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2024 Supreme(Guj) 705
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
PRANAV TRIVEDI, J.
Dilip C Dani – Appellant
Versus
Union Of India & Anr. – Respondents
R/Special Civil Application No. 7441 of 2017
Decided on : 09-05-2024
Advocate Appeared:
For the Appellant : MR. SAHIL M SHAH
For the Respondent: MR.D.M.DEVNANI
IMPORTANT POINT
The recovery procedure for public money should be in accordance with the law and judicial discretion may be exercised in relief against recovery. The court emphasized that the payment was not wrongful but just entitlement.
Headnote:
Fitment Formula - Recovery of Erroneous Payment - Fitment Formula of 01.07.1989 - Recovery of public money - Justification of recovery - Acceptance of wrongful payment - Recovery procedure - Judicial discretion in relief against recovery
Fact of the Case:
The petitioner joined the service of the respondent - Bank and was promoted to Middle Management Grade Service–II. He received communication informing him of his promotion to Middle Management Scale–III with a basic pay of Rs.15,380/-. Subsequently, the respondent claimed that an amount of Rs.42,698.10/- was inadvertently paid to the petitioner and initiated recovery without providing an opportunity to be heard. The petitioner accepted the communication under duress and chose to retire voluntarily. The petitioner challenged the recovery and communications dated 04.01.2011 and 15.11.2013.
Finding of the Court:
The court found that the petitioner was rightfully given the increment in the year 2002 – 2003 and the recovery done by the respondent in the year 2010 was not just and proper. The court held that the recovery procedure was not permissible in law and the acceptance made by the petitioner was vulnerable. The court also noted that the recovery was not wrongful payment but just entitlement.
Issues: The issues to be adjudicated were whether the petitioner was rightfully given the increment in the year 2002 – 2003 and whether the recovery done by the respondent in the year 2010 was just and proper.
Ratio Decidendi: The Fitment Formula of 01.07.1989 explicitly states the procedure for increment on promotion and the court found that the respondent's contention regarding the petitioner's basic pay scale was not just and proper. The court also noted that the recovery procedure initiated by the respondent was not permissible in law and the acceptance made by the petitioner was vulnerable. The court emphasized the judicial discretion in relief against recovery and held that the payment was not wrongful but just entitlement.
Final Decision: The petition succeeded and the respondents were directed to refund the amount of Rs.42,698.10/- to the petitioner within a period of 4 weeks from the date of passing of the order. If the payment of arrears was not made within 4 weeks, there would be additional interest at the rate of 9% per annum. Rule was made absolute and no order as to costs.
JUDGMENT :
1. Heard Mr. Sahil M. Shah, learned advocate appearing for the petitioner and Mr. D.M. Devnani, learned advocate for Nanavati Associates for the respondent.
2. The petition is preferred by praying for the following reliefs:
“15(A) Your Lordships may be pleased to issue a writ of certiorari or in the nature of certiorari quashing and setting aside the wrongful recovery of Rs.42698.10/- made on 27.12.2010 and further be pleased to quash and set aside the communication dated 04.01.2011 issued by Assistant General Manager, Bank of India and 15.11.2013 issued by Deputy Zonal Manager, Bank of India, to the Petitioner;
(B) Your Lordship may be pleased to issue a writ of mandamus or in the nature of mandamus directing the concerned Respondents to consider the fitment to be Rs.15,380/- as on 01.04.2002, as per the communication dated 10.06.2002 and further be pleased to direct the concerned Respondents to act in accordance with the communication dated 10.06.2002 issued by Personnel Department, Ahmedabad Zone, Bank of India and to grant all the arrears along with interest and other consequential benefits thereto;
(C) Your Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus directing the concerned Respondents to refund the amount of Rs.42698.10/- to the Petitioner herein along with interest at the rate of 9 percent per anumn till the date of realisation;
(D) Pending admission, final hearing and disposal of the petition, Your Lordships may be pleased to direct the Respondents to consider the fitment to be Rs.15,380/- as on 01.04.2002 as per the order dated 10.06.2002 and to grant the consequential benefits thereto;
(E) Ad-interim reliefs in terms of para (D) may kindly be granted;
(F) Pass such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted;”
3. The brief facts are as follows:
3.1. The petitioner joined the service of the respondent - Bank on 19.08.1974 and thereafter was promoted to Junior Management Grade Service–I on 15.07.1982. He was thereafter promoted to Middle Management Grade Service–II on 03.03.1993. It is the case of the petitioner that he received communication from the Chief Manager (Human Resources) of respondent on 01.04.2002, pursuant to which, he was promoted from Middle Management Scale–II to Middle Management Scale–III. The communication further informed the petitioner that his basic pay would be Rs.15,380/-.
3.2. It is the case of the petitioner that despite no audit query or remark/observation raised on the fitment salary payments, suddenly almost after a period of 8 years, a letter dated 04.01.2011 was issued stating that an amount of Rs.42,698.10/- was inadvertently paid by the respondent to the petitioner by way of an increment and was recovered in the salary process of the year 2010, without providing any opportunity of being heard. It is this communication, dated 04.01.2011, which is impugned in the present petition. Further, it was after this recovery that an explanation was sought for from the petitioner and it was informed that the stagnation increment for the petitioner was due on 01.08.2003 and subsequently, on 01.04.2002, fitment was erroneously paid at Rs.15,380/- comprising of one stagnation increment. According to the respondent, such stagnation increment was given inadvertently, as there was no availability of the increment in the time scale of pay, resulting in the 1st stagnation increment. Pursuant to the communication dated 04.01.2011, the petitioner also conceded on 07.01.2011 that there was a mistake in fitment determination. Therefore, on 07.01.2011, petitioner accepted the contents of communication dated 04.01.2011 and subsequently, the petitioner chose to retire voluntarily on 19.04.2011. Pursuant to communication dated 04.01.2011, petitioner received another communication on 03.01.2013, whereby the Deputy Zonal Manager, Bank of India, inter alia informed the petitioner that the He
