SCA/4885/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4885 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 the civil judge ? ========================================================= AHMEDABAD MUNICIPAL CORPN. - Petitioner Versus VADILAL GOVINDBHAI PATEL - Respondent ========================================================= Appearance : MR RM CHHAYA for Petitioner : 1, MR AS SUPEHIA for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 26/11/2008 ORAL JUDGMENT 1. Rule. Mr. Supehia, learned advocate waives service of Rule. By consent, Rule is fixed SCA/4885/2008 2/9 JUDGMENT forthwith. 2. The Corporation has assailed the Award and Order dated 4.1.2007 passed in Reference (IT) No. 77 of 2004 setting aside the order dated 25.1.1989 and directing the petitioner Corporation to pay to the respondent workman the retirement benefits considering him as Sub-inspector in the relevant pay scale enjoyed by him as on 28.9.1993 and further directing that the Corporation shall not recover the incremental difference from the workman which he drew up to the date of his retirement. 3. Facts in brief deserve to be set out as under: The respondent workman at the relevant time was holding post of Sub-Inspector by local arrangement as he had not passed the Departmental Examination for being appointed on the said post and he in fact held substantively the post of Tracer. On account of his inability to clear the examination within stipulated time and chances or trial, he came to be reverted vide order dated 25.1.1989. The respondent workman assailed the same by filing Civil Suit being Regular Civil Suit No. 1178 of 1989, wherein, as record indicates, the said reversal order was stayed. As the workman had attained the age of superannuation on SCA/4885/2008 3/9 JUDGMENT 31.12.1996, during pendency of the suit, a notice of motion came to be filed on his behalf for obtaining retirement benefits, wherein, order was passed to pay him the pensioner benefits including gratuity etc which was paid as if the workman retired as Tracer only and not as Sub-Inspector. Ultimately, the suit came to be dismissed for default on 28.10.2002. Thereafter, workman raised dispute, which came to be referred to the Competent Authority, wherein, it was numbered as Reference (IT) No. 77 of 2004. The terms of Reference reads as under: Whether the order No. GDEST/F/2688, resolution No. 204 dated 25.1.89 given Shri Vadilal Govindlal Patel should be set aside and whether he should be given retiral benefits of sub-inspector with the benefit of 9, 18, 27? The Tribunal vide its order dated 4.1.2007 allowed the Reference and passed the order as stated herein above, which is impugned in this petition under Article 226 of the Constitution of India. 4. Shri Chhaya, learned counsel appearing for the petitioner heavily relied upon the decision of the Apex Court in case of Union of India & Another Vs. Narendra Singh reported in (2008) 2 p.750 and submitted that the award impugned SCA/4885/2008 4/9 JUDGMENT cannot be sustained for a minute as it has proceeded on absolutely erroneous presumption and provisions of law. The Tribunal has proceeded on the footing that as reversion order had not been effected and as the workman retired on 31.12.1996, he was entitled to receive pensionery benefits and retirement benefits on the post as if he had been entitled to receive the wages and emoluments as if he was regularly appointed as Sub-Inspector. Though the fact reveals that the workman could not clear the departmental examination for being eligible for being appointed on the post of Sub-Inspector. The award therefore, is required to be quashed and set aside. 5. Shri Chhaya submitted that as the reversion was stayed by the competent court, the same could not have been considered by the Tribunal for holding in favour of the workman. He therefore, submitted that even not only that the workman was not entitled to receive the retirement benefits as if he was appointed as Sub-Inspector but the Corporation is entitled to effect recovery as the order and award impugned in this petition is not sustainable in eye of law. 6. Shri Supehia, learned counsel appearing for the respondent vehemently submitted that the workman was not required to clear any departmental examination as he had attained the age of 45 SCA/4885/2008 5/9 JUDGMENT years of age and subsequent resolution which amended the original Rule 5 also did not take away the effect of non passing of examination and it merely provided for stoppage of increment in that very scale. Shri Supehia further submitted that the observation of the Tribunal cannot be said to be perverse or illegal or erroneous so as to call for any interference of this Court under Article 226 of the Constitution of India. Shri Supehia submitted that impugned order of reversion dated 25.1.1989 had been passed without affording any opportunity to the workman and therefore, the same was erroneous and untenable in eye of law. The reasoning adopted by the Tribunal cannot be said to be perverse so as to warrant any interference. The principle of natural justice were absolutely violated while passing the impugned order and therefore, when the workman continuously worked till the date of his retirement i.e. 31.12.1996 as Sub-Inspector, he was rightly held to be entitled to receive the retirement benefits. Shri Supehia without prejudice to the aforesaid contention submitted that in case the Court is inclined to reverse the order and award impugned, then also, the Corporation shall not be permitted to effect the recovery on the basis of the impugned reversal order dated 25.1.1989 as the fact remained to be noted that workman discharged his duty as Sub-inspector till he attained the age of superannuation and he was SCA/4885/2008 6/9 JUDGMENT permitted to retire on 31.12.1996. He submitted that in view of this, the petition deserves to be dismissed. 7. This Court has heard learned counsel for the parties at length and perused the award impugned. The Tribunal has proceeded on the footing that the workman in fact worked on the post of Sub-Inspector uninterruptedly despite there being an order of reversal which has never been implemented and therefore, he was entitled to receive the retirement benefits also on that basis. The Tribunal, therefore, appears to have patently erred in not appreciating the fact that impugned order dated 25.1.1989 had been stayed by the Competent Court and as by now, it has been crystallized that any interim order inuring during the pendency of the suit or proceedings, shall have no effect of changing the equities or rival contention of the parties' pleading. In the instant case, therefore the premise on which the justification is recorded for treating the workman to be Sub-Inspector and entitling him for the purpose of that basis, appears to be untenable in eye of law and therefore, the same cannot be sustained. As it is stated herein above, the petitioner has even resisted the act of Reference being made by contending that at the time of retirement i.e. on 31.12.1996, the workman was paid his retiral dues including the pension on the basis of as if he is retiring as SCA/4885/2008 7/9 JUDGMENT 'Tracer' and not on the basis of as if he was retiring as 'Sub-Inspector', which the workman has accepted and therefore, the award, which is made in the year 2007 ought not to have been made. 8. The findings of the Tribunal with regard to non applicability of the amendment for not withdrawing the benefits or non passing the departmental examination go to show that the sole ground on which the Tribunal declared that the respondent workman be entitled for benefits was non-implementation of the reversion order dated 25.1.1989 and the continuous service of the workman on the post of Sub-Inspector. This Court is unable to accept the submission of Shri Supehia that finding of the Tribunal with regard to applicability of the circular giving exemption for promotion from appearing in the test for being promoted on attaining the age of 45 years or for getting the benefit of 9, 18 and 27 years, as it is contrary to record of the Tribunal. As it could be seen from the record, the Tribunal has unequivocally stated that nothing is produced to show that said circular or GR is applicable to the Corporation. In light of this finding, this court is of the view that the basis for declaring workman entitled for receiving the retiral benefits including pension on the basis as if he is retiring on 31.12.1996 as Sub-Inspector is palpably erroneous, perverse SCA/4885/2008 8/9 JUDGMENT and therefore, the same deserves to be quashed and set aside. 9. This bring the Court to consider the submission with regard to possible recovery as a result of this, order, whereunder the impugned order is quashed and set aside, the fact remains to be noted that the workman was permitted to discharge his duty as Sub-Inspector till he attained the age of superannuation on 31.12.1996 and therefore, any monetary benefits, which have been already granted to the workman and which he has actually received cannot be permitted to be recovered. As otherwise, it would work as untold hardship and as per the Apex Court decision also in such a case, the recovery would not be permissible. Looking to the peculiar facts and circumstances of the case, the judgment indicating that the recovery is permissible is not applicable. Be that as it may. This Court in its discretion is of the view that the Corporation shall now not effect the recovery of any kind whatsoever. Suffice it to say that the workman had been paid the gratuity and other retiral benefits as if he was Tracer and retired as Tracer and therefore, the quashing and setting aside of the Award impugned in this petition would not entitled Corporation petitioner for effecting any recovery on that basis. Shri Chhaya, from the record states that impugned order has not been implemented and the SCA/4885/2008 9/9 JUDGMENT workman is paid his retiral benefits only on the basis as if he retired as Tracer. Accordingly, there would not be any question of effecting any recovery till date. 10.In view of the aforesaid, the petition is allowed. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) pallav