Bombay High Court
Sanatkumar S/O Sanhaiyalal Jain vs New India Assurance Com. Ltd, Thr ... on 17 October, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No.2907/2009
Sanatkumar s/o Kanhaiyalal Jain,
Aged 50 years, Occ.-Retired,
R/o.-Girnar Appartments, Itwari,
Baburao Galli, Nagpur. PETITIONER
.....VERSUS.....
1] New India Assurance Company Ltd.,
through its Chairman and Managing Director,
87, MG Road, Fort, Mumbai.
2] New India Assurance Company Ltd.,
through its Chief Regional Manager,
Dr. Ambedkar Bhawan, 4th Floor, High Land Rise,
Seminary Hills, Nagpur.
3] The Government of India,
Ministry of Finance (Department of Financial Services),
Insurance Division, New Delhi. R
ESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri A.J. Pophaly, Advocate for the respondent nos.1 and 2.
And
WRIT PETITION No.2908/2009
Ravindra s/o Prabhakar Gogte,
Aged 51 years, Occ.-Retired,
R/o.-Plot No.24, "Samruddhi Apts.,
Daga Layout, Nagpur-33. PETITIONER
.....VERSUS.....
1] New India Assurance Company Ltd.,
through its Chairman and Managing Director,
87, MG Road, Fort, Mumbai.
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2] New India Assurance Company Ltd.,
through its Chief Regional Manager,
Dr. Ambedkar Bhawan, 4th Floor, High Land Rise,
Seminary Hills, Nagpur.
3] The Government of India,
Ministry of Finance (Department of Financial Services),
Insurance Division, New Delhi. R
ESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri A.J. Pophaly, Advocate for the respondent nos.1 and 2.
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 17
October, 2016.
th
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)
Since the issue involved in these petitions is identical, they are heard
together and are decided by this common judgment.
By these Writ Petitions, the petitioners have sought a direction against
the respondent nos. 1 and 2 to revise the pay scale of the petitioners. As per
the second prayer the petitioners have sought a direction against the
respondents to refund the amount that was recovered from the pensionary
benefits of the petitioners towards the decrease in increments. Thirdly, the
petitioners have sought a direction against the respondents for the refund of
the amount that was wrongfully recovered from the petitioners in the matter
of audit recovery.
Shri Kulkarni, the learned Counsel for the petitioners states that the first
prayer made in both the Writ Petitions in regard to the claim of the petitioners
for revision of pay scale need not be granted as the issue in that regard is
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answered against the petitioners by the Hon'ble Supreme Court in the cases of
similarly situated employees of the respondents. As regards the second prayer
it is stated that the same would not survive in view of the redressal of the
grievance, as the respondents have repaid the amount that was wrongfully
recovered from the retiral dues of the petitioners towards the decrease in
increments. It is stated that the petitions would survive only in respect of the
third prayer in regard to the recovery in the matter of audit recovery. It is
stated that an amount of Rs.82,584/- is recovered from the retiral benefits
payable to the petitioner in Writ Petition No. 2908 of 2009 and a sum of
Rs.1,71,818/- is recovered from the retiral benefits payable to the petitioner
in Writ Petition No.2907 of 2009.
It is stated on behalf of the petitioners that the respondents were not
justified in recovering an amount of Rs. 82,584/- and Rs. 1,71,818/- from the
petitioners towards audit recovery. It is stated that when the petitioners were
working as Development Officers with the respondent-Insurance Company,
they had proposed insurance policies for the insured and for the execution of
such policies, the premium was proposed by the petitioners. It is stated that
after the petitioners stood retired in pursuance of the Special Voluntary
Retirement Scheme there was an audit objection that though for particular
policies a higher premium ought to have been fixed, the petitioners had
proposed a lower premium. It is stated that the petitioners were not permitted
to represent against the audit objection. It is stated that the petitioners were
not heard in the matter of the aforesaid audit recovery and no opportunity
whatsoever was granted to the petitioners when the respondents recovered the
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aforesaid amount from the retiral benefits of the petitioners. It is stated that
the third prayer of the petitioners needs to be granted, inasmuch as, the
aforesaid amounts have been recovered from the petitioners without granting
any opportunity to them.
Shri Pophaly, the learned Counsel for the respondent nos.1 and 2
admits that the aforesaid amounts have been recovered from the retiral
benefits that were payable to the petitioners. It is however fairly stated that no
notice was served on the petitioners asking them to show cause as to why the
aforesaid amounts should not be recovered from the petitioners in view of
their proposals, fixing a lower premium.
It is apparent on hearing the learned Counsel for the parties and on a
perusal of the Writ Petitions that the respondents have made the recovery of
the amount of Rs.82,584/- and Rs.1,71,818/- from the petitioners in Writ
Petition Nos.2908 of 2009 and 2907 of 2009 respectively without granting an
opportunity to the petitioners of showing cause as to why the said amount
should not be recovered from them. It appears that the impugned order in
regard to the aforesaid recoveries is passed without granting a fair
opportunity to the petitioners of defending the action of the respondents.
Hence, for the reasons aforesaid, both the Writ Petitions are partly
allowed. The action of the respondents of recovering the amount of
Rs.82,584/- from the petitioner in Writ Petition No.2908 of 2009 and
Rs.1,71,818/- from the petitioner in Writ Petition No.2907 of 2009 is hereby
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quashed and set aside. The respondents are free to take appropriate action
against the petitioners after granting an opportunity to them. The respondents
are directed to refund the aforesaid amount to the petitioners within four
weeks from the date of furnishing of an undertaking by each of the petitioners
to the respondents within three weeks that they would pay the amount to the
respondents immediately, if the audit objection is upheld after granting an
opportunity of hearing to the petitioners.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUD
GE
Deshmukh
