Case Note & Summary
The petitioner, Smt. Gaurabai wd/o Maroti Nagpure, is the widow of a retired Police Constable, Maroti Nagpure, who died on 6.1.2001. The petitioner challenged a communication dated 1.9.2003 issued by the Commissioner of Police, Nagpur, and a letter dated 6.11.2003 issued by the Office of the Accountant General, Nagpur, by which the respondents initiated proceedings to recover salary amount received by the deceased from the date of termination order dated 6.4.1988 till his date of retirement on 30.6.1996. The termination order dated 6.4.1988 was later maintained by the Maharashtra Administrative Tribunal (MAT) by order dated 19.6.2001. Prior to his death, the deceased had obtained a stay of termination in Regular Civil Suit No.794/1988 and continued in service with respondent no.2 till his retirement on 30.6.1996. After his death and in view of the MAT order, the respondents calculated a provisional pension without giving hearing or opportunity to the petitioner, showing his retirement as on 7.4.1988 despite the actual work done by him as per the civil court order. The court held that since the deceased actually worked for 29 years, 4 months and 19 days, the retirement benefits ought to be granted on the basis of such qualifying service. There was no question of recovery of salary paid for actual work done merely because the MAT later upheld the termination order. The court allowed the petition, quashed the impugned communications, and directed the respondents to calculate pensionary benefits based on the actual qualifying service rendered by the deceased.
Headnote
A) Service Law - Recovery of Salary - Actual Work Done - The respondents cannot recover salary paid to the deceased employee for the period he actually worked pursuant to a civil court stay order, even though the termination order was later upheld by the Maharashtra Administrative Tribunal, as the employee rendered actual service and received salary for work done. (Paras 5-6) B) Service Law - Pensionary Benefits - Qualifying Service - The deceased employee having worked for 29 years, 4 months and 19 days, the pensionary benefits ought to be calculated on the basis of such actual qualifying service, and the respondents cannot deny pension by treating the retirement date as the date of termination. (Paras 5-6) C) Service Law - Natural Justice - Opportunity of Hearing - The respondents calculated provisional pension without giving hearing or opportunity to the petitioner, which is violative of principles of natural justice. (Para 4)
Issue of Consideration
Whether the respondents can recover salary paid to the deceased employee for the period he actually worked pursuant to a stay order, after the termination order was subsequently upheld by the Maharashtra Administrative Tribunal, and whether the petitioner is entitled to pensionary benefits based on the actual qualifying service rendered.
Final Decision
The court allowed the writ petition, quashed the impugned communications dated 1.9.2003 and 6.11.2003, and directed the respondents to calculate pensionary benefits based on the actual qualifying service of 29 years, 4 months and 19 days rendered by the deceased, and to pay the same to the petitioner within a reasonable time.
Law Points
- Recovery of salary paid for actual work done is impermissible
- Pensionary benefits based on qualifying service cannot be denied due to subsequent termination order
- Principle of quantum meruit applies to salary for work actually performed
