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LPA/2192/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2192 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8627 of 2009
With
CIVIL
APPLICATION No. 11074 of 2010
In
LETTERS PATENT APPEAL No. 2192 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
KISHOR
CHIMANLAL GAUD - Appellant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Appellant(s) : 1,
MR NJ SHAH AGP for Respondent(s) : 1
-4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 21/09/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appeal is admitted. Learned AGP Mr NJ Shah waives service of notice
of admission of appeal for the respondents. Since narrow question of
law is involved, the matter is taken up for final hearing on the
request of the parties.
2. The
appellant approached this Court with Special Civil Application
No.8627 of 2009 to challenge the order dated 24.4.2008 passed by the
District Development Officer, Ahmedabad. The appellant-petitioner was
granted higher grade pay scale earlier but as it resulted into
financial loss, he requested for withdrawal of the same by cancelling
the option exercised by the appellant-petitioner. The same was
objected to by L.F. Audit on the ground that withdrawal of option was
permissible only to those employees who had secured C grade.
The appellant-petitioner did not fall in that category and,
therefore, the said order was passed cancelling the withdrawal of
option and fixing the pay scale de novo as per rules. On fixation of
pay-scale, there is no dispute. The order also required a note to be
made in the service book of the appellant and recovery of the excess
amount paid to the appellant-petitioner.
3. The
appellant-petitioner challenged the said order on the ground that no
audience was given to him before passing the order and the learned
Single Judge relying on the decision of the Apex Court in the case of
M.C. Mehta vs. Union of India, AIR 1999 SC 2583 dismissed the
petition observing that the order is not required to be quashed and
set aside in exercise of powers under Article 226 of the Constitution
of India on the ground that the same is in breach of principles of
natural justice. It is not always necessary for the Court to strike
down the order merely because the order has been passed in breach of
natural justice. No illegality in the order was indicated to the
learned Single Judge.
4. Even
in this appeal, the ground for challenge to the order is financial
loss and breach of principles of natural justice, besides delay in
passing of the order.
5. There
is no challenge to the order granting benefit of the higher grade pay
scale dated 1.6.1987 to the petitioner. It is also to be noted that
the order is passed on the basis of objection by Local Fund Office.
If that is considered, there is no inordinate delay.
6. We
do not find any defect in the order dated 24.4.2008 impugned in the
petition so far as it relates to cancellation of withdrawal of option
exercised by the appellant-petitioner and restoration of his
pay-scale. However, the order also speaks of making a note in the
service book and recovery fo excess amount paid.
7. In
our opinion, the order of recovery is not sustainable. Whatever
excess amount was paid to the appellant-petitioner was paid to him
not out of any fraud or deceit on his part. The excess amount was
paid to him through a mistake. In such a situation, such amount
cannot be recovered. Reference can be made to a decision of the Apex
Court in Babulal Jain vs. State of M.P. & Ors., (2007) 6 SCC 180.
Reference can also be had to an unreported decision of this Court in
Letters Patent Appeal No.578 of 2000 in Special Civil Application
No.2196 of 1999 dated 4.4.2001 where the Court observed that for the
mistake committed by the employer, the employee cannot be penalised.
Recovery of excess payment made to the employee for no fault on his
part would be unjustified. In our view, therefore, this part of the
order impugned in the petition ought to have been set aside by the
learned Single Judge.
8. Under
the circumstances, the appeal deserves to be partly allowed and is
accordingly partly allowed. The order dated 10.9.2009 passed in
Special Civil Application No.8627 of 2009 is confirmed and the order
of the District Development Officer, Ahmedabad dated 24.4.2008 is
also confirmed to the extent that it relates to cancellation of
withdrawal of option and refixation of pay-scale of the
appellant-petitioner. The order of D.D.O. directing recovery of
excess amount is set aside. The appeal to that extent is allowed. No
costs.
9. Since
the appeal is disposed of, the civil application also stands disposed
of accordingly.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
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