DABHOI NAGARPALIKA Vs. S J KHEDIA

JUDGEMENT

(1.) Heard learned Counsel. The respondent No. 1 was in service of Dabhoi Nagarpalika. While he was working as Chief Officer of Dabhoi Nagarpalika he retired from the service on 30-9-1985 on attaining the age of superannuation. He served with the Municipality for about 26 years 6 months and 29 days. After the retirement as aforesaid the extension was granted to him and thereafter when he finally retired with the extension period being over he was paid retirement benefits like gratuity, pension etc. An amount of Rs. 37,167.00 was paid to him as gratuity by 30-4-1986 in two instalments. It is the say of the respondent No. 1 that keeping in the spirit with the award applicable to the employees of the Municipality including the Chief Officer retiral benefits including gratuity were being paid to all retired employees and as far as back in 1965, the question of payment of gratuity had been decided by the arbitration. In these arbitration proceedings the Municipality itself had entered into the settlement and it was decided that all the employees shall be paid gratuity as mentioned in the aforesaid terms with effect from 1-1-1965. The respondent No. 1 has thus come with the case that even prior to coming into force of the Gratuity Act, it was the practice of the Municipality to pay gratuity to all the retired employees including the Chief Officer. By way of an illustration, the respondent No. 1 has referred to the case of Shri Natwarlal C. Shah who was also Chief Officer and was paid amount of gratuity as per the award existing at that time. The respondent No. 1 has also come with the case that Dabhoi Municipality had paid due amount of gratuity to him with full understanding and awareness with regard to the matters governing the gratuity and when the amount of gratuity was paid to him in April, 1986 it was very well known to the Municipality that he had retired while holding the post of Chief Officer.

(2.) In the year 1990 the incumbent held the post of Chief Officer of Dabhoi Municipality. It passed the order against respondent No. 1 based on the audit objection that he should refund the amount of Rs. 37,177.00 which had been paid to him against the gratuity. It is the case of the respondent No. 1 that this order had been passed in the year 1990 by the Chief Officer of Dabhoi Municipality without any prior notice to him and the same was void ab-initio. The respondent No. 1 filed reply dated 21-4-1994 that the amount could not be recovered from him and the order dated 27-4-1994 passed to this effect by the Dabhoi Municipality was wrong. The amount of gratuity which had been duly paid to the respondent No. 1 was sought to be recovered from him on the basis of the audit objection that he was neither governed by the provisions of the Industrial Disputes Act nor by the provisions of the Payment of Gratuity Act and since the payment had been illegally made a sum of Rs. 500.00 may be deducted from the amount of pension payable to him every month and accordingly a sum of Rs. 500.00 p.m. was deducted from his pension and respondent No. 1 stated that sum of Rs. 5,271.00 had already been deducted from his pension and at this juncture he was compelled to file the petition before this Court through Special Civil Application No. 2195 of 1994. This Special Civil Application No. 2195 of 1994 was decided by this Court on 12-7-1995 with a direction to the Competent Authority to decide his representation as expeditiously as possible and with a further direction that until such representation is decided there will be no further deduction from the pensionary benefits. The Controlling Authority under the Payment of Gratuity Act decided the representation after considering the case of both the parties and it came to the conclusion that in terms of the award the Municipal servants were covered and the Municipal servant includes the Chief Officer and accordingly the gratuity paid to respondent No. 1 as Chief Officer in terms of the award was proper. The Competent Authority under the Payment of Gratuity Act also found that other Municipalities, e.g., Nadiad Municipality had also paid the amount of gratuity on the basis of the award and the certificate had also been given by the Nadiad Municipality to the effect that the Chief Officer of the Municipality of Nadiad was paid gratuity under the award passed under the Industrial Disputes Act and certificate dated 21-2-1995 was also produced before the Competent Authority. It is, therefore, argued that the payment of gratuity made to the respondent No. 1 was in order. It has also been submitted on behalf of respondent No. 1 that he was entitled to the payment of gratuity even under the Bombay Civil Service Rules of Dabhoi Municipality framed under Sec. 271 of the Gujarat Municipalities Act. Bombay Civil Service Rules had been adopted and it has been clearly provided in clause 10 of Chapter 12 that in regard to the point not specifically provided for in the Municipal Service Rules, the Bombay Civil Service Rules shall be followed and the Municipality had adopted the Bombay Civil Service Rules. On this basis, it has been submitted that the order dated 27-4-1994 was an illegal order and no recovery could be effected from the pension in respect of the amount which had been paid as gratuity.

(3.) After this Court's order dated 12-7-1995 passed in the Special Civil Application No. 2195 of 1994 which had been earlier filed by respondent No. 1, the Controlling Authority had passed the order on 17-10-1995 that there was no question of effecting recovery from the pension and that the amount of gratuity which had been paid to respondent No. 1 was not open to be recovered back by the Dabhoi Municipality and further that deduction which had already been made and recovered from the pension of respondent No. 1 was unlawful.