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. Rule. Rule made returnable forthwith. With the consent of the parties, the Writ Petition is heard finally at the stage of admission.
By this Writ Petition filed under Article 226 of the Constitution of India, the petitioner has put-forth the following main prayers :
“B) By issuing a writ of certiorari or any other appropriate writ, order or direction in the like nature the as per Order on page 17 Exh'C' action of Respondent No. 2 withdrawing the higher pay grade of Rs. 4200/- from his retiral benefits (after his retirement) may kindly be quashed.
BB) To quash and set aside the order communication on page 28 dated 12/01/2024 passed by Res. No. 2 and his subordinates to the extent of Recovery of Rs. 14,73,760 by issuing appropriate writ, order, or directions in the like nature.”
It is the case of the petitioner that he was appointed on 25.05.1987 on the establishment of respondent No. 2/Corporation as an Electric Pump Operator in the pay-scale of Rs.250-385. After completing the professional course on 04.11.1993, he was held eligible to get a higher pay grade/promotion. On 16.01.2017, he was granted pay grade of Rs. 4200/- i.e. Rs. 9300-34800 w.e.f. 28.05.1999. Accordingly, the pay-scale of the petitioner was revised.
The petitioner further contends that he retired on 31.01.2024 on attaining the age of superannuation. However, respondent No. 2, while preparing the proposal for grant of pensionary benefits, revised the pay scale of the petitioner as a result of which, an amount of Rs.14,73,760/- has been deducted from his retiral benefits. The petitioner, therefore, has approached this Court.
Learned counsel for the petitioner would submit that the action of respondent No. 2/Corporation in deducting the amount from the retiral benefits of the petitioner unilaterally is violative of the principles of natural justice. He further submits that the petitioner was never put to notice about re-fixation of his pay scale, nor had he given any undertaking during the course of his employment that, in case the pay scale of the petitioner is revised, the petitioner would repay the excess amount received by him. He, therefore, submits that the impugned action of respondent No. 2/Corporation in deducting an amount of Rs.14,73,760/- from the retiral benefits of the petitioner deserves to be quashed and set-aside by directing respondent No. 2 to refund the said amount alongwith interest. In support of his contention, he relied on Rule 129 (A) and Rule 129 (B) of ‘the Maharashtra Civil Services (Pension) Rules, 1982’ (for short, ‘the Pension Rules, 1982’).
Per contra, learned counsel appearing for respondent/ Corporation vehemently opposed the petition and prayed for its dismissal.
We have heard learned counsel for the petitioner, learned Addl.GP for respondent/State and learned counsel representing respondent No. 2/Corporation. It is not in dispute that the petitioner was granted incremental benefits after he acquired the requisite qualification. It is not the case that when the petitioner’s pay scale was revised on 16.01.2017, the petitioner had manipulated the record or that he was involved in the process of approving the increments granted to him. In our considered view, in absence of any allegation that the petitioner played fraud or had manipulated the record to obtain the increments, the case of the petitioner would fall within the authoritative parameters laid down by the Hon’ble Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) & Ors. reported in 2015(4) SCC 334 which reads thus :
“ 18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i)Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v)In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
As far as the aspect of grant of interest on deducted amount is concerned, it would be apt to reproduce Rule 129 (A) and Rule 129 (B) of the Pension Rules, 1982 which reads thus :
“129-A. Interest on delayed payment of gratuity [(1) Where the payment of retirement gratuity or death gratuity, as the case may be has been delayed beyond the period of three months from the date of retirement or death, and it is clearly established that the delay in payment was attributable to administrative lapse, an interest at the rate applicable to General Provident Fund deposits shall be paid on the amount of gratuity, in respect of the period beyond three months:
Provided that, no interest shall be payable if the delay in payment of such gratuity was attributable to the failure on the part of the Government servant, to comply with the procedure laid down in this Chapter:
Provided further that no interest shall be payable in the case where a provisional gratuity is paid.
(2)Every case of delayed payment of retirement gratuity or death gratuity, as the case may be, shall suo motu, be considered by the concerned Administrative Department, and where the Department is satisfied that the delay in payment of such gratuity was caused on account of administrative lapse, that Department shall sanction payment of interest after obtaining the admissibility report, in this behalf, from the Accountant General (Accounts and Entitlement), Maharashtra, Mumbai or Nagpur, as the case may be. The approval of the Finance Department for payment of such interest shall not be necessary.
(3)In all cases, where interest has been paid on retirement gratuity or death gratuity, as the case may be, due to administrative lapse, the concerned, Administrative Department shall fix the responsibility and take disciplinary action against the Government servant or servants concerned, including the concerned officer, who are found responsible for the delay In the payment of such gratuity and recover the amount of interest required to be paid from the Government servant or servants concerned including the concerned officer who are found responsible for the delay in the payment of such gratuity.]
(4)If as a result of Government's decision taken subsequent to the retirement of a Government servant, the amount of gratuity already paid on his retirement is enhanced on account of-
(a)grant of pay higher than the pay on which gratuity, already paid was determined, or
(b)liberalisation in the provisions of these rules from a date prior to the date of retirement of the Government servant concerned, no interest on the arrears of gratuity shall be paid.
129-B. Interest on delayed payment of pension.- [(1) Where the payment of pension or family pension authorised after six months from the date when its payment became due, an interest at the rate applicable to General Provident Fund deposits shall be paid on the amount of pension, in respect of the period beyond six months:
Provided that, no interest shall be payable if the delay in payment of pension was attributable to the fallure on the part of the Government servant to comply with the procedure laid down in this Chapter:
Provided further that no interest shall be payable the period for which a provisional pension is paid. In case of Government servant to whom provisional pension is sanctioned an interest as provided shall be paid after a period of six months from the cessation of provisional pension till the final pension is authorised.
(2)Every case of delayed pension or family pension, as the case may be, shall suo motu, be considered by the concerned Administrative Department: and where the Department is satisfied that the delay in payment of such pension was caused on account of administrative lapse, that Department shall sanction payment of interest after obtaining the admissibility report in this behalf from the Accountant General (Accounts and Entitlement), Maharashtra, Mumbai or Nagpur, as the case may be. The approval of the Finance Department for payment of such Interest shall not be necessary.
(3)In all cases, where interest has been authorised on pension or family pension, as the case may be, due to administrative lapse, the concerned Administrative Department shall fix the responsibility and take disciplinary action against the Government servant or servants concerned, including the concerned officer, who are found responsible for the delay in the payment of such pension and recover the amount of interest required to be paid from the Government Servant or servants concerned including the concerned officer who are found responsible for the delay in the payment of such pension.]
(4)If as a result of Government's decision taken subsequent to the retirement of a Government servant, the amount of pension already paid on his retirement is enhanced on account of,-
(a)grant of pay higher than the pay on which pension, already paid was determined; or
(b)liberalisation in the provisions of these rules from a date prior to the date of retirement of the Government servant concerned, no interest on the arrears of pension shall be paid.”
Taking into consideration the provisions of Rule 129 (A) and Rule 129 (B) of the Pension Rules, 1982, since respondent No. 2/ Corporation has deducted the amount from the gratuity as well as the pension of the petitioner, we find that it would be expedient in the interest of justice, to grant interest @ 6% per annum on the amount so deducted till its realization.
In view thereof, we pass the following order :
ORDER
The Writ Petition is allowed in terms of prayer clauses ‘B’ and ‘BB’ as above.
ii) Respondent No. 2 is directed to refund the amount recovered from the retiral benefits of the petitioner alongwith interest @ 6% per annum from the date of deduction till its realization.
iii) Respondent No.2 is directed to refund the amount of the petitioner within three (3) months from the date of receipt of copy of this order.
iv) Rule is made absolute in the above terms.