Bombay High Court
Satyanarayan S/O Jamnaprasad ... vs New India Assurance Company Ltd. ... 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.2393/2009
Satyanarayan s/o Jamnaprasad Sharma,
Aged 55 years, Occ.-Retired,
R/o.-Near Railway Bridge,
Maskasath, Itwari, 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.
Ms N.G. Chaubey, Advocate for the respondent no.3.
And
WRIT PETITION No.2410/2009
Sanjeev s/o Manoharlal Sehgal,
Aged 55 years, Occ.-Retired,
R/o.-Flat No.7, Omar Co-operative Housing Society,
Buddha Nagar, Nagpur. 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.)
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. The
petitioners have sought a direction against the respondent nos.1 and 2 to
refund the amount recovered from the petitioners towards the decrease in
increments. Thirdly, the petitioners have challenged the order of the
respondents seeking the recovery of the commission that was paid to the
commission agents in pursuance of various schemes floated by the respondent
nos. 1 and 2 till those schemes were withdrawn in the year 2001. The
petitioners have sought a direction against the respondent nos. 1 and 2 to
refund the amount recovered from the petitioners towards commission
recovery from their pensionary benefits.
Shri Kulkarni, the learned Counsel for the petitioners states that the
first two prayers made by the petitioners would not survive as the issue in
regard to the claim of the petitioners for revision of pay scale has been
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answered by the Hon'ble Supreme Court against the petitioners in the cases of
similarly situated employees. In regard to the other prayer, for a direction
against the respondents to repay the amount that was recovered from the
petitioners towards the decrease in increments, it is stated that during the
pendency of the Writ Petitions, the said amount is repaid to the petitioners
and the grievance of the petitioners in that regard would not survive. It is
stated that the cause for filing these Writ Petitions would survive only in
respect of the orders seeking the commission recovery, in the year 2009.
The learned Counsel for the petitioners states that the respondent nos.
1 and 2 were not justified in seeking the commission recovery from the
petitioners in the year 2009 in respect of the amounts paid to the commission
agents in pursuance of the schemes that were in existence before the year
2001, without hearing the petitioners and without granting any opportunity
whatsoever, to them. It is stated that the impugned orders in respect of
commission recovery are bad in law, inasmuch as the said orders are passed
without granting an opportunity to the petitioners to show cause as to why the
commission recovery cannot be ordered against them. It is submitted that by
passing the impugned orders of commission recovery without hearing the
petitioners, the respondents have directly deducted the said amounts from
the pensionary benefits that were payable to the petitioners. It is stated that
since the orders of commission recovery are penal in nature the respondents
ought to have granted an opportunity to the petitioners before passing the
orders.
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The learned Counsel for the respondent nos. 1 and 2 fairly admits that
before passing the orders seeking the recovery of the commission amount, the
petitioners were not served with a notice asking them to show cause as to why
the recovery should not be made from them. It is stated in the circumstances
of the case an appropriate order may be passed.
On hearing the learned Counsel for the parties, it appears that the cause
of action for filing the Writ Petitions in respect of the first two prayers would
not survive but in respect of the third prayer it would be necessary to consider
whether the respondents could have made the commission recovery without
granting an opportunity to the petitioners. The petitioners were working as
Development Officers with the respondent nos. 1 and 2 when they were
permitted to retire under the Special Voluntary Retirement Scheme in the year
2006. In respect of the commission that was paid to some commission agents
before the year 2001 in pursuance of the schemes that were cancelled in the
year 2001, the respondent nos. 1 and 2 have made the recovery of certain
amounts from the retiral benefits of the petitioners without granting any
opportunity to the petitioners. The orders seeking the aforesaid recovery are
penal in nature and the same could not have been passed without hearing the
petitioners and without granting an opportunity to them. The opportunity
would be necessary as the recovery was sought to be made for the commission
that was paid to the commission agents in pursuance of the schemes that were
withdrawn in the year 2001. Since the impugned orders seeking the
recovery of commission were passed without granting any opportunity to the
petitioners, they are liable to be set aside.
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Hence, for the reasons aforesaid both the Writ Petitions are partly
allowed. The orders seeking the recovery of the commission from the
petitioners are quashed and set aside. The respondent nos. 1 and 2 are
directed to refund the amount that is recovered from the retiral benefits of the
petitioners, to the petitioners within a period of four weeks from the date of
furnishing of an undertaking by the petitioners within three weeks that the
petitioners would immediately refund the amount to the respondent nos.1 and
2 in case the orders seeking a recovery of the commission from the petitioners
are sustained. The respondents may pass appropriate orders in respect of
commission recovery after hearing the petitioners.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUD
GE
Deshmukh
