1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein - original plaintiffs to quash and set aside the impugned judgement and decree dated 21/11/2003 passed by learned Trial Court - learned Civil Judge (J.D.), Gandhinagar in Regular Civil Suit No.143 of 1989 as well as impugned judgement and order passed by learned Appellate Court- learned Presiding Officer, Fast Track Court No.6, Gandhinagar in Regular Appeal No.4 of 2004, by which, learned Appellate Court has dismissed the said appeal preferred by the appellants herein confirming the judgement and decree passed by learned Trial Court.
2. That the appellants herein - original plaintiffs instituted Regular Civil Suit No.143 of 1989 against the respondents herein - original defendants in the Court of learned Civil Judge (J.D.), Gandhinagar challenging the Office Order No.MKM-BRANCH-1/1089/4586/E dated 12/06/1989, by which, appointment of the plaintiffs as Stenographer Grade - I came to be cancelled and the plaintiffs were again appointed and reverted to the post of Stenographer Grade-II. That learned Trial Court dismissed the suit and held that the order dated 12/06/1989 is just, proper and legal. That learned Appellate Court has confirmed the said judgement and decree passed by learned Trial Court decreeing the suit. This Court is not narrating further facts as the dispute in the present second appeal is in very narrow compass.
It is required to be noted that as such original plaintiffs have accepted the judgement and decree passed by learned Trial Court dismissing the suit so far as challenging the order dated 12/06/1989 and reverting them to the post of Stenographer Grade-II is concerned, as original plaintiffs have accepted the order dated 12/06/1989, by which, the plaintiffs were reverted to the post of Stenographer Grade-II, which was challenged before learned Lower Court. However, controversy is now with respect to difference in wages paid to the plaintiffs as Stenographer Grade-I while plaintiffs served as Stenographer Grade-I against the injunction granted by learned Trial Court in Regular Civil Suit No.143 of 1989 as well as in appeal before learned Appellate Court.
3. Mr.Japee, learned advocate appearing on behalf of the appellants herein - original plaintiffs has requested to consider the case of the plaintiffs for recovery of difference in the pay sympathetically by considering the fact that in fact the respective plaintiffs' worked on the post of Stenographer Grade-I, may be under the injunction granted by learned Civil Court. Mr.Japee, learned advocate appearing on behalf of the original plaintiffs, under the instruction from his clients, who are personally present in the Court, has stated at the bar that out of total recovery the plaintiffs may be given concession of Rs.1,00,000/-, meaning thereby, out of total recovery, the plaintiffs may be given concession to the extent of Rs.1,00,000/-. It is further stated that as per earlier order of recovery, so far as appellant No.1 is concerned, total recovery amount is Rs.3,46,435/- out of which total sum of Rs.1,87,500/- has already been recovered subject to the final amount to be recovered by the office and if plaintiff No.1 has been given concession of Rs.1,00,000/-, in that case, plaintiff No.1 is required to be recovered Rs.58,935/-, which can be recovered from plaintiff No.1, which is due and payable by respondent- board towards higher pay difference.
It is further stated at the bar that so far as plaintiff No.2 i.e. R.Santhanakrishnan is concerned, after giving concession of Rs.1,00,000/-, as such excess amount of Rs. 66,815/- is recovered and, therefore, the same is required to be refunded, if at all request of the plaintiffs is considered.
4. Mr.K.H.Baxi, learned advocate appearing on behalf of the respondent-Board, under the instruction from the concerned Officer, has stated at the bar that in the peculiar facts and circumstances of the case more particularly when the plaintiffs did work on the post of Stenographer Grade-I, request of the plaintiffs can be considered i.e. not to recover entire amount due under the recovery and respective plaintiffs may be given concession of Rs.1,00,000/-. Learned advocate appearing on behalf of the respective parties do not invite any further reasoned order.
5. Having heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and orders passed by both the Courts below as well as earlier orders passed by learned Trial Court as well as learned Appellate Court and even this Court while passing the order below Exh.5 and proceedings arising out of Exh.5 and considering overall facts and circumstances of the case, this Court is of the opinion that request made by plaintiffs, which is accepted by defendants i.e. to give concession of Rs.1,00,000/- from the total amount of recovery seems to be just and proper. It is not in dispute that as such the plaintiffs' did work on the post of Stenographer Grade-I, may be under the injunction granted by learned Trial Court and it is a larger question may be considered whether any recovery can be made towards wages paid to the plaintiffs while serving on the particular post may be under an order passed by Trial Court. In the peculiar facts and circumstances of the case and to put an end to the old litigation, which is of the year 1989, it appears to the Court that request made by plaintiffs can be accepted and it will be in the larger interest of both the parties and to put an end to the old litigation, which is of the year 1989.
6. In view of the above and for the reasons stated hereinabove and in view of the above broad consensus arrived at between learned advocates appearing on behalf of the respective parties as recorded hereinabove, under the instructions from their respective clients, the present second appeal is disposed of by directing the respective plaintiffs to pay amount of recovery minus Rs.1,00,000/-, meaning thereby, respective plaintiffs have accepted recovery amount as Rs.3,46,435/- and Rs.3,25,441/- (so far as plaintiff Nos.1 and 2 respectively are concerned) and pursuant to the present order, the plaintiff No.1 is liable to pay Rs.2,46,435/- and plaintiff No.2 is liable to pay Rs.2,25,441/-.
It goes without saying that if any amount is now due and payable by any of the plaintiffs, the same shall be paid by the concerned plaintiffs, as it is reported that so far as plaintiff No.1 is concerned, he will still liable to pay some amount even after deducted amount and the same to be recovered from the amount if any due and payable to the plaintiff No.1, which is reported to be paid under higher pay difference. It goes without saying that if any excess amount is recovered from the any of the plaintiff more particularly plaintiff No.2 as reported, the respondent-board to return the same at the earliest. With this, the present second appeal is disposed of. No costs.
*dipti [M.R.SHAH,J]