LPA/500/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 500 of 2008 In CIVIL APPLICATION No. 3699 of 2008 In SPECIAL CIVIL APPLICATION No. 28312 of 2007 With CIVIL APPLICATION No.5263 of 2008 In LETTERS PATENT APPEAL No. 500 of 2008 In CIVIL APPLICATION No. 3699 of 2008 In SPECIAL CIVIL APPLICATION No. 28312 of 2007 With LETTERS PATENT APPEAL No. 501 of 2008 In CIVIL APPLICATION No. 3698 of 2008 In SPECIAL CIVIL APPLICATION No. 28310 of 2007 With CIVIL APPLICATION No.5265 of 2008 In LETTERS PATENT APPEAL No. 501 of 2008 In CIVIL APPLICATION No. 3698 of 2008 In SPECIAL CIVIL APPLICATION No. 28310 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 civil judge ? ========================================================= LPA/500/2008 2/6 JUDGMENT CHAIRMAN AND MANAGING DIRECTORBHARAT SANCHAR NIGAM LIMITED & 2 - Appellant(s) Versus VINODCHANDRA MANCHHARAM TAILOR - Respondent(s) ========================================================= Appearance : MR US BRAHMBHATT for Appellant(s) : 1 - 3. MR GIRISH K PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 21/11/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. With the consent of the learned advocates, the Appeals are heard and decided today. Both these Appeals arise from the order of the learned Single Judge dated 28th March, 2008 made pending the above writ petitions. The respondents are the writ petitioners. The respondent in both these Appeals was the employee of the Post & Telegraph Department of the Government of India. On formation of the Bharat Sanchar Nigam Limited (hereinafter referred to as LPA/500/2008 3/6 JUDGMENT “the Nigam”), the appellant in these Appeals, the service of the writ petitioners was transferred to the Nigam. Accordingly, the pay of the writ petitioners was revised and they were paid salary prevalent in the Nigam. At the time of transfer of their service, a criminal prosecution was pending against each petitioner. The Nigam has, therefore, decided not to absorb the petitioners in its service. As the service of the petitioners is not accepted by the Nigam, the petitioners are not entitled to the salary in the pay scale prevalent in the Nigam but they are entitled to the pay scale prevalent in the Post & Telegraph Department of the Government of India. Thus, over the years, the petitioners have paid salary in excess of the due salary to the extent of Rs.2,39,751/- in respect of the respondent in Letters Patent Appeal No.500 of 2008 and Rs.2,21,139/- in respect of the respondent in Letters Patent Appeal No.501 of 2008. The Nigam, therefore, by order dated 5th October, 2007 directed recovery of the said amount from the salary of the concerned respondent in 180 monthly installments. LPA/500/2008 4/6 JUDGMENT Feeling aggrieved, the respondents have preferred the above writ petitions. Pending the writ petitions, by order dated 1st November, 2007 made by the learned Single Judge, the recovery sought to be made by the Nigam was ordered to be stayed. Feeling aggrieved, the Nigam preferred above Civil Application No.3699 of 2008 and Civil Application No.3698 of 2008 for vacation of the ad- interim relief. The learned Single Judge, by order dated 28th March, 2008, rejected the said applications and confirmed the ad-interim order. Therefore, the present Appeals. Earlier, these appeals had come up for hearing before us on 30th April, 2008. We had disposed of the appeals by directing the respondents to give security to the satisfaction of the Registrar General of this Court for the amount sought to be recovered against them. However, the respondents chose not to give security as directed and instead, filed affidavit of a third party and the solvency certificate issued in respect of the said third party. We have, by our LPA/500/2008 5/6 JUDGMENT order dated 12th November, 2008, held that the affidavit and solvency certificate produced by each respondent was not a security in the terms of the order and was not acceptable. As the respondents were not willing to give security as directed, we recalled our order dated 30th April, 2008 and directed the Appeals to be heard again. We are of the opinion that now it is not possible to secure recovery of the alleged excess payment of salary from each respondent. The relief prayed for by the respondents pending the writ petitions cannot be granted. In above view of the matter, both these Appeals are allowed. The impugned orders dated 28rd March, 2008 made by the learned Single Judge in Civil Application Nos.3699 of 2008 and 3698 of 2008 are quashed and set aside. The Civil Application Nos.5263 of 2008 and 5265 of 2008 are allowed. The interim relief granted against recovery of the excess amount paid to the respondents is vacated. LPA/500/2008 6/6 JUDGMENT The Appeals are allowed in above terms. Civil Applications stand disposed of. The parties will bear their own cost. Registry will maintain copy of this order in each Appeal and the main writ petitions. [Ms. R.M.Doshit, J.] [K.M.Thaker, J.] kdc