# Devi Prasad Katiyar & Ors v. U.P. Sahkari Gram Vikas Bank Ltd. & Anr

- **Citation:** (2014) 3 ILRA 1333
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-24
- **Case number:** Service Single No. 7995 of 2011
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-prasad-katiyar-ors-v-u-p-sahkari-gram-vikas-bank-ltd-anr-43131
- **Pages:** 10

## Headnote

Constitution of India, Art.-226-Petitioner
working as Assistant Accountant-claimed
parity of pay scale as typist-accepted by
Industrial Tribunal equated with pay
scale
of
typist-against
that
special
appeal as well as SLP dismissed-after
successful working period of 10 years
and 15 years-benefit of first promotional
pay given on 01.03.95 and 01.03.2000
respectively-after 24 years super time
scale on 15.05.2001 by subsequent order
16.03.2005 all previous order quashed
without affording
any opportunity
in
garb of G.O. 03.09.01-whether justified ?
held-'no'-unless
G.O.
Provides
otherwise-can
not
be
implemented
retrospectively-quashed-consequential
benefit given.
Held: Para-21 & 26

## Text

3 All].
Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1333
it could be said that it was a fact finding
enquiry and on the basis of a fact finding
enquiry the services of the respondent were
terminated without following the procedure
as prescribed under rule 7 of the Rules. The
impugned order of termination was passed
on 14.5.2012 and he had since superannuated
on 31.7.2012.
11. The Writ Court after considering
the following admitted facts has recorded
the findings in the impugned judgment
dated 24.7.2014 thus:-
"The facts are not in dispute between
the parties. It is admitted that no chargesheet was issued to the petitioner as required
under rule 7 for initiating disciplinary
proceedings for imposing major penalty. The
enquiry had not commenced before the
petitioner
superannuated.
The
learned
counsel for the respondents failed to point
out any rule as to whether disciplinary
proceedings could be initiated against the
petitioner after retirement. Even otherwise,
after retirement the petitioner cannot be
imposed the penalty of termination as the
employer/employee relationship no longer
exists. There is no allegation of causing loss
to the corporation that is to be recovered,
hence no enquiry can be initiated against the
petitioner after retirement. The impugned
order of termination was passed on
14.5.2012 merely on a show cause notice
and two months thereafter i.e. on 31.7.2012
the petitioner retired on attaining the age of
superannuation thus on the date of
superannuation there was no enquiry
pending or contemplated, and admittedly the
procedure as contemplated under rule 7 of
the Rules of 1999 was not followed and
straightway the petitioner's services was
terminated.
For the facts and circumstances stated
herein above, the impugned order dated
14.5.2012 is quashed. The petitioner shall
be entitled to post retirement benefits. The
writ
petition
is
allowed
with
all
consequential benefits. Legal expenses
assessed as Rs. 15,000/-."
12. In view of the above, learned counsel
for the appellants has failed to point out any
rule as to whether disciplinary proceedings
could be initiated against the delinquent
employee after retirement. The order of
termination was passed on 14.5.2012 merely
on a show cause notice and two months
thereafter i.e. on 31.7.2012 he retired from the
service
after
attaining
the
age
of
superannuation. It appears that on the date of
superannuation there was no enquiry pending
or contemplated against the respondent. The
procedure as provided under rule 7 of the
Rules, 1999 was not followed and straight way
the services of the respondent were terminated.
The Writ Court has rightly quashed the
termination order dated 14.5.2012 directing the
appellants to pay post retirement benefits to the
respondents.
13.
For the reasons stated above, the
special appeal is dismissed. No order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2014
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
Alongwith
Service Single No. 3140 of 2005 along
with Service Single No. 2160 of 2005,
Service Single No. 597 of 2011 and
Service Single No. 7995 of 2011
Devi Prasad Katiyar & Ors. ...Petitioners
Versus
U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
...Respondents
1334
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri P.K. Srivastava
Counsel for the Respondents
Sri Himanshu Shekhar Awasthi, Sri Balram
Yadav, Sri N.N. Jaiswal
Constitution of India, Art.-226-Petitioner
working as Assistant Accountant-claimed
parity of pay scale as typist-accepted by
Industrial Tribunal equated with pay
scale
of
typist-against
that
special
appeal as well as SLP dismissed-after
successful working period of 10 years
and 15 years-benefit of first promotional
pay given on 01.03.95 and 01.03.2000
respectively-after 24 years super time
scale on 15.05.2001 by subsequent order
16.03.2005 all previous order quashed
without affording
any opportunity
in
garb of G.O. 03.09.01-whether justified ?
held-'no'-unless
G.O.
Provides
otherwise-can
not
be
implemented
retrospectively-quashed-consequential
benefit given.
Held: Para-21 & 26
21. There is also no clause in the
aforesaid
Government
Order
dated
03.09.2001 that this amendment shall
apply retrospectively. If any Government
Order is silent about its operation, then it
has to be treated as prospective and it
cannot
be
applied
retrospectively.
Admittedly, the petitioners were granted
time
scales
prior
to
03.09.2001,
therefore, the said Government Order
dated 30.09.2001 is not applicable to the
employees
who
have
been
granted
scales prior to it.
26. For the aforesaid reasons, I am of
the view that the promotional pay scale
granted to the petitioners cannot be
termed as promotion. The Government
Order
dated
03.09.2001
is
the
amendment and not a clarification and it
is to be implemented prospectively.
There
has
been
no
mistake
or
misinterpretation of the Government
Orders while granting time scale to the
petitioners.
As
no
opportunity
was
granted to the petitioners before passing
of the order dated 16.03.2005, therefore,
it is liable to be set aside.
Case Law discussed:
(2012) 8 Supreme Court Cases 417; 2014 (1)
LBESR 561 (SC); 2007 (1) LBESR 19
(SC):2006 (11) SCC 492; 2003 SCC (L& S)
951; 1994 LAB I.C. 2493.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Heard learned counsel for the
petitioners and learned counsel appearing
for the respondents.
2.

By
means
of
these
aforementioned writ petitions, the order
dated 16.03.2005 has been challenged, by
which the pay-scale of the petitioners has
been reduced and they have been put in
lower scale of pay.
3. The brief facts of the case are that
petitioners were appointed on the post of
Assistant Accountant in the then pay scale
of Rs.100-180. Along with the petitioners,
certain persons were appointed on the post
of Typist in the same pay-scale of Rs.100180 and they were also equally placed with
the petitioners. The pay-scale of the Typist
was revised to the pay-scale of Rs.120-220,
which was subsequently revised to Rs.150260. The Assistant Accountants raised an
industrial dispute by means of Case Nos.37
of 1997 and 01 of 1987 and by means of an
award dated 09.05.1978, the pay-scale of
the Assistant Accountants was equated
w.e.f. 01.04.1971 and the same was
accepted. The said award was challenged
before Hon'ble the Apex Court, but the
appeal was dismissed on 18.01.1984.
Another award dated 12.12.1988 was
challenged, against which, the appeal was
also dismissed by Hon'ble the Supreme
Court of India on 24.10.1989. Although the
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Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1335
petitioners were designated as Accountants
but their pay-scales remained the same as
admissible to the Assistant Accountants and
the alleged promotions, so given, became
infructuous.
The
petitioners
are
subsequently placed in the higher pay-scale
on completion of 10 years and 16 of service.
The petitioners were given first promotional
pay-scale
of
Rs.5000-8000
w.e.f.
01.03.1995 and the second promotional
pay-scale of Rs.8000-13500 was sanctioned
w.e.f. 01.03.2000. A person can be said to
have been promoted when there is
enhancement in the pay-scale but in the
present case, there was no enhancement in
the pay-scale. On 09.04.2001, the Managing
Director of the Bank issued an executive
order to the effect that the employees, who
have rendered 24 years of service, shall be
given super time scale and the authorities
issued order on 15.05.2001, by which the
petitioners were given the time scale of
Rs.8000-275-13500
w.e.f.
01.03.2000.
Subsequently the Managing Director issued
order dated 23.01.2002 and cancelled the
order dated 15.05.2001 and constituted the
Committee. The order dated 23.01.2002
was
passed
without
affording
any
opportunity of hearing to the petitioners.
During this period, the Typists also
continued on the pay-scale of Rs.800013500. By order dated 16.03.2005, the payscale of the petitioners was reduced and the
orders dated 15.05.2001 to 15.01.2002 as
well as order dated 29.01.2002 were
cancelled. The reduction of pay of the
petitioners has caused financial loss to them,
which is arbitrary and violative of provisions
of the Constitution. Therefore the said order,
by which the reduction in the pay-scale has
been done, is liable to be set aside.
4. In the counter affidavit, the
respondents have taken plea that the order
was passed in pursuance of the directions
contained in the Government Order dated
03.09.2001,
therefore,
there
is
no
illegality. It has also been mentioned in
the counter affidavit that because the
petitioners were given one promotion,
therefore, they were not entitled for two
time scales. All the petitioners were given
promotion
to
the
post
of
Branch
Accountant/ Senior Clerk during the
period from 1976 to 1986. Therefore, in
view of the provisions contained in subpara-2 (Ka) of the Government Order
dated 03.09.2001, no other benefits were
admissible to such employees.
5.

Learned
counsel
for
the
petitioners has submitted that as the
Government Order dated 03.09.2001 is
not retrospective, therefore, it has to be
interpreted as prospective. It has also been
submitted that petitioners were given
scale because they had completed 24
years of service. It has also been
submitted that while reducing the payscale, no opportunity was afforded to the
petitioners. It has also been submitted that
grant of scale to the petitioners was not by
way of mistake but it was in compliance
of the Government Orders.
6. In support of his submission
learned counsel for the petitioners has
relied upon the case Chandi Prasad Uniyal
and others vs. State of Uttarakhand and
others reported in (2012) 8 Supreme
Court Cases 417, in which the Hon'ble
Apex Court in paras-11, 12, 13 and 14 has
held as under.
"11. We may in this respect refer to the
judgment of a two-Judge Bench of this
Court in Col. B.J. Akkara case where this
Court after referring to Shyam Babu Verma
case, Sahib Ram case (supra) and few other
decisions held as follows:
1336
 INDIAN LAW REPORTS ALLAHABAD SERIES
"Such relief, restraining recovery
back of excess payment, is granted by
courts not because of any right in the
employees, but in equity, in exercise of
judicial
discretion,
to
relieve
the
employees, from the hardship that will be
caused if recovery is implemented. A
Government servant, particularly one in
the lower rungs of service would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess payment for a long period, he
would spend it genuinely believing that he
is entitled to it. As any subsequent action
to recover the excess payment will cause
undue hardship to him, relief is granted in
that behalf. But where the employee had
knowledge that the payment received was
in excess of what was due or wrongly
paid, or where the error is detected or
corrected within a short time of wrong
payment, Courts will not grant relief
against recovery. The matter being in the
realm of judicial discretion, courts may
on the facts and circumstances of any
particular case refuse to grant such relief
against recovery."
12. Later, a three-Judge Bench in
Syed Abdul Qadir case supra) after
referring to Shyam Babu Verma, Col. B.J.
Akkara
(retd.)
etc.
restrained
the
department from recovery of excess
amount paid, but held as follows:
"Undoubtedly, the excess amount
that has been paid to the appellants -
teachers
was
not
because
of
any
misrepresentation or fraud on their part
and the appellants also had no knowledge
that the amount that was being paid to
them was more than what they were
entitled to. It would not be out of place to
mention
here
that
the
Finance
Department had, in its counter affidavit,
admitted that it was a bona fide mistake
on their part. The excess payment made
was the result of wrong interpretation of
the rule that was applicable to them, for
which the appellants cannot be held
responsible. Rather, the whole confusion
was because of inaction, negligence and
carelessness of the officials concerned of
the
Government
of
Bihar.
Learned
Counsel appearing on behalf of the
appellants-teachers
submitted
that
majority of the beneficiaries have either
retired or are on the verge of it. Keeping
in
view
the
peculiar
facts
and
circumstances of the case at hand and to
avoid any hardship to the appellantsteachers, we are of the view that no
recovery of the amount that has been paid
in excess to the appellants-teachers
should be made.
(emphasis added)"
We may point out that in Syed Abdul
Qadir case such a direction was given
keeping in view of the peculiar facts and
circumstances of that case since the
beneficiaries had either retired or were on
the verge of retirement and so as to avoid
any hardship to them.
13. We are not convinced that this
Court in various judgments referred to
hereinbefore has laid down any proposition
of law that only if the State or its officials
establish that there was misrepresentation or
fraud on the part of the recipients of the
excess pay, then only the amount paid could
be recovered. On the other hand, most of the
cases referred to hereinbefore turned on the
peculiar facts and circumstances of those
cases either because the recipients had retired
or on the verge of retirement or were
occupying lower posts in the administrative
hierarchy.
14. We are concerned with the
excess payment of public money which is
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Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1337
often described as "tax payers money"
which belongs neither to the officers who
have effected over-payment nor to the
recipients. We fail to see why the concept
of fraud or misrepresentation is being
brought in such situations. Question to be
asked is whether excess money has been
paid or not may be due to a bona fide
mistake.
Possibly,
effecting
excess
payment
of
public
money
by
the
government officers may be due to
various
reasons
like
negligence,
carelessness, collusion, favouritism etc.
because money in such situation does not
belong to the payer or the payee.
Situations may also arise where both the
payer and the payee are at fault, then the
mistake is mutual. Payments are being
effected in many situations without any
authority of law and payments have been
received by the recipients also without
any authority of law. Any amount
paid/received without authority of law can
always
be
recovered
barring
few
exceptions of extreme hardships but not
as a matter of right, in such situations law
implies an obligation on the payee to
repay the money, otherwise it would
amount to unjust enrichment".
7.

Learned
counsel
for
the
petitioners has further relied upon the case
Kusheswar Nath Pandey vs. State of
Bihar & others reported in 2014 (1)
LBESR 561 (SC), in which the Hon'ble
Apex Court in paras-8, 9, 10, 11 and 12
has held as under:-
"8. Mr. Rai, learned Senior Counsel
for the appellant points out that there was
no fraud or misrepresentation on the part
of the appellant. The appellant was given
a time bound promotion by the concerned
Department. If at all the examination was
required to be passed, he has passed it
subsequently in 2007 much before the
cancellation orders were issued in 2009.
Mr. Rai relied upon two judgments of this
Court in case of Bihar State Electricity
Board and Anr. vs. Bijay Bhadur and Anr.
reported in (2000) 10 SCC 99 and
Purushottam Lal Das & Ors. vs. State of
Bihar & Ors. reported in 2007 (1) LBESR
19 (SC): (2006) 11 SCC 492 wherein it
has been held that recovery can be
permitted only in such cases where the
employee
concerned
is
guilty
of
producing forged certificate for the
appointment or got the benefit due to
misrepresentation.
9. The learned counsel for the State
of Bhiar submitted that under the relevant
rules passing of this examination was
necessary. He referred us to the counter
affidavit of the respondent No. 1 wherein
a plea has been taken that under the
particular Government Circular dated
26.12.1985 the amounts in excess are
permitted to be recovered. He relied upon
Clause (j) of the Government Circular
dated 1st April, 1980 to the same effect.
10. Mrs. Jain, learned Additional
Solicitor General appearing for the
Accountant General drew out attention to
another judgment of this Court in Chandi
Prasad Uniyal & Ors. vs. State of
Uttarakhan & Ors. reported in 2012 (3)
LBESR 692 (SC): JT 2012 (7) SC 460:
(2012) 8 SCC 417, and particularly
paragraph 14 thereof which states that
there could be situation where both the
payer and the payee could be at fault and
where mistake is mutual then in that case
such amounts could be recovered.
11. In our view, the facts of the
present case are clearly covered under the
two judgments referred to and relied upon
by Mr. Rai. The appellant was not at all in
any way at fault. It was a time bound
promotion which was given to him and
1338
 INDIAN LAW REPORTS ALLAHABAD SERIES
some
eleven
years
thereafter,
the
Authorities of the Bihar Government
woke up and according to them the time
bound promotion was wrongly given and
then the relevant rules are being relied
upon and that too after appellant had
passed the required examination.
12. In our view, this approach was
totally unjustified. The Learned Single
Jude was right in the order that he has
passed. There was no reason for the
Division Bench to interfere. The appeal is
therefore allowed. The judgment of the
Division Bench is set aside. The writ
petition filed by the appellant will stand
decreed as granted by the Learned Single
Judge. The parties will bear their own
costs".
8.

Learned
counsel
for
the
petitioners has also relied upon the case
Chandra Singh vs. State of Rajasthan
reported in 2003 SCC (L & S) 951, in
which the Hon'ble Apex Court has held as
under:-
".......... It is fairly well settled that
the legality or otherwise of an order
passed by a statutory authority must be
judged on the face thereof as the reasons
contained therein cannot be supplemented
by an affidavit (See Mohinder Singh Gill
vs. Chief Election Commr.). It may be true
that mentioning of a wrong provision or
omission to mention the correct provision
would not invalidate an order so long as
the power exists under any provision of
law, as was submitted by Mr. Rao. But the
said principles cannot be applied in the
instant case as the said provisions operate
in
two
different
fields
requiring
compliance with different prerequisite".
9.

Learned
counsel
for
the
respondents has submitted that as per the
Government Order dated 02.12.2000,
only two time scales were payable if there
has been no promotion. It has also been
submitted that the previous Government
Order was misinterpreted, therefore, the
subsequent Government Order is like a
clarification. It has also been submitted
that because as per rules, two pay-scales
could be granted if there has been no
promotion, but in the present case, the
petitioners have been granted promotion
in view of the award.
10. Learned counsel for the
respondents has further submitted that as
per the existing Government Orders,
which
have
been
adopted
by
the
respondents, the petitioners were entitled
either for one promotion and one time
scale or in case there has been no
promotion then two time scales. He has
further submitted that the time scales
granted
between
15.05.2001
to
15.01.2002 and 29.01.2002 were third
time scale, for which, they were not
entitled.
11. The whole controversy took
birth by the Government Order dated
03.09.2001, by which the previous
Government Orders were amended. It is
not disputed that the respondents have
adopted in-toto the Government Orders
issued
by
Finance
Department
of
Government of U.P. Para-2 (Ka) of the
said Government Order dated 03.09.2001
has been relied upon by the respondents,
which provides that if an employee has
not got two promotions/ next pay-scale till
the completion of 24 years of service on
01.03.2000, whichever is later, the second
promotion/ next pay-scale could be
granted. The respondents, who had
adopted the Government Orders of the
Finance Department, had issued the order
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Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1339
dated 03.10.2001 in accordance with the
said Government Order dated 03.09.2001.
Accordingly, following the Government
Order as well as the order of the
Managing Director, the order dated
16.03.2005 was passed, by which the
orders issued in between 15.05.2001 to
15.01.2002 as well as order dated
29.01.2002 were set aside and it was also
directed that if the employees have drawn
excess salary then it should be adjusted
from their dues or the future salary.
12.

The
main
question
for
consideration is whether the petitioners
have been promoted as claimed by the
respondents or they have been deemed to
have been promoted in compliance of the
award dated 09.05.1978.
13. For deciding this controversy,
the reference to the award of Case No.37
of 1977 dated 09.05.1978 is relevant. The
Industrial Tribunal (II) U.P. has held as
under:-
"The
decision
becomes
even
erroneous in its retrospective effect from
01.04.1971, as if workmen appointed as
junior typists in the junior grade were
automatically treated as appointed in the
higher grade of senior typists.
The
decision
becomes
also
suspiciously
motivated in starting the chain of
promotion
of
a
group
with
the
advancement in grade of only 13 typists
without assigning reasons. There is no
way of reversing what has been done,
administratively the balance can be
restored only by similar promotion 65 of
the
workmen
concerned,
barring
Sl.No.53, who were employed with the
Bank concerned prior to 14.07.1971
which is the date of appointment of the
last promoted typists, to next higher grade
of branch accountants/ senior clerk/
senior typists, and making it effective
retrospectively from 01.04.1971, as in the
case of the promoted typists.
Accordingly,
my
award
is
as
follows:-
Workmen concerned from Sl.No.1 to
52 and from Sl.No.54 to 66, who were
employed with the bank concerned prior
to 14.07.1971 shall be placed in the next
higher grade of Branch Accountants/
Senior
Clerks/
Senior
Typists,
alternatively mentioned in Ext. E-4 as
Shakha Ankik/ Lekha Lipik/ Praver
Tankak with retrospective effect from
01.04.1971. The scale applicable to these
workmen will, of course, be Rs.280-450
ex-post facto as given in column 4 against
Sl.No.8 of the order of the Registrar,
Cooperative Societies, U.P. Dated 25th
March, 1974. The workmen concerned at
Sl. No.53, Smt. Vijya Srivastava, having
joined the Bank on 11.12.1972 will be
entitled to such promotion in her turn
only and is not covered by the above".
14. For the said award, the reference
was to the extent that whether non
revision of pay equivalent to Typists is
justified or not. In that award, the
question or dispute regarding promotion
was not involved but the main dispute
involved was that the pay-scale of Junior
Clerk/ Assistant Branch Accountants was
lower than the pay-scale of the Typists.
Learned Tribunal after considering all
aspects of the matter has restored the
balance administratively and has directed
that the employees, who were employed
with the Bank prior to 14.07.1971 which
is the date of appointment of a last
promoted
Typists,
the
Branch
Accountants/ Senior Clerks shall be
placed in the next higher grade with
retrospective effect from 01.04.1971.
1340
 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Admittedly, the said award was
challenged before Hon'ble the Supreme
Court by way of Civil Appeal No.1956 of
1981, by which the appeal has been
dismissed.
16. Perusal of the aforesaid order of
the Industrial Tribunal reveals that it was
not a promotion given to the petitioners
but their pay-scales were equated with a
last promoted Typists. There is vide
difference between a promotion and a
promotional pay-scale. In the promotion,
the scale of pay is enhanced as well as the
promotee employee is also burdened with
higher duties and responsibilities. But in
the promotional pay-scale, the scale is
revised but the duties remain the same.
17. In view of the above, I do not
find any substance in the submission of
learned counsel for the respondents that
the petitioners shall be deemed to have
been promoted inconsonence of the award
dated 09.05.1978. By the award dated
09.05.1978, the petitioners have not been
promoted but they have been granted
promotional pay-scale equivalent to the
last promoted Typist as on 14.07.1971.
Therefore, it cannot be said that the said
revision of pay-scale is covered by the
term "promotion".
18. From the aforesaid discussion, I
have come to the conclusion that the scale
granted to the petitioners in compliance of
the award dated 09.05.1978 does not
come within the definition of promotion.
Therefore, the scales granted by the order
dated 15.05.2001 to 15.01.2002 and
29.01.2002 cannot be said to be the third
time-scale.
19. It is also not disputed that while
passing the order dated 16.03.2005, any
opportunity of hearing was not granted to
the petitioners. In Bhagwan Shukla vs.
Union of India and others reported in
1994 LAB I. C. 2493 the Hon'ble Apex
Court in paras-2 and 3 has held as under:-
"2. The controversy in this appeal
lies in a very narrow compass. The
appellant who had joined the Railways as
a Trains Clerk w.e.f. 18.12.1955 was
promoted as Guard, Grade-C w.e.f.
18.12.1970 by an order dated 27.10.1970.
The basic pay of the appellant was fixed
at Rs.190/- p.m. w.e.f. 18.12.1970 in a
running pay-scale. By an order dated
25th July, 1991, the pay-scale of the
appellant, was sought to be refixed and
during the refixation his basic pay was
reduced to Rs.181/- p.m. From Rs.190/-
p.m. w.e.f. 18.12.1970. The appellant
questioned the order reducing his basic
pay
with
retrospective
effect
from
18.12.1970
before
the
Central
Administrative Tribunal, Patna Bench.
The
justification
furnished
by
the
respondents for reducing the basic pay
was that the same had been 'wrongly'
fixed initially and that the position had
continued due to "administrative lapses"
for about twenty years, when it was
decided to rectify the mistake. The
petition filed by the appellant was
dismissed by the Tribunal on 17.09.1993.
3. We have heard learned counsel for
the parties. That the petitioner's basic pay
had been fixed since 1970 at Rs.190/- p.m.
is not disputed. There is also no dispute
that the basic pay of the appellant was
reduced to Rs.181/- p.m. from Rs.190/-
p.m.
in
1991
retrospectively
w.e.f.
18.12.1970. The appellant has obviously
been visited with civil consequences but
he had been granted no opportunity to
show cause against the reduction of his
basic pay. He was not even put on notice
3 All].
Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr.
1341
before his pay was reduced by the
department and the order came to be
made behind his back without following
any procedure known to law. There, has,
thus, been a flagrant violation of the
principles of natural justice and the
appellant has been made to suffer huge
financial loss without being heard. Fair
play inaction warrants that no such order
which has the effect of an employee
suffering civil consequences should be
passed without putting the concerned
notice and giving him a hearing in the
matter. Since, that was not done, the
order (memorandum) dated 25.07.1991,
which was impugned before the Tribunal
could not certainly be sustained and the
Central Administrative Tribunal fell in
error in dismissing the petition of the
appellant. The order of the Tribunal
deserves to be set aside. We, accordingly,
accept this, appeal and set aside the order
of the Central administrative Tribunal
dated 17.09.1993 as well as the order
(memorandum) impugned before the
Tribunal dated 25.07.1991 reducing the
basic pay of the appellant from Rs.190/-
to Rs.181/- p.m. w.e.f. 18.12.1970".
20. In the aforesaid matter, the
Hon'ble Apex Court has set aside the
reduction of pay because there was
flagrant violation of principles of natural
justice and no opportunity of hearing was
afforded. In the present case also
admittedly no opportunity of hearing has
been given to the petitioners while
withdrawing
the
previous
orders.
Therefore, the impugned order dated
16.03.2005 suffers from illegality.
21. As pointed out earlier, the whole
of the controversy arises due to the
Government Order dated 03.09.2001 by
the Department of Finance, Government
of U.P. The perusal of the aforesaid
Government Order reveals that it was an
amendment
regarding
the
previous
Government
Orders.
In
the
said
Government Order, it has nowhere been
mentioned that if the pay scale of any of
the employee has been sanctioned or
revised in accordance with the previous
Government Orders, then the same shall
stand cancelled. There is also no clause in
the aforesaid Government Order dated
03.09.2001 that this amendment shall
apply retrospectively. If any Government
Order is silent about its operation, then it
has to be treated as prospective and it
cannot
be
applied
retrospectively.
Admittedly, the petitioners were granted
time scales prior to 03.09.2001, therefore,
the
said
Government
Order
dated
30.09.2001 is not applicable to the
employees who have been granted scales
prior to it.
22. Learned counsel for the
respondents has tried to convince this
Court that petitioners were granted higher
pay
scales
under
mistake
and
misinterpretation of the Government
Order, therefore, they are not entitled for
the higher pay scales. The pay scales of
the petitioners have been reduced by the
order dated 16.03.2005 and in the order
dated 16.03.2005, there is no mention to
the effect that petitioners have been
granted higher pay scales due to mistake
or due to misinterpretation or wrong
interpretation of the previous Government
Orders.
23. In the present case, it has been
argued that the higher pay scales were
granted due to mistake but the same does
not find in the order dated 16.03.2005. In
view of the law laid down by the Hon'ble
Apex Court in the case Chandra Singh vs.
1342
 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Rajsthan (supra) the said mistake
cannot be supplemented by an affidavit.
24.
In Chandi Prasad Uniyal and
others vs. State of Uttarakhand and others
(supra), the Hon'ble Apex Court considering
the fact that as now the appellants have either
retired or are on the verge of it, therefore, the
recovery of amount what has been paid an
excess is not justified.
25. In the present case also the
petitioners have retired and even after
retirement their retiral dues with regard to
the pay scales granted from 01.03.2000,
have been withheld.
26. For the aforesaid reasons, I am of
the view that the promotional pay scale
granted to the petitioners cannot be termed as
promotion. The Government Order dated
03.09.2001 is the amendment and not a
clarification and it is to be implemented
prospectively. There has been no mistake or
misinterpretation of the Government Orders
while granting time scale to the petitioners.
As no opportunity was granted to the
petitioners before passing of the order dated
16.03.2005, therefore, it is liable to be set
aside.
27. I am also of the view that the
order dated 23.01.2002 passed by the
Managing Director of the respondentbank, by which the sanction orders issued
in between 15.05.2001 to 15.01.2002
have been set aside, cannot be sustained.
28. For the facts and circumstances
mentioned above, all the aforementioned
writ petitions are allowed with the
following directions:-
(i) The orders dated 23.01.2002 and
16.03.2005, passed by the Managing
Director,
U.P.
Cooperative
Village
Development Bank Ltd., are set aside.
(ii) The respondents are directed to
pay the arrears of salary of the petitioners
along with annual increments and arrears
thereof
treating
the
orders
dated
23.01.2002 and 16.03.2005 as nonest,
within six months from today.
(iii)
The
respondents
are
also
directed to release the amount of gratuity
and other retiral dues, within six months
from today, failing which, they shall be
liable for interest at the rate of 6% per
annum from today to the date of actual
payment, (if actual payment is made
beyond six months from today).
29. Accordingly, the orders dated
30.07.2010
and
06.04.2010
and
09.11.2009 regarding the petitioner Raj
Kumar Mehrotra of Writ Petition No.597
(S/S) of 2011, are also quashed.
30. It is made clear that the above
directions shall be applicable in those
matter of the petitioners who have been
granted higher pay-scales prior to the date
of issuance of Government Order dated
03.09.2001.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2014
BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.
U/S 482/378/407 No. 4153 of 2013
 along with
W.P. No. 5058 of 2013
Arjun Singh @ Natthu Singh Yadav
...Applicant
Versus
The State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Sri
Jai
Pal
Singh