Case Note & Summary
The High Court of Judicature at Bombay, Aurangabad Bench, considered a writ petition under Article 226 of the Constitution of India filed by a retired Hostel Superintendent who sought to quash an order dated 09.08.2023 for recovery of Rs.14,25,006 from his pensionary benefits and to quash revised pay fixation orders dated 11.04.2023. The petitioner had worked in an aided Tribal Primary Ashram School, Kherda, from 01.08.1994 to 30.09.2022, initially appointed as Hostel Superintendent in Group 'C'. His pay scale was fixed as a trained Hostel Superintendent by an order dated 28.10.2016, following a court order in an earlier writ petition. He also received one step up pay scale under a Government Resolution dated 06.08.2002 for employees in tribal/remote/naxalite areas, and his pay was revised as per 5th and 6th Pay Commission recommendations on 21.12.2016. No undertaking was obtained from him at any stage of pay fixation. Upon retirement on 30.09.2022, respondent no.7 forwarded his pension proposal, but respondent nos.5 and 6 returned it on 25.08.2022 seeking verification of the revised pay. Respondent no.7 issued a new revised pay fixation order on 11.04.2023, and thereafter respondent no.6 granted pensionary benefits but simultaneously recovered Rs.14,25,006 as alleged overpayment, with Rs.8,06,000 deducted from leave encashment on 18.01.2024 and Rs.6,19,006 from gratuity on 29.01.2024, without giving any opportunity to the petitioner. The petitioner challenged this recovery and the revised pay fixation as arbitrary and in violation of natural justice. Before the High Court, the petitioner argued that the recovery from a retired employee without any undertaking and without any fraud or misrepresentation was impermissible, relying on State of Punjab v. Rafiq Masih (2015) 4 SCC 334 and Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475, as well as several orders of the Bombay High Court. Respondent no.4, in its affidavit, stated that the revised pay fixation was issued by respondent no.7 and the recovery was initiated by respondent no.6, effectively disclaiming responsibility. The Court, after hearing the parties, held that the recovery action was unsustainable for more than one reason, noting the admitted fact that no undertaking had been obtained from the petitioner and that the employee was not at fault. The provided judgment text ends before the final operative order, but the reasoning clearly indicates that the writ petition was to be allowed, the recovery quashed, and the amount refunded with interest.
Headnote
A) Service Law - Recovery of Excess Payment - Government Pensioner - Constitution of India, Article 226 - The petitioner, a retired Hostel Superintendent, challenged recovery of Rs.14,25,006 from leave encashment and gratuity after retirement on the ground that no undertaking was taken at pay fixation and he was not at fault - Court held that recovery from pensionary benefits of a retired employee without fault is impermissible, following State of Punjab v. Rafiq Masih (2015) 4 SCC 334 and Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 - Held that the action of respondent no.6 was unsustainable (Paras 11-14). B) Administrative Law - Principles of Natural Justice - Recovery Without Notice - Constitution of India, Article 226 - The impugned recovery of Rs.14,25,006 was effected from pensionary benefits without giving any opportunity to the petitioner - Court observed that the action was arbitrary, unreasonable, and against principles of natural justice - Held that recovery without prior notice violated natural justice (Paras 11-12). C) Service Law - Pay Fixation - Revised Pay Scale After Retirement - Constitution of India, Article 226 - The petitioner challenged the revised pay fixation order dated 11.04.2023 issued by respondent no.7 after he had retired; this revision led to recovery of excess pay - Court treated the re-fixation as part of the impugned action and found it unsustainable due to absence of employer fault and no undertaking - Held that re-fixation after retirement without employee fault was not justified (Paras 3-8, 14).
Issue of Consideration
Whether recovery of Rs.14,25,006 from the pensionary benefits of a retired employee, in the absence of any undertaking and without any fraud or misrepresentation by the employee, is legally sustainable; whether the revised pay fixation order dated 11.04.2023 is valid.
Final Decision
Rule made returnable forthwith; after hearing, Court held impugned recovery action of respondent no.6 unsustainable because no undertaking was obtained from petitioner and employee not at fault; final operative relief not fully extracted in provided text but reasoning indicates writ petition to be allowed.
Law Points
- Recovery of excess payment from pensionary benefits of retired employee is impermissible when employee not at fault and no undertaking obtained
- employer mistake does not justify recovery
- principles of natural justice require notice before recovery
- State of Punjab v. Rafiq Masih and Syed Abdul Qadir followed
