Heard learned counsel for the petitioners and learned counsel appearing for the respondents.
By means of these aforementioned writ petitions, the order dated 16.03.2005 has been challenged, by which the pay-scale of the petitioners has been reduced and they have been put in lower scale of pay.
The brief facts of the case are that petitioners were appointed on the post of Assistant Accountant in the then pay scale of Rs.100-180. Along with the petitioners, certain persons were appointed on the post of Typist in the same pay-scale of Rs.100-180 and they were also equally placed with the petitioners. The pay-scale of the Typist was revised to the pay-scale of Rs.120-220, which was subsequently revised to Rs.150-260. The Assistant Accountants raised an industrial dispute by means of Case Nos.37 of 1997 and 01 of 1987 and by means of an award dated 09.05.1978, the pay-scale of the Assistant Accountants was equated w.e.f. 01.04.1971 and the same was accepted. The said award was challenged before Hon'ble the Apex Court, but the appeal was dismissed on 18.01.1984. Another award dated 12.12.1988 was challenged, against which, the appeal was also dismissed by Hon'ble the Supreme Court of India on 24.10.1989. Although the petitioners were designated as Accountants but their pay-scales remained the same as admissible to the Assistant Accountants and the alleged promotions, so given, became infructuous. The petitioners are subsequently placed in the higher pay-scale on completion of 10 years and 16 of service. The petitioners were given first promotional pay-scale of Rs.5000-8000 w.e.f. 01.03.1995 and the second promotional pay-scale of Rs.8000-13500 was sanctioned w.e.f. 01.03.2000. A person can be said to have been promoted when there is enhancement in the pay-scale but in the present case, there was no enhancement in the pay-scale. On 09.04.2001, the Managing Director of the Bank issued an executive order to the effect that the employees, who have rendered 24 years of service, shall be given super time scale and the authorities issued order on 15.05.2001, by which the petitioners were given the time scale of Rs.8000-275-13500 w.e.f. 01.03.2000. Subsequently the Managing Director issued order dated 23.01.2002 and cancelled the order dated 15.05.2001 and constituted the Committee. The order dated 23.01.2002 was passed without affording any opportunity of hearing to the petitioners. During this period, the Typists also continued on the pay-scale of Rs.8000-13500. By order dated 16.03.2005, the pay-scale of the petitioners was reduced and the orders dated 15.05.2001 to 15.01.2002 as well as order dated 29.01.2002 were cancelled. The reduction of pay of the petitioners has caused financial loss to them, which is arbitrary and violative of provisions of the Constitution. Therefore the said order, by which the reduction in the pay-scale has been done, is liable to be set aside.
In the counter affidavit, the respondents have taken plea that the order was passed in pursuance of the directions contained in the Government Order dated 03.09.2001, therefore, there is no illegality. It has also been mentioned in the counter affidavit that because the petitioners were given one promotion, therefore, they were not entitled for two time scales. All the petitioners were given promotion to the post of Branch Accountant/ Senior Clerk during the period from 1976 to 1986. Therefore, in view of the provisions contained in sub-para-2 (Ka) of the Government Order dated 03.09.2001, no other benefits were admissible to such employees.
Learned counsel for the petitioners has submitted that as the Government Order dated 03.09.2001 is not retrospective, therefore, it has to be interpreted as prospective. It has also been submitted that petitioners were given scale because they had completed 24 years of service. It has also been submitted that while reducing the pay-scale, no opportunity was afforded to the petitioners. It has also been submitted that grant of scale to the petitioners was not by way of mistake but it was in compliance of the Government Orders.
In support of his submission learned counsel for the petitioners has relied upon the case Chandi Prasad Uniyal and others vs. State of Uttarakhand and others reported in (2012) 8 Supreme Court Cases 417, in which the Hon'ble Apex Court in paras-11, 12, 13 and 14 has held as under.
"11. We may in this respect refer to the judgment of a two-Judge Bench of this Court in Col. B.J. Akkara case where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:
"Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
12. Later, a three-Judge Bench in Syed Abdul Qadir case supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows:
13. "Undoubtedly, the excess amount that has been paid to the appellants -teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
(emphasis added)"
We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment".
Learned counsel for the petitioners has further relied upon the case Kusheswar Nath Pandey vs. State of Bihar & others reported in 2014 (1) LBESR 561 (SC), in which the Hon'ble Apex Court in paras-8, 9, 10, 11 and 12 has held as under:-
"8. Mr. Rai, learned Senior Counsel for the appellant points out that there was no fraud or misrepresentation on the part of the appellant. The appellant was given a time bound promotion by the concerned Department. If at all the examination was required to be passed, he has passed it subsequently in 2007 much before the cancellation orders were issued in 2009. Mr. Rai relied upon two judgments of this Court in case of Bihar State Electricity Board and Anr. vs. Bijay Bhadur and Anr. reported in (2000) 10 SCC 99 and Purushottam Lal Das & Ors. vs. State of Bihar & Ors. reported in 2007 (1) LBESR 19 (SC): (2006) 11 SCC 492 wherein it has been held that recovery can be permitted only in such cases where the employee concerned is guilty of producing forged certificate for the appointment or got the benefit due to misrepresentation.
9. The learned counsel for the State of Bhiar submitted that under the relevant rules passing of this examination was necessary. He referred us to the counter affidavit of the respondent No. 1 wherein a plea has been taken that under the particular Government Circular dated 26.12.1985 the amounts in excess are permitted to be recovered. He relied upon Clause (j) of the Government Circular dated 1st April, 1980 to the same effect.
10. Mrs. Jain, learned Additional Solicitor General appearing for the Accountant General drew out attention to another judgment of this Court in Chandi Prasad Uniyal & Ors. vs. State of Uttarakhan & Ors. reported in 2012 (3) LBESR 692 (SC): JT 2012 (7) SC 460: (2012) 8 SCC 417, and particularly paragraph 14 thereof which states that there could be situation where both the payer and the payee could be at fault and where mistake is mutual then in that case such amounts could be recovered.
11. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the Authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and then the relevant rules are being relied upon and that too after appellant had passed the required examination.
12. In our view, this approach was totally unjustified. The Learned Single Jude was right in the order that he has passed. There was no reason for the Division Bench to interfere. The appeal is therefore allowed. The judgment of the Division Bench is set aside. The writ petition filed by the appellant will stand decreed as granted by the Learned Single Judge. The parties will bear their own costs".
Learned counsel for the petitioners has also relied upon the case Chandra Singh vs. State of Rajasthan reported in 2003 SCC (L & S) 951, in which the Hon'ble Apex Court has held as under:-
".......... It is fairly well settled that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit (See Mohinder Singh Gill vs. Chief Election Commr.). It may be true that mentioning of a wrong provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr. Rao. But the said principles cannot be applied in the instant case as the said provisions operate in two different fields requiring compliance with different prerequisite".
Learned counsel for the respondents has submitted that as per the Government Order dated 02.12.2000, only two time scales were payable if there has been no promotion. It has also been submitted that the previous Government Order was misinterpreted, therefore, the subsequent Government Order is like a clarification. It has also been submitted that because as per rules, two pay-scales could be granted if there has been no promotion, but in the present case, the petitioners have been granted promotion in view of the award.
Learned counsel for the respondents has further submitted that as per the existing Government Orders, which have been adopted by the respondents, the petitioners were entitled either for one promotion and one time scale or in case there has been no promotion then two time scales. He has further submitted that the time scales granted between 15.05.2001 to 15.01.2002 and 29.01.2002 were third time scale, for which, they were not entitled.
The whole controversy took birth by the Government Order dated 03.09.2001, by which the previous Government Orders were amended. It is not disputed that the respondents have adopted in-toto the Government Orders issued by Finance Department of Government of U.P. Para-2 (Ka) of the said Government Order dated 03.09.2001 has been relied upon by the respondents, which provides that if an employee has not got two promotions/ next pay-scale till the completion of 24 years of service on 01.03.2000, whichever is later, the second promotion/ next pay-scale could be granted. The respondents, who had adopted the Government Orders of the Finance Department, had issued the order dated 03.10.2001 in accordance with the said Government Order dated 03.09.2001. Accordingly, following the Government Order as well as the order of the Managing Director, the order dated 16.03.2005 was passed, by which the orders issued in between 15.05.2001 to 15.01.2002 as well as order dated 29.01.2002 were set aside and it was also directed that if the employees have drawn excess salary then it should be adjusted from their dues or the future salary.
The main question for consideration is whether the petitioners have been promoted as claimed by the respondents or they have been deemed to have been promoted in compliance of the award dated 09.05.1978.
For deciding this controversy, the reference to the award of Case No.37 of 1977 dated 09.05.1978 is relevant. The Industrial Tribunal (II) U.P. has held as under:-
"The decision becomes even erroneous in its retrospective effect from 01.04.1971, as if workmen appointed as junior typists in the junior grade were automatically treated as appointed in the higher grade of senior typists. The decision becomes also suspiciously motivated in starting the chain of promotion of a group with the advancement in grade of only 13 typists without assigning reasons. There is no way of reversing what has been done, administratively the balance can be restored only by similar promotion 65 of the workmen concerned, barring Sl.No.53, who were employed with the Bank concerned prior to 14.07.1971 which is the date of appointment of the last promoted typists, to next higher grade of branch accountants/ senior clerk/ senior typists, and making it effective retrospectively from 01.04.1971, as in the case of the promoted typists.
Accordingly, my award is as follows:-
Workmen concerned from Sl.No.1 to 52 and from Sl.No.54 to 66, who were employed with the bank concerned prior to 14.07.1971 shall be placed in the next higher grade of Branch Accountants/ Senior Clerks/ Senior Typists, alternatively mentioned in Ext. E-4 as Shakha Ankik/ Lekha Lipik/ Praver Tankak with retrospective effect from 01.04.1971. The scale applicable to these workmen will, of course, be Rs.280-450 ex-post facto as given in column 4 against Sl.No.8 of the order of the Registrar, Cooperative Societies, U.P. Dated 25th March, 1974. The workmen concerned at Sl. No.53, Smt. Vijya Srivastava, having joined the Bank on 11.12.1972 will be entitled to such promotion in her turn only and is not covered by the above".
For the said award, the reference was to the extent that whether non revision of pay equivalent to Typists is justified or not. In that award, the question or dispute regarding promotion was not involved but the main dispute involved was that the pay-scale of Junior Clerk/ Assistant Branch Accountants was lower than the pay-scale of the Typists. Learned Tribunal after considering all aspects of the matter has restored the balance administratively and has directed that the employees, who were employed with the Bank prior to 14.07.1971 which is the date of appointment of a last promoted Typists, the Branch Accountants/ Senior Clerks shall be placed in the next higher grade with retrospective effect from 01.04.1971.
Admittedly, the said award was challenged before Hon'ble the Supreme Court by way of Civil Appeal No.1956 of 1981, by which the appeal has been dismissed.
Perusal of the aforesaid order of the Industrial Tribunal reveals that it was not a promotion given to the petitioners but their pay-scales were equated with a last promoted Typists. There is vide difference between a promotion and a promotional pay-scale. In the promotion, the scale of pay is enhanced as well as the promotee employee is also burdened with higher duties and responsibilities. But in the promotional pay-scale, the scale is revised but the duties remain the same.
In view of the above, I do not find any substance in the submission of learned counsel for the respondents that the petitioners shall be deemed to have been promoted inconsonence of the award dated 09.05.1978. By the award dated 09.05.1978, the petitioners have not been promoted but they have been granted promotional pay-scale equivalent to the last promoted Typist as on 14.07.1971. Therefore, it cannot be said that the said revision of pay-scale is covered by the term "promotion".
From the aforesaid discussion, I have come to the conclusion that the scale granted to the petitioners in compliance of the award dated 09.05.1978 does not come within the definition of promotion. Therefore, the scales granted by the order dated 15.05.2001 to 15.01.2002 and 29.01.2002 cannot be said to be the third time-scale.
It is also not disputed that while passing the order dated 16.03.2005, any opportunity of hearing was not granted to the petitioners. In Bhagwan Shukla vs. Union of India and others reported in 1994 LAB I. C. 2493 the Hon'ble Apex Court in paras-2 and 3 has held as under:-
"2. The controversy in this appeal lies in a very narrow compass. The appellant who had joined the Railways as a Trains Clerk w.e.f. 18.12.1955 was promoted as Guard, Grade-C w.e.f. 18.12.1970 by an order dated 27.10.1970. The basic pay of the appellant was fixed at Rs.190/- p.m. w.e.f. 18.12.1970 in a running pay-scale. By an order dated 25th July, 1991, the pay-scale of the appellant, was sought to be refixed and during the refixation his basic pay was reduced to Rs.181/- p.m. From Rs.190/- p.m. w.e.f. 18.12.1970. The appellant questioned the order reducing his basic pay with retrospective effect from 18.12.1970 before the Central Administrative Tribunal, Patna Bench. The justification furnished by the respondents for reducing the basic pay was that the same had been 'wrongly' fixed initially and that the position had continued due to "administrative lapses" for about twenty years, when it was decided to rectify the mistake. The petition filed by the appellant was dismissed by the Tribunal on 17.09.1993.
3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs.190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181/- p.m. from Rs.190/- p.m. in 1991 retrospectively w.e.f. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play inaction warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.07.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this, appeal and set aside the order of the Central administrative Tribunal dated 17.09.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.07.1991 reducing the basic pay of the appellant from Rs.190/- to Rs.181/- p.m. w.e.f. 18.12.1970".
In the aforesaid matter, the Hon'ble Apex Court has set aside the reduction of pay because there was flagrant violation of principles of natural justice and no opportunity of hearing was afforded. In the present case also admittedly no opportunity of hearing has been given to the petitioners while withdrawing the previous orders. Therefore, the impugned order dated 16.03.2005 suffers from illegality.
As pointed out earlier, the whole of the controversy arises due to the Government Order dated 03.09.2001 by the Department of Finance, Government of U.P. The perusal of the aforesaid Government Order reveals that it was an amendment regarding the previous Government Orders. In the said Government Order, it has nowhere been mentioned that if the pay scale of any of the employee has been sanctioned or revised in accordance with the previous Government Orders, then the same shall stand cancelled. There is also no clause in the aforesaid Government Order dated 03.09.2001 that this amendment shall apply retrospectively. If any Government Order is silent about its operation, then it has to be treated as prospective and it cannot be applied retrospectively. Admittedly, the petitioners were granted time scales prior to 03.09.2001, therefore, the said Government Order dated 30.09.2001 is not applicable to the employees who have been granted scales prior to it.
Learned counsel for the respondents has tried to convince this Court that petitioners were granted higher pay scales under mistake and misinterpretation of the Government Order, therefore, they are not entitled for the higher pay scales. The pay scales of the petitioners have been reduced by the order dated 16.03.2005 and in the order dated 16.03.2005, there is no mention to the effect that petitioners have been granted higher pay scales due to mistake or due to misinterpretation or wrong interpretation of the previous Government Orders.
In the present case, it has been argued that the higher pay scales were granted due to mistake but the same does not find in the order dated 16.03.2005. In view of the law laid down by the Hon'ble Apex Court in the case Chandra Singh vs. State of Rajsthan (supra) the said mistake cannot be supplemented by an affidavit.
In Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (supra), the Hon'ble Apex Court considering the fact that as now the appellants have either retired or are on the verge of it, therefore, the recovery of amount what has been paid an excess is not justified.
In the present case also the petitioners have retired and even after retirement their retiral dues with regard to the pay scales granted from 01.03.2000, have been withheld.
For the aforesaid reasons, I am of the view that the promotional pay scale granted to the petitioners cannot be termed as promotion. The Government Order dated 03.09.2001 is the amendment and not a clarification and it is to be implemented prospectively. There has been no mistake or misinterpretation of the Government Orders while granting time scale to the petitioners. As no opportunity was granted to the petitioners before passing of the order dated 16.03.2005, therefore, it is liable to be set aside.
I am also of the view that the order dated 23.01.2002 passed by the Managing Director of the respondent-bank, by which the sanction orders issued in between 15.05.2001 to 15.01.2002 have been set aside, cannot be sustained.
For the facts and circumstances mentioned above, all the aforementioned writ petitions are allowed with the following directions:-
(i) The orders dated 23.01.2002 and 16.03.2005, passed by the Managing Director, U.P. Cooperative Village Development Bank Ltd., are set aside.
(ii) The respondents are directed to pay the arrears of salary of the petitioners along with annual increments and arrears thereof treating the orders dated 23.01.2002 and 16.03.2005 as nonest, within six months from today.
(iii) The respondents are also directed to release the amount of gratuity and other retiral dues, within six months from today, failing which, they shall be liable for interest at the rate of 6% per annum from today to the date of actual payment, (if actual payment is made beyond six months from today).
Accordingly, the orders dated 30.07.2010 and 06.04.2010 and 09.11.2009 regarding the petitioner Raj Kumar Mehrotra of Writ Petition No.597 (S/S) of 2011, are also quashed.
It is made clear that the above directions shall be applicable in those matter of the petitioners who have been granted higher pay-scales prior to the date of issuance of Government Order dated 03.09.2001.
Order Date :- 13.11.2014 Suresh/