advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, April 20, 2014

service matter - Recovery orders and reduce of pension - after retirement and after the lapse of few years - order to recover the excess payment and also order to reduce the pension as the salary was re fixed - challanged High court dismissed - Apex court held that we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant. and allowed the civil appeal =SUSHIL KUMAR SINGHAL …APPELLANT VERSUS PRAMUKH SACHIV IRRIGATION DEPARTMENT & OTHERS ....RESPONDENTS=2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41431

   service matter - Recovery orders and reduce of pension - after retirement and after the lapse of   few years - order to recover the excess payment and also order to reduce the pension as the salary was re fixed - challanged High court dismissed - Apex court held that  we  quash  the  impugned  judgment delivered by the High Court  and  direct  the  respondents  not  to recover any amount of salary which had been paid to  the  appellant in pursuance of some mistake committed in  pay  fixation  in  1986. The amount of pension shall also not be reduced and  the  appellant shall be paid  pension  as  fixed  earlier  at  the  time  of   his   retirement.  It is pertinent to note that the Government had framed  such  a  policy  under  its  G.O.  dated  16th  January,  2007  and  therefore, the  respondent  authorities  could  not  have  taken  a different view in the matter of re-fixing pension of the appellant. and allowed the civil appeal =

 this appeal has been filed by  the  appellant-employee,  from
        whom excess amount of salary, which had been  paid  by  mistake  is
        sought to be recovered and whose  pension  is  also  sought  to  be
        reduced.      =
The appellant retired  on  31st  December,  2003  as  an  Assistant
        Engineer and on the basis of his last salary drawn, his pension had
        been  fixed.  At  the  time  of  his  retirement,  his  salary  was
        Rs.11,625/- and on the basis of the said salary,  his  pension  had
        been fixed.
     3. After a few years of his retirement, it was found by the respondent-
        employer that salary of the appellant had  been  wrongly  fixed  in
        1986 and therefore, his salary had been re-fixed by an order  dated
        23.03.2005.  On  the   basis  of  the  re-fixed  salary  a  sum  of
        Rs.99,522/- was sought to be  recovered  and  for  that  purpose  a
        notice  had  been  issued  to  the  appellant  on  23.04.2005.   In
        pursuance of the incorrect fixation of his  salary  in  1986,   his
        salary at the time of his retirement had  also  been  reduced  from
        Rs.11625/- to Rs.10,975/- and therefore, his pension had also  been
        reduced. =
Challenged
 The High Court was pleased  to  reject  the
        petition as it had come to the  conclusion  that  the  pay  of  the
        appellant had been wrongly fixed and therefore, the impugned action
        of the respondent-employer with regard to recovery  of  the  excess
        salary paid and reduction in the pension was justified.=
the  High  Court  did  not
        consider  the  G.O.  dated   16.1.2007   bearing   No.S-3-35/10-07-
        101(6)/2005 which reads as under:


                 “[1].  Pension  Fixation  Authority  shall   inquire   into
                 emoluments of only last 10 months prior to  retirement  and
                 for that examine  the  records  of  only  two  years  prior
                 thereto i.e.  only  the  records  of  34  months  would  be
                 examined for the purpose of grant of pension, as  has  been
                 provided  in   the   aforesaid   Government   order   dated
                 13.12.1977.


                 [2].  Pension Allowing Authority shall not be  entitled  to
                 correct the mistake in determining the pay  during  service
                 tenure beyond the period  prescribed  in  para  (1)  above.
                 Mistakes  in  pay  determination  of  an  employee  can  be
                 effectively  removed  through  the   process   of   general
                 inquiry/audit only when the employee is still in service.”

Conclusion
we  quash  the  impugned  judgment
        delivered by the High Court  and  direct  the  respondents  not  to
        recover any amount of salary which had been paid to  the  appellant
        in pursuance of some mistake committed in  pay  fixation  in  1986.
        The amount of pension shall also not be reduced and  the  appellant
        shall be paid  pension  as  fixed  earlier  at  the  time  of   his
        retirement.  It is pertinent to note that the Government had framed
        such  a  policy  under  its  G.O.  dated  16th  January,  2007  and
        therefore, the  respondent  authorities  could  not  have  taken  a
        different view in the matter of re-fixing pension of the appellant.


   11.      The submission made on behalf of the learned  counsel  appearing
        for the respondent that the appellant would be getting more  amount
        than what he was entitled to cannot be  accepted  in  view  of  the
        policy laid down by the Government  in  G.O.  dated  16th  January,
        2007.  If the Government feels that  mistakes  are  committed  very
        often, it would be open to the Government to change its policy  but
        as far as the G.O. dated  16th  January,  2007  is  in  force,  the
        respondent-employer could not have passed any order for recovery of
        the excess salary paid to the appellant or for reducing pension  of
        the appellant.


   12.      For the reasons recorded hereinabove, we quash and set aside the
        impugned judgment as well as the order   dated  23.03.2005  whereby
        salary of the appellant was re-fixed  and  order  dated  23.04.2005
        whereby recovery of excess amount of Rs.99,522/- was ordered to  be
        recovered from the appellant.   The appellant shall be paid pension
        which had been determined at  the  time  of  his  retirement,  i.e.
        immediately after 31st December, 2003.  The appeal is  disposed  of
        as allowed with no order as to costs.

     2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41431                               
ANIL R. DAVE, VIKRAMAJIT SEN
 NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5262 OF 2008




SUSHIL KUMAR SINGHAL                …APPELLANT


                                VERSUS

PRAMUKH SACHIV IRRIGATION
DEPARTMENT & OTHERS                 ....RESPONDENTS




                              1 J U D G M E N T



1 ANIL R. DAVE, J.




     1. Being aggrieved by the judgment delivered in Writ Petition No.95 of
        2005 by the High Court of Uttarakhand at Nainital on 14th November,
        2006, this appeal has been filed by  the  appellant-employee,  from
        whom excess amount of salary, which had been  paid  by  mistake  is
        sought to be recovered and whose  pension  is  also  sought  to  be
        reduced.
     2. The appellant retired  on  31st  December,  2003  as  an  Assistant
        Engineer and on the basis of his last salary drawn, his pension had
        been  fixed.  At  the  time  of  his  retirement,  his  salary  was
        Rs.11,625/- and on the basis of the said salary,  his  pension  had
        been fixed.
     3. After a few years of his retirement, it was found by the respondent-
        employer that salary of the appellant had  been  wrongly  fixed  in
        1986 and therefore, his salary had been re-fixed by an order  dated
        23.03.2005.  On  the   basis  of  the  re-fixed  salary  a  sum  of
        Rs.99,522/- was sought to be  recovered  and  for  that  purpose  a
        notice  had  been  issued  to  the  appellant  on  23.04.2005.   In
        pursuance of the incorrect fixation of his  salary  in  1986,   his
        salary at the time of his retirement had  also  been  reduced  from
        Rs.11625/- to Rs.10,975/- and therefore, his pension had also  been
        reduced.
     4.  The  aforestated  action  of  the  respondent-employer  had   been
        challenged by the appellant by filing the aforestated Writ Petition
        before the High Court.  The High Court was pleased  to  reject  the
        petition as it had come to the  conclusion  that  the  pay  of  the
        appellant had been wrongly fixed and therefore, the impugned action
        of the respondent-employer with regard to recovery  of  the  excess
        salary paid and reduction in the pension was justified.
     5. It had been submitted by the  learned  counsel  appearing  for  the
        appellant employee that the impugned judgment delivered by the High
        Court is incorrect for the reason  that  the  High  Court  did  not
        consider  the  G.O.  dated   16.1.2007   bearing   No.S-3-35/10-07-
        101(6)/2005 which reads as under:


                 “[1].  Pension  Fixation  Authority  shall   inquire   into
                 emoluments of only last 10 months prior to  retirement  and
                 for that examine  the  records  of  only  two  years  prior
                 thereto i.e.  only  the  records  of  34  months  would  be
                 examined for the purpose of grant of pension, as  has  been
                 provided  in   the   aforesaid   Government   order   dated
                 13.12.1977.


                 [2].  Pension Allowing Authority shall not be  entitled  to
                 correct the mistake in determining the pay  during  service
                 tenure beyond the period  prescribed  in  para  (1)  above.
                 Mistakes  in  pay  determination  of  an  employee  can  be
                 effectively  removed  through  the   process   of   general
                 inquiry/audit only when the employee is still in service.”






   6. It had been submitted by the learned counsel that  the  appellant  had
        retired on 31st December, 2003 and somewhere in the month of March,
        2005 it was revealed that a mistake had been committed while fixing
        pay of the appellant in 1986.  It had been further  submitted  that
        by virtue of the aforestated G.O. dated 16th   January,  2007,  the
        mistake committed in pay fixation beyond period of 34 months  prior
        to retirement of the appellant  could  not  have  been  taken  into
        account by the  respondent  employer  and  therefore,  neither  any
        recovery could have been sought by the respondents nor there  could
        have been any reduction in the pension on the basis of reduction of
        salary.


   7. Upon perusal of the aforestated G.O. and the submission  made  by  the
        learned counsel appearing for the appellant, it is not  in  dispute
        that the appellant had retired on 31st December, 2003  and  at  the
        time of his retirement his salary was Rs.11,625/- and on the  basis
        of the said  salary  his  pension  had  been  fixed  as  Rs.9000/-.
        Admittedly, if any mistake had been committed in pay fixation,  the
        mistake had  been  committed  in  1986,  i.e.  much  prior  to  the
        retirement of  the  appellant  and  therefore,  by  virtue  of  the
        aforestated G.O. dated 16th January, 2007, neither any salary  paid
        by mistake to the appellant could have been recovered  nor  pension
        of the appellant could have been reduced.


   8. The learned counsel appearing for the respondent  employer  could  not
        deny any of the facts stated hereinabove.


   9. In the aforestated circumstances, the High Court was not correct while
        permitting the respondent authorities to reduce the pension payable
        to the appellant by not setting aside   the  order  whereby  excess
        amount of salary paid to the appellant was sought to be recovered.


   10.      For the aforestated reasons,  we  quash  the  impugned  judgment
        delivered by the High Court  and  direct  the  respondents  not  to
        recover any amount of salary which had been paid to  the  appellant
        in pursuance of some mistake committed in  pay  fixation  in  1986.
        The amount of pension shall also not be reduced and  the  appellant
        shall be paid  pension  as  fixed  earlier  at  the  time  of   his
        retirement.  It is pertinent to note that the Government had framed
        such  a  policy  under  its  G.O.  dated  16th  January,  2007  and
        therefore, the  respondent  authorities  could  not  have  taken  a
        different view in the matter of re-fixing pension of the appellant.


   11.      The submission made on behalf of the learned  counsel  appearing
        for the respondent that the appellant would be getting more  amount
        than what he was entitled to cannot be  accepted  in  view  of  the
        policy laid down by the Government  in  G.O.  dated  16th  January,
        2007.  If the Government feels that  mistakes  are  committed  very
        often, it would be open to the Government to change its policy  but
        as far as the G.O. dated  16th  January,  2007  is  in  force,  the
        respondent-employer could not have passed any order for recovery of
        the excess salary paid to the appellant or for reducing pension  of
        the appellant.


   12.      For the reasons recorded hereinabove, we quash and set aside the
        impugned judgment as well as the order   dated  23.03.2005  whereby
        salary of the appellant was re-fixed  and  order  dated  23.04.2005
        whereby recovery of excess amount of Rs.99,522/- was ordered to  be
        recovered from the appellant.   The appellant shall be paid pension
        which had been determined at  the  time  of  his  retirement,  i.e.
        immediately after 31st December, 2003.  The appeal is  disposed  of
        as allowed with no order as to costs.


                                             .…..……………............J.
                                                                 (ANIL    R.
DAVE)



                                       .……..............................J.
                                                                 (VIKRAMAJIT
SEN)
   New Delhi
   April 17,  2014.

-----------------------
8


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.