- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 4760 OF 1998 Abdul Masjid Mohmad Hanif Jamindar ) Occu.- Retired Head Master, residing at ) 94, Patel Mohalla, 3 Nizampur Gol Bldg., ) 1st Floor, Bhiwandi, District Thane ) .. Petitioner Vs. 1. Administrative Officer, ) Municipal School Board, Bhiwandi ) Nizampur Municipal Council, ) Bhiwandi. ) 2. Dy. Director of Education, Nasik ) 3. State of Maharashtra ) ..Respondents *** Mr. Mandar Limaye i/b R. S. Apte, for the Petitioner. Mr. Girish R. Agrawal i/b R. M. Agrawal, for Respondent No.1. Mr. S. N. Bhosle, AGP for Respondent Nos. 2 and 3. *** - 2 - CORAM : D. D. SINHA & A. A. SAYED , JJ. DATED : FEBRUARY 25, 2010. ORAL JUDGMENT [Per : D.D. SINHA, J.] 1. Heard the learned counsel for the petitioner, respondent No.1 and the learned AGP for respondent Nos. 2 and 3. The counsel for the petitioner submitted that following facts are not in dispute. 2. The petitioner was appointed as a primary teacher on 26-6-1963 in the Municipal School. The petitioner in the month of June 1990 was promoted as Head Master of the said school and had taken voluntary retirement with effect from 1-7-1996. It is case of the petitioner that he was paid salary as per Badkas Commission Revision, then as per Bhole Commission Revision with effect from 1st April 1976 and Chatopadhyay Commission Revision (4th Pay Commission Revision) with effect from 1st January 1986. The petitioner was given benefit of Fourth Pay Commission with effect from 1-1-1986. The petitioner was placed in the senior scale of Rs.1400-2600. It is further submitted that Fourth Pay Commission was made applicable to the Primary Teachers working in the Municipal School vide Government - 3 - Resolution dated 15-1-1990, however, with retrospective effect from 1-1-1986. It is case of the petitioner that his salary was fixed on the date of promotion as Head Master by giving two additional increments of Rs.50/- and the petitioner was made payments of regular increments thereafter. The learned counsel for the petitioner contended that petitioner received the impugned communications dated 6-10-1997 and two impugned communications dated 6-11-1997 whereby the petitioner was informed that he was not entitled to two increments which were given to him on his promotion to the post of Head Master as well as the amount so paid to him will be recovered at the rate of Rs.500/- per month from his pension benefits with effect from January 1997 as well as from his salary. With the result pension of the petitioner would be reduced. The counsel for the petitioner further contended that the petitioner had submitted medical bills for the expenditure incurred by the him for treatment as well as on medicines, which were sanctioned by the Authorities. However, at later point of time, the Auditor raised an objection in this regard and therefore, the amount of Rs.12,693/- in respect of medical bills was adjusted by the Department from the pension benefits of the petitioner which was unjustified. - 4 - 3. The counsel for the petitioner further contended that so far as impugned communications dated 6-10-2009 and two other dated 6-11-2009 are concerned, the issues are covered by the earlier decision of the Division Bench of this Court in the case of Shri Padmakar Madke & Ors Vs. Administrative Officer, Municipal School Board Bhiwandi in Writ Petition No. 56 of 1997. It is contended that the teachers who were similarly circumstanced had filed the writ petition before this Court, which was allowed by the judgment and order dated 12th November 2003 and since this issue is concluded in favour of the teachers by this Court, which expressly covers the cause of action involved in the present writ petition, it is prayed that present writ petition may also be disposed of in view of the law laid down by this Court in Writ Petition No. 56 of 1997. 4. The counsel for the respondents do not dispute the factual and legal aspects of the matter including the fact that the issue involved in this case is covered by the law laid down in the case of Padmakar Madke (supra). It is further contended by the learned counsel for the respondent No.1 that by the said judgment though the rule was made absolute and the impugned communication was set aside, however, - 5 - liberty was given to the respondent to take appropriate action after following the principles of natural justice. Therefore, it is prayed that similar liberty may be given in the present case also. The counsel for the petitioner had submitted that in the present case the petitioner has retired from the service in the year 1996 and as of today he is more than 70 years of age, therefore, it will be highly unjust to allow the respondent to once again proceed against the petitioner and prayed that the impugned communications may be quashed and set aside being violative of principles of natural justice and liberty as prayed by the respondent may not be granted. 5. We have considered the contentions canvassed by the respective counsel. In the instant case the factual and the legal aspect of the matter has not been disputed by the respective counsel. In view of the fact that the issue raised in the petition is covered by the decision of the Division Bench of this Court in the case of Padmakar Madki (supra), it is not necessary for us to adjudicate upon the issue afresh. It is also not in dispute that the issues in the said writ petition as well as the present petition are identical, in all respects and being of similar nature, we wish to reproduce the relevant observations made by the Division - 6 - Bench of this Court in paragraph 7, 8, 9 and 10 of the said judgment which reads thus- “7. We have given anxious consideration to the dispute involved. In this connection it would be proper to refer to the interim order passed by the Court dated 11-6-1997 whereby, it was observed that the disputes was about the proper fixation of the pay scale of the Petitioners and recovery of the alleged excess amount paid to them. The communication dated 10-10-1996 was based on earlier communication dated 24-6-1996 and 25-7-1996 of which copies were not furnished to the petitioner therefore, the court directed that the said copies should be furnished to the Petitioners. However, it appears that the copies of the said basic communications on which the impugned communication were made, have not been provided to this Court also even till this date, which could easily have been done by annexing them to the affidavit in reply. However, the Respondents for the reasons best known to them have not done so, as a result of which we are unable to form any opinion regarding legality and validity of the action sought to be taken by the respondents for reduction as well as recovery of salary amount paid to the petitioners. 8. Be that as it may, the fact remains that the Petitioners were earlier given benefit of the 4th Pay Commission by giving two additional increment on the date of their assuming charge - 7 - as Head Master on respective dates and now evidently the said benefit given to the petitioners is not only sought to be withdrawn but also the allegedly excess amount paid to them is sought to be recovered without giving them an opportunity to make any effective representation in the matter. The learned counsel for the petitioners sought to put reliance on ruling of the Apex Court in the case of Bhagwan Shirke Vs. Union of India & Ors. (1994) 6 Supreme Court Cases 154 wherein it is observed that prior opportunity ought to have been afforded when a reduction in the pay fixed on promotion on the ground of having been wrongly fixed initially is to be made. It is needless to mention that the petitioners were given no opportunity to show cause against the reduction of their basic pay. They were not even put on notice before their pay was reduced by the Respondent department and the order came to be passed behind their back without following any procedural law. There was, thus, been a clear violation of principle of natural justice and the petitioners are made to suffer huge financial loss which cannot be allowed in law. 9. Therefore in view of this position we are of the view that the petition should be allowed with liberty to the Respondent to take appropriate steps according to law.” 6. In the facts and circumstances of the present case as well as the law laid down by this Court, it is evident that the impugned - 8 - communications dated 6-10-1997 and two other dated 6-11-1997, issued by respondent No.1, were violative of principles of natural justice, cannot be sustained in law. 7. The claim of the petitioner regarding the action taken by the respondent for recovery of the amount which was paid towards medical bills is concerned, it appears that the bills submitted by the petitioner were not in the name of the petitioner as per the audit note, and therefore, the Auditor had come to the conclusion that the petitioner was not entitled to claim the said amount and therefore, the medical claim was disallowed and the respondent adjusted the said amount from the pension benefits of the petitioner to which the petitioner was/is not entitled and in our view the respondent No.1 had rightly done so. 8. It is no doubt true that this Court in the case of Padmakar Madki (supra) quashed the impugned communication since it was violative of principles of natural justice and granted liberty to the respondent to proceed against the petitioner, in accordance with the law. However, in the present case, the petitioner retired in the year 1996 and as on today he is about 70 years of age, therefore, granting such liberty to the respondent in our view would not be proper. On the other hand, it - 9 - will be highly unjust to grant such liberty, particularly looking to the old age of the petitioner. 9. For the reasons stated hereinabove, impugned communications dated 6-10-1997 and two other dated 6-11-1997 issued by respondent No.1 are hereby quashed and set aside. Rule is made absolute in above terms. No order as to costs. Sd/- [D. D. SINHA, J.] Sd/- [ A. A. SAYED, J.]