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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

 

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