Shivanna vs Managing Director, The Chief Traffic Manager, Managing Director and Bangalore Metropolitan Transport Corporation

H. Billappa, J.—In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the Circulars dated 13.8.10 and 30.8.10/13.9.2010 vide Annexures H and J and notice dated 28.7.2012 vide Annexure-K and has sought for writ of mandamus directing the respondents to settle all retiral benefits. By the impugned circulars at Annexure H and J, the first respondent has directed, whenever reinstatement and continuity of service is ordered without back wages from the date of dismissal till the date of reinstatement the employee is not entitled for grant of annual increment. It is directed to refix the pay in such cases where annual increment has been granted. As per Annexure-K, the petitioner has been called upon to repay the amount of Rs. 1,07,705/- stating that it has been paid in excess.

Briefly stated the facts are:

The petitioner joined service as Conductor on 2.3.1987. The petitioner was dismissed from service on 30.11.91. A dispute was raised in I.D. No. 36/94. The Labour Court by its award dated 20.4.1994 has set aside the order of dismissal and has directed to reinstate the petitioner with continuity of service and without back wages and withholding two increments. Pursuant to the award passed by the Labour Court, the petitioner has been reinstated into service The award of the Labour Court has been implemented vide order dated 15.11.1994 as per Annexure ''B'' granting consequential benefits. Thereafter, the Circulars dated 13.8.2010 and 13.9.2010 have been issued stating that whenever reinstatement and continuity of service is ordered without backwages from the date of dismissal till the date of reinstatement the employee is not entitled for grant of annual increment.

The petitioner has attained superannuation on 30.4.2012. Consequently, the petitioner has been relieved from service. Thereafter, the petitioner has given representation dated 16.7.2012 requesting to settle retrial benefits like P.F., Gratuity, DRBF etc., On 28.7.2012, the 3rd respondent has issued notice as per Annexure ''K'' calling upon the petitioner to pay a sum of Rs. 1,07,705/- on the ground that it has been paid in excess. Aggrieved by that, the petitioner has filed this writ petition.

The learned counsel for the petitioner contended that the impugned Circulars cannot be applied to the petitioner. The impugned notice calling upon the petitioner to pay a sum of Rs. 1,07,705/- is illegal and without authority of law. Further he submitted that the petitioner was dismissed from service. Thereafter, pursuant to the award passed by the Labour Court, the petitioner has been reinstated into service. The award has been implemented as per Annexure ''B'' granting all consequential benefits. Thereafter, the petitioner has retired from service on 30.4.2012 on attaining superannuation. Thereafter, when the petitioner has requested to settle retrial benefits, the third respondent has issued notice at Annexure ''K'' asking the petitioner to repay a sum of Rs. 1,07,705/- on the ground that it has been paid in excess which is totally incorrect and contrary to the decisions of the Hobble Supreme Court. He also submitted that petitioner cannot be asked to repay the amount as there is no fraud or misrepresentation on behalf of the petitioner. He also submitted that when once the salary has been paid and there is no misrepresentation on behalf of the petitioner, the third respondent cannot ask the petitioner to repay the amount. In support of his submission he placed reliance on the following decisions:

1998 LLR 1127

Syed Abdul Qadir and Others Vs. State of Bihar and Others,

Sahib Ram Vs. State of Haryana and Others,

Baburam Vs. C.C. Jacob and Others,

He therefore submitted that the impugned notice cannot be sustained in law.

As against this, the learned counsel for the respondents submitted that the petitioner was dismissed from service and there was no direction to pay the consequential benefits and therefore, the petitioner was not entitled for annual increments. The third respondent has rightly directed the petitioner to repay the amount paid in excess. Therefore, the impugned notice does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is,

Whether the respondent was justified in asking the petitioner to repay the amount of Rs. 1,07,705/- on the ground that it has been paid in excess?

There is considerable force in the submission of, the learned counsel for the petitioner. The petitioner had joined service as Conductor on 2.3.1987. He has been dismissed from service on 30.11.1991. The petitioner has approached the Labour Court in I.D. No. 36/94. The Labour Court by its award dated 20.4.1994 has set aside the order of dismissal and has directed to reinstate the petitioner with continuity of service, without back wages and withholding two increments. The award has been implemented and the petitioner has-been reinstated into service. His salary has been fixed as per Annexure-B vide order dated 15.11.1994. The petitioner has retired from service on 30.4.2012 on attaining superannuation. Thereafter, when the petitioner has requested to settle his claim in respect of P.F., Gratuity, DRBF etc., the third respondent has issued notice as per Annexure-K on 28.7.2012 stating that the petitioner was not entitled for annual increments and a sum of Rs. 1,07,705/- has been paid in excess and therefore, the petitioner has been asked to repay the amount.

It is relevant to note, the petitioner has been reinstated into service pursuant to the award passed by the Labour Court. His salary has been fixed as per Annexure ''B'' vide order dated 15.11.94. The petitioner has retired from service on 30.4.12 on attaining superannuation. The Circulars at Annexures H and J have been issued on 13.8.2010 and 13.9.2010 stating that whenever reinstatement and continuity of service is ordered without backwages the employee is not entitled for annual increment. The salary of the petitioner has been fixed vide order dated 15.11.1994. The circulars have issued on 13.8.2010 and 13.9.2010. When the petitioner has retired from service on 30.4.2012 after attaining superannuation notice at Annexure-K has been issued asking the petitioner to repay the amount of Rs. 1,07,705/- on the ground that it has been paid in excess and the petitioner was not entitled for increment.

The Hon''ble Supreme Court in Baburam Vs. C.C. Jacob and Others, has held that prospective declaration of law can be applied to the cases which would arise in future.

In Syed Abdul Qadir and Others Vs. State of Bihar and Others, , the Hon''ble Supreme Court has observed as follows at para. 57.

This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

Similarly, in Sahib Ram Vs. State of Haryana and Others, the Hon''ble Supreme Court has observed as follows at para. 5:

However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.

It is clear, the prospective declaration of law can be applied for future cases and if the amount has been paid without any fraud or misrepresentation on the part of the employee, it cannot be recovered.

In the present case, the petitioner has been reinstated into service and his salary has been fixed vide order dated 15.11.1994 as per Annexure-B pursuant to the award passed by the Labour Court. It has been paid till the petitioner has attained superannuation on 30.4.2012. It is only when the petitioner has made representation to settle the claim like P.F., Gratuity, DRBF etc., the third respondent has asked the petitioner to repay the amount of Rs. 1,07,705/- on the ground that it has been paid in excess. It is contrary to the decisions of the Hon''ble Supreme Court referred to above. Therefore, the impugned notice at Annexure-K cannot be sustained in law.

Accordingly the writ petition is allowed and the impugned notice at Annexure-K, is hereby quashed. The respondents are directed to settle the claim of the petitioner in respect of P.F., Gratuity, DRBF etc., in accordance with law, within three months, from the date of receipt of a copy of this order.