GRACE GEORGE PAMPOORICKAL vs MUNICIPAL CORP. OF GREATER MUMBAI AND 4 ORS.

 Bharati H.Dangre, J

1 Rule. Rule made returnable forthwith.

2 Heard by consent.

3 The present writ petition challenges the act of recovery from the petitioner to the tune of Rs.1,40,030/ on account of the reduction in the pay

scale with the retrospective effect. The petitioner who was appointed as an Assistant Trained Teacher in the year 1970 attained the age of

superannuation on 28th February 2010. At the relevant time, the last pay drawn by the petitioner was reflected as Rs.9200/Â. The petitioner did

not receive any pension or any retiral benefits from the Municipal Corporation. In August 2011, when the pension book was handed over to the

petitioner, the petitioner noted that the last pay drawn has been reduced from 9200/Â to Rs.7410/ÂÂ and the recovery of amount of Rs.1,40,030/Â‐

was ordered from the retirement benefits.Â

4 The petitioner has approached this Court being aggrieved by the said action. It is the specific case of the petitioner that the reduction in his pay

scale with the retrospective effect and without affording an opportunity to the petitioner is bad in law and unsustainable. The petitioner would place

reliance on the judgment of the Hon'ble Apex Court in case of State of Punjab and Haryana Vs Rafiq Masih (White Washer) & ors( 2015) 4 SCC 334

 and would clamp the said recovery on the ground that the amount has already been paid to the petitioner and he had drawn the salary based on the

said amount. The respondent Corporation has placed an affidavit in reply on record and has raised the grievance that the petitioner stands super

annuated on 1st March 2010. However, it was noted that her amount of last pay drawn was wrongly fixed on the basis of she being considered as a

trained graduate teacher. The respondent therefore, attempts to justify the said reÂfixation of pay and would submit that taking into account the

qualifications required for the trained teacher, the amount has been reduced.

On consideration of the rival submission of the parties, it is apparent that the respondent has sought to revise the last pay drawn by the petitioner with

a retrospective effect which is almost after a period of 17 to 18 months after her retirement. This issue and the controversy involved in the current

writ petition is already put to rest by an order passed by the Division Bench of this Court in Writ Petition No.1592 of 2014.

The Division Bench to which one of us (Justice B.R. Gavai,) is a party dealing with a similar controversy had specifically placed reliance on the

judgment of the Apex Court in the case of Sayed Abdul Qadir & ors Vs. State of Bihar & ors( 2009) 3 SCC 475   and in case of State of Punjab

and Haryana Vs Rafiq Masih (White Washer)Â ors Â( 2015) 4 SCC 334 Â Â and has categorically held that such a recovery at the fag end of the

career of an employee or after his superannuation is not at all permissible in law. With the aforesaid observations, the writ petition was allowed and

the recovery is quashed and set aside. Â

The present controversy is squarely covered by the said judgment dated 14th December 2017. In light of the judgment of the Hon'ble Apex Court

and this Court, the recovery against the petitioner is unsustainable and is liable to be quashed and set aside.   The impugned action of the

respondent reducing the basic pay of the petitioner from Rs.9,200/Â​ to Rs.7,410/Â​ is quashed and set aside.Â

5 The respondents are directed to fix the basic pay of the petitioner at Rs.9200/Â and taking into consideration the said amount as a last pay drawn,

would calculate the retiral benefits of the petitioner and would remit the said benefits to the petitioner

within a period of three months from today.

Writ Petition is allowed.

Rule is made absolute accordingly.