RADHA TEJPAL BAJAJ Vs. PRESIDENT - INDUSTRIAL COURT

JUDGEMENT

(1.) Heard the learned advocate, Mr.A.S.Supehia, and learned advocate, Ms.Hina Desai, appearing on behalf of petitioners.

(2.) Rule. Learned AGP, Mr.Dabhi, waives the service of rule on behalf of respondent No.1 and learned advocate Mr.Pardiwala, waives the service of rule on behalf of respondent No.2.

(3.) In this group of petitions, the Administrative Head, In-charge President of Industrial Court has committed an error which found apparently on the face of record ignoring the decision of this Court and accepting the administrative instruction of the State Government (Local Fund Office). The higher grade benefits given to each petitioner by the respondents which subsequently found to be erroneous and that mistake has been rectified and finally, it has been concluded by the President of Industrial Court by an order dated 21.6.2002 and 26.6.2002, a decision was taken relying upon Rule 57A(i)(ii) of the BCSR to waive the recovery of excess payment made to the petitioners. The President of Industrial Court has passed an order waiving the recovery of the excess amount which has been paid to the petitioner vide amendment dated 21.6.2002 and 26.6.2002. Therefore, it was decided by the President of Industrial Court that due to the erroneous fixation, whatever amount excess has been paid to the petitioners, should not have to be recovered by the department from each petitioner. However, because the Local Audit Fund Office has raised objection at Vadodara and Ahmedabad for fixation of their pay, the said office objected against such waiver of the recovery vide No.5 as mentioned in order on the ground that recovery can be waived under BCSR 57A(i)(ii) or GCSR 28(1)(2) only if the promotion was wrongfully given to the employee concerned but, those rules have not application where the 9 years' higher pay scale was wrongfully granted to an employee. The reason behind the objection of the Local Audit Fund Office, according to President of the Industrial Court, is that while in case of wrongful promotion, employee concerned had actually worked on the promotional post, whereas in case of 9 years higher pay scale the employee concerned hnd not worked on the promotional post but, by virtue of the GR of Finance Department dated 16.8.1994, merely because they had worked for 9 years in a cadre for getting promotion, they were granted the higher pay scale and since the higher pay scale was granted wrongfully, the recovery of excess payment has to be made. In light of this background, the President of Industrial Court issued show cause notice to the petitioners as to why the amendment dated 21.6.2002 and 26.6.2002 vide No.4 waiving the recovery of excess payment should not be cancelled. Meaning thereby that petitioners were called upon the show cause as to why the recovery should not be effected in terms of original orders dated 16.10.2001, 7.5.2002 and 16.5.2002. Ultimately, after the representation of the petitioners, the Incharge President has come to the conclusion by an order dated 13.10.2006 issuing the recovery order from the salary of the petitioners. But, before that, he made certain observations which are relevant, therefore, same are quoted as under :