Recovery of excess payments from retired employees is impermissible if it causes undue hardship, as established in judicial precedents.

ORDER :

(Biren Vaishnav, J.)

ORDER IN CIVIL APPLICATION FOR DELAY

Heard Ms. Sejal Mandavia, learned advocate for the applicant. Ms. Harshal Pandya, learned advocate appears on behalf of the respondent on advance copy.

Having heard learned advocates for the parties and in view of the averments made in the application, delay caused in filing the appeal is condoned. Application is allowed accordingly.

ORDER IN LETTERS PATENT APPEAL

1. Heard Ms. Sejal Mandavia, learned advocate for the appellant and Ms. Harshal Pandya, learned advocate for the respondent on advance copy. With the permission of learned advocates for the parties, the main appeal is taken up for hearing.

2. This appeal under Clause 15 of the Letters Patent arises out of the order dated 09.11.2023 passed by the learned Single Judge in Special Civil Application No. 14714 of 2020.

3. Briefly stated, the facts before us, indicate that the respondent herein was initially appointed as Port Officer with the appellant – Gujarat Maritime Board. At the time of his appointment on 04.08.1999, albeit there was a condition that he should pass Gujarati, Hindi and departmental exams prescribed from time to time. It appears that he did not do so. On the ground that he had not passed these examinations, the increments that were given to him at the time of appointment and during his service period were recovered from the gratuity amount payable to him on his superannuation on 30.11.2019. This action of the appellant Board was challenged before the learned Single Judge.

3.1 The learned Single Judge considering the decision in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. reported in (2015) 4 SCC 334 set aside the recovery on the ground that such recovery of the terminal benefits is impermissible.

4. Ms. Sejal Mandavia, learned advocate appearing for the appellant Board would rely upon a recent decision of the Apex Court in the case of Balbir Singh Bhandari vs. State of Uttarakhand reported in AIR 2024 SC 701 and press into service paragraph no. 15 of the order of the learned Single Judge. She would submit that the decision in the case of Rafiq Masih (supra) cannot apply in each and every case, particularly when in the present case, the respondent had given an undertaking that whatever amount that can be recovered can be so recovered at the time of payment of gratuity was a strong case in favour of the appellant and in light of the undertaking, such recovery was just and proper.

5. Ms. Harshal Pandya, learned counsel for the respondent would submit that at the time of the appointment of the respondent in 1999 increments were released. Even when the respondent was promoted to the higher post, no case of any nature of his not being entitled to increments was even made out by the authority. The respondent earned the increments during the course of his service and after having retired in the year 2019, the appellant sought recovery after a period of 20 years.

6. We have in the case of Gujarat State Rural Development Corporation Ltd. vs. Sureshbhai Mavjibhai Patel & Ors. rendered in Letters Patent Appeal No. 282 of 2024 and allied matters decided on 28.03.2024 considering the issue of recovery in case of a retired employee also in context of undertaking so give held thus:

“5. Having considered the submissions made by the learned advocate Mr. Munshaw for the appellant, perusal of the order of the learned Single Judge would indicate that based on the decision of the Hon’ble Apex Court in the case of Rafiq Masih (supra), the learned Single Judge set aside the recovery on the parameters that are set out in paragraph 18 of the decision in the case of Rafiq Masih (supra), which the learned Single Judg