Bombay High Court
Arun Ambadasji Chawade vs The Chief General Manager on 14 October, 2013
Bench: V.A. Naik, A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1662 OF 2013.
PETITIONER: Arun Ambadasji Chawade, aged
about 64 years, Occ: Retd.
B.S.N.L. Employee, R/o Swagat
Colony, Karla Chowk, Arvi
Road, Behind Petrol Pump,
Wardha.
ig -VERSUS-
RESPONDENTS: 1 The Chief General Manager,
Bharat Sanchar Nigam Ltd.,
Administrative Building, 3rd
Floor, "C" Wing, Juhu Danda,
Santacruz (West), Mumbai:400
054.
2 The Controller of
Communication Accounts
Officer (Pension), Department
of Telecommunications,
Maharashtra Circle, BSNL.,
Administrative Building, 3rd
Floor, "C" Wing, Juhu Danda,
Santacruz (West), Mumbai :
400 054.
3 Telecom District Engineer
(Admn), Bharat Sanchar Nigam
Ltd., Wardha District Sanchar
Bhawan, MIDC, Wardha.
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4 Accounts Officer (Cash), C/o
Telecom District Engineer,
Bharat Sanchar Nigam Ltd.,
Wardha District Sanchar
Bhawan, MIDC, Wardha.
M r. J. R. Kidilay, Advocate for the petitioner.
Mr. R. G. Agrawal, Advocate for the respondent Nos.1 to
4.
CORAM: SMT.VASANTI A. NAIK AND
A.S. CHANDURKAR, JJ.
ig DATED: 14TH OCTOBER, 2013.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. Rule. Rule made returnable forthwith and heard
finally with the consent of the parties.
2. The challenge in the present writ petition is to the
communication dated 8-1-2013 issued by the respondent
No.4 thereby directing the petitioner to deposit an over paid
amount of salary to the tune of Rs.1,49,504/-.
3. The petitioner was appointed as Phone Mechanic
with the respondent No.1. On attaining the age of
superannuation, the petitioner retired from service on 31-3-
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2009. On 8-1-2013, the aforesaid communication came to be
issued to the petitioner calling upon him to deposit an over
paid salary of Rs.1,49,504/-. The same has, therefore, given
rise to the present writ petition.
4. Shri Kidilay, the learned Counsel appearing for the
petitioner has firstly submitted that the aforesaid
communication was issued to the petitioner without issuing
any show cause notice. It is further submitted that there are
no reasons mentioned in the aforesaid communication as to
why the petitioner is being directed to deposit the overpaid
salary. It is then submitted that as the petitioner had retired
from service on reaching the age of superannuation on 31-3-
2009, it was not permissible in law to seek recovery of
aforesaid amount after the petitioner's retirement. Learned
Counsel for the petitioner has in this regard place reliance
upon the judgment of the Hon'ble Supreme Court in the case
of Syed Abdul Qadir & others Vs. State of Bihar, 2009 AIR
SCW 1891, especially, para 28 thereof.
5. Shri R. G. Agrawal, the learned Counsel appearing
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for the respondent Nos.1 to 4 has supported the impugned
communication. It is submitted that as the aforesaid
communication relates to the service benefits of the
petitioner, the remedy before the Central Administrative
Tribunal could be invoked in case the petitioner is aggrieved
by the said communication. It is further submitted that
excess payment was disbursed to the petitioner on account of
the wrong pay fixation and hence, the petitioner was liable to
refund the same to the department. In support of the
aforesaid submission, the learned Counsel has relied upon the
decision of the Hon'ble Supreme Court in the case of Chandi
Prasad Uniyal and Ors. Vs State of Uttarkhand and Ors,
AIR 2012 Supreme Court 2951. The learned Counsel,
therefore, seeks dismissal of the writ petition.
6. Having heard the respective Counsel, it is clear
that certain facts are not in dispute. The overpayment is on
account of wrong pay fixation by the respondents and not on
account of any misrepresentation or fraud by the petitioner.
Similarly, the petitioner has retired from service on 31-3-2009
and the recovery is sought to be made after almost four years.
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7. The Hon'ble Supreme Court in case of Syed Abdul
Qadir (supra) has observed that where the excess payment is
made to an employee not on account of any
misrepresentation or fraud on his part, and that the employee
was not aware that the amount paid to him was in excess to
his entitlement, then in such cases, the recovery should not be
made. It has been further observed that if the employee has
either retired or is on the verge of retirement, such recovery
should not be made in such situation. This judgment has
been rendered by three learned Judges of the Hon'ble
Supreme Court.
8. In so far as the judgment relied upon by the
learned Counsel for the respondents in the case of Chandi
Prasad (Supra) is concerned, it has been observed in para 14
therein after referring to the judgment in Syed Abdul Qadir's
case that the facts of said case wherein the beneficiaries had
retired or were on the verge of retirement had weighed by the
Court. In the case of Chandi Prasad, the employee was in
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service and the excess payment was directed to be recovered
from the employee's salary in 12 equal instalments. In fact, in
para 17 of the aforesaid judgment, it has been held that
except few instances as referred to in Syed Abdul Quadir's
case, the excess payment can be recovered if it has been made
on account of wrong or irregular pay fixation. It is, however,
clear that the facts of the present case are similar to the facts
that were considered by the Hon'ble Apex Court in case of
Syed Abdul Quadir namely that the present petitioner had
retired in the year 2009 and the wrong overpayment was not
on account of any misrepresentation or fraud, on the part of
the petitioner.
9. In so far as the submission made on behalf of the
respondents pertaining to availability of alternate remedy is
concerned, considering the facts of the present case wherein
the petitioner has already retired in the year 2009 and his
case stands covered by the law laid down by the Hon'ble Apex
Court in the case of Syed Abdul Qadir (supra), relegating the
petitioner to avail the alternate remedy would not be in the
interest of justice. The basic facts not being in dispute, we
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feel that this is a fit case for exercising the writ jurisdiction.
We find that the petitioner is entitled for the reliefs as prayed
for in the present writ petition.
10. In view of this, as the impugned communication
seeks to recover the overpayment of salary made to the
petitioner four years after his retirement and when it is not
alleged that the said overpayment was on account of
misrepresentation or fraud on the part of the petitioner, the
same will be required to be quashed. Accordingly, the
impugned communication dated 8-1-2013 is quashed. Rule is
made absolute in the aforesaid terms. No order as to costs.
JUDGE JUDGE
//MULEY//
