant Pump Operator in the
Bhuj Nagarpalika on the permanent set up and was a permanent
employee, who retired on 30.9.2018. The limited grievance of the
appellant-Nagarpalika in the Letters Patent Appeal is in respect of grant
of interest by learned single Judge while issuing direction to refund the
amount.
4. The pointed submission which was made by learned advocate for
the appellant Municipality was that while allowing the petition and giving
direction to refund the amount, learned single Judge relied on two
decisions; the first was in Hemant Harilal Bhatt vs. State of Gujarat
being Special Civil Application No. 8437 of 2019 and Darshak
Natvarlal Antani vs. State of Gujarat being Special Civil Application
NEUTRAL CITATION
C/LPA/249/2023 ORDER DATED: 12/01/2024
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No. 20047 of 2018. In the said petitions, admittedly identical controversy
was considered and addressed by the court. The petitioners therein were
similarly situated who had the grievance against the order of recovery of
Dearness Allowance sought to be effected by the Municipality.
4.1 It was submitted by learned advocate for the appellant Municipality
that in none of the above Special Civil Applications, while granting relief
to the petitioner concerned, the court awarded interest. It was submitted
that when the interest was not granted in the identical cases, there was no
good reason to issue direction to pay interest in the instant case. Learned
advocate for the Municipality fairly stated that the respondent herein has
been paid interest pursuant to directions issued by learned single Judge.
However, he submitted that because of erroneous grant of interest in the
instant case, the Municipality has been facing several matters where the
employees, who are similarly situated, have been claiming interest.
4.2 On the other hand, learned advocate for the respondent-original
petitioner tried to submit that the court had rightly granted interest at 6%.
She further pointed out that at the time of hearing of the appeal, interim
order was passed by the court in which it was recorded that, "the interest
which shall be paid as per this order would be subject to outcome of the
Appeal". She submitted that the respondent-original petitioner is already
paid the interest amount of Rs. 43,487/-. It was submitted that any order
directing recovery of the said amount would operate harsh on the
petitioner.
5. On a careful consideration of the controversy, there are at least
three reasons as to why directions issued by learned single Judge
regarding payment of interest could not sustain. Firstly, no reasons are
supplied by learned single Judge for issuing direction to pay the interest
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C/LPA/249/2023 ORDER DATED: 12/01/2024
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more particularly when in the similarly situated cases, the interest has not
been awarded. Secondly, in other cases mentioned above, which were
Hemant Harilal Bhatt (supra) and Darshak Natvarlal Antani (supra),
no direction regarding interest is issued and the interest is not granted.
No good ground could be made out to make any exception. Thirdly, the
relief of setting aside the action of recovery is based on the decision of
the Supreme Court in State of Punjab vs. Rafiq Masih [AIR 2015 SC
696], in which also, while setting aside the recovery part, the Supreme
Court did not awarded interest.
6. For all the aforesaid reasons, learned single Judge was not justified
in awarding interest. The said part of direction in the impugned judgment
and order, which is under challenge in this Letters Patent Appeal, could
not sustain. However, since the respondent-original petitioner has been
paid interest pursuant to interim orders and that he is a retired person, it
would operate harsh, if the amount is recovered from them. Therefore,
while holding the grant of interest to be not justified in law, when the
interest is already paid to the present respondents, it shall not be
recovered.
6.1 As in the eye of law, interest could not have been granted, it is
observed and provided that in all other similar cases, which may arise or
which may have been arisen, the Municipality shall not be liable to pay
interest.
7. The present Letters Patent Appeal is allowed to the aforesaid extent
and in the said terms.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
C.M. JOSHI
