1. Admit. Mr.Hasit Joshi, learned advocate waives service of notice of admission on behalf of the respondent herein – original plaintiff.
2. In the peculiar facts and circumstances of the case and with the consent of learned advocates appearing on behalf of the respective parties and as there is broad consensus between learned advocates appearing on behalf of the respective parties to dispose of the present Second Appeal as mentioned hereinafter, the present Second Appeal is taken up for final hearing today.
3. Facts leading to the present Second Appeal, in nutshell, are as under:
It appears that initially respondent herein – original plaintiff was appointed on the post of Mistry and thereafter his services came to be terminated and, therefore, he raised industrial dispute, which came to be allowed and order of termination came to be quashed and set aside by the learned Labour Court and the learned Labour Court passed judgement and award of reinstatement with full back wages and continuity in service. It appears that at the relevant time when the respondent herein was to be reinstated, the post of Mistry was not vacant and, therefore, to comply with the judgement and order passed by the learned Labour Court, the appellant - Corporation reinstated the respondent herein – original plaintiff on the post of Naka Clerk. It appears that thereafter one recovery application was preferred by the respondent herein claiming backwages from 05/01/1978 to 02/09/1982 and pursuant to the judgement and order passed by learned Labour Court in Recovery Application, the Corporation paid the backwages to the respondent herein for the period from 05/01/1978 to 02/09/1982. It appears that thereafter the respondent came to be promoted to the post of Inspector by order dated 18/08/2001. Having realized that original appointment of the respondent was on the post of Mistry and there is no direct promotion to the post of Inspector and the Corporation wrongly promoted the respondent on the post of Inspector, after following due procedure (issuing notice, etc.), the appellant-Corporation passed an order dated 06/08/2003 quashing and setting aside the earlier order of promotion of the respondent herein – original plaintiff on the post of Inspector dated 18/08/2001 and reverted the respondent – original plaintiff to the post of Naka Clerk (Octroi Clerk).
By passing the order dated 06/08/2003, the Corporation also passed order of recovery to recover the salary paid to the respondent herein – original plaintiff for the period between 05/01/1978 to 02/09/1982, which was paid on the post of clerk as well as to recover the amount for the period between 18/08/2001 to 06/08/2003, which was paid to the respondent- original plaintiff on the post of Inspector as it was found that order of promotion of the respondent on the post of Inspector was illegal and invalid.
4. It appears that being aggrieved by and dissatisfied with the order of reversal dated 06/08/2003 passed by the appellant-corporation, the respondent herein – original plaintiff instituted Regular Civil Suit No.353 of 2003 in the Court of learned Civil Judge (S.D.), Rajkot and learned Trial Court by judgement and order dated 26/04/2006 dismissed the said suit.
5. It appears that being aggrieved by and dissatisfied with the judgement and decree dated 26/04/2006 passed by the learned Trial Court in Regular Civil Suit No.353 of 2003, the respondent herein – original plaintiff preferred Regular Civil Appeal No.54 of 2006 before learned District Judge, Rajkot and learned Appellate Court by impugned judgement and order dated 08/05/2009 has allowed the said appeal and quashed and set aside the judgement and decree passed by the learned Trial Court dismissing the suit and consequential order of reversal dated 06/08/2003 and appellant-corporation and all its beings are permanently restrained from implementing the said order dated 06/08/2003.
6. Being aggrieved by and dissatisfied with the judgement and order dated 08/05/2009 passed by learned Appellate Court in Regular Civil Appeal No.54 of 2006, the appellant herein – original defendant has preferred the present Second Appeal u/s.100 of the Code of Civil Procedure.
7. It is required to be noted that during the pendency of the proceedings, the respondent herein – original plaintiff has retired on attaining the age of superannuation on 13/06/2011. It appears that because of the pendency of the present proceedings, pension papers of the respondent are not finalized and he is being paid provisional pension only and is not paid amount of gratuity. It is also reported that the Corporation has already recovered difference in salary for the period from 18/08/2001 to 06/08/2003 considering the salary of the respondent-plaintiff on the post of clerk, despite the fact that for the aforesaid period the respondent-original plaintiff worked on the post of Inspector. It is submitted by learned advocate appearing on behalf of the plaintiff that there was mistake on the part of the Corporation in promoting the respondent on the post of Inspector and respondent- original plaintiff worked on the said post, it cannot be said that the Corporation could have recovered the difference in salary. It is further submitted that difference in salary for the period between 05/01/1978 to 02/09/1982 (difference in the salary on the post of Mistry and Clerk) also could not have been recovered as the aforesaid amount is paid pursuant to the order passed by the Labour Court.
8. Mr.Hasit Joshi, learned advocate appearing on behalf of the respondent herein- original plaintiff, under the instruction from his client, has stated at the bar that if the amount already recovered is refunded to the respondent- original plaintiff and order of reversion passed by the Corporation of the respondent - original plaintiff to the post of Naka Clerk is confirmed and pensionary benefit is paid considering the respondent herein – original plaintiff worked on the post of Naka Clerk and to the aforesaid extent the judgement and orders passed by both the Courts below are modified, he has no objection.
9. Mr.Jayant Bhatt, learned advocate appearing on behalf of the appellant-Corporation has stated at the bar that considering decisions of the Hon'ble Supreme Court on the aspect of recovery, he has no objection, if the impugned judgement and orders passed by both the Courts below are modified to the aforesaid extent. Thus, there is broad consensus between learned advocates appearing on behalf of the respective parties to dispose of the present Second Appeal in terms of what is stated hereinabove and the impugned judgement and orders passed by both the Courts below are modified to the aforesaid extent.
10. Having heard learned advocates appearing on behalf of the respective parties and in view of the stand taken by learned advocates appearing on behalf of the respective parties as recorded hereinabove and in view of the above broad consensus between the learned advocates appearing on behalf of the respective parties, the present Second Appeal is partly allowed and the impugned judgement and order dated 08/05/2009 passed by learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Rajkot in Regular Civil Appeal No.54 of 2006 as well as judgement and decree dated 26/04/2006 passed by the learned Trial Court in Regular Civil Suit No.353 of 2003 are hereby modified, as under:
(i) That action of appellant-corporation to recover the difference of salary for the period between 18/08/2001 to 06/08/2003 (difference of salary on the post of Jakat Inspector and Jakat Clerk) is hereby quashed and set aside and whatever amount is recovered by the appellant-Corporation, the same shall be refunded to the respondent herein – original plaintiff within a period of three months from today.
(ii) Any recovery made pursuant to the order dated 06/08/2003 for the period between 05/01/1978 to 02/09/1982 is also directed to be refunded to the respondent herein – original plaintiff by the appellant – corporation within a period of three months from today.
(iii) The order dated 06/08/2003 passed by the appellant – corporation is confirmed to the extent of reversion of the respondent herein - original plaintiff to the post of Naka Clerk and his pensionary benefit to be paid considering as if the respondent herein – original plaintiff has retired on the post of Naka clerk. All other retiral benefits shall be paid to the respondent herein treating the respondent herein – original plaintiff as having been retired on the post of Naka Clerk inclusive of Gratuity. Considering the aforesaid facts and circumstances of the case, all pensionary benefits to be calculated and to be paid to the respondent herein – original plaintiff within a period of three months from the date of receipt of the present order.
The present second appeal is allowed to the aforesaid extent and the judgement and orders passed by both the Courts below are modified to the aforesaid extent.
11. In view of the disposal of the main Second Appeal, no order in Civil Application No.5213 of 2011 and the same is also accordingly disposed of.
*dipti [M.R.SHAH,J]