Smt.Indubai W/O Baburao Thakare vs The Regional Transport Officer, ...
2018 Latest Caselaw 646 Bom

                                                                                                                             wp.3735.02
                                                                       1


                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          BENCH AT NAGPUR, NAGPUR.
                                                     ...

                                             WRIT PETITION NO. 3735/2002


*           Smt. Indubai w/o Baburaso Thakare
            Aged about 67 years, occu: presently NIL
            R/o Laxmi Nagar, Nagpur
            Near Water Tank, Nagpur. .         ..                                                             ..PETITIONER


                        versus

1)          The Regional Transport Officer
            Opp: Giripeth Post Office, Nagpur.

2)          The State of Maharashtra
            Through the Transport Commissioner,
            Mittal Chamber, Nariman Point, Mumbai.                                                            ..RESPONDENTS

...............................................................................................................................................
                         Ms. K K Pathak, Advocate for the petitioner
                         Miss T.Khan, AGP for respondents
................................................................................................................................................


                                                                           CORAM: B.P. DHARMADHIKARI &
                                                                                  MRS. SWAPNA JOSHI, JJ.

DATED: 18th January, 2018

ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)

1. Heard Ms. Pathak for petitioner and learned AGP (Ms) T. Khan for

respondents.

2. We need not go into the disputed issues as petitioner does not challenge

any finding of fact recorded by the Maharashtra Administrative Tribunal (MAT).

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3. Submission is, while upholding reversion of petitioner from post of Junior

Auditor as Accountant, salary received by her as Auditor till superannuation till 30th April,

1994 has been protected but then fact that she has also received pension accordingly,

has been lost sight of and MAT has therefore not protected pension received by her till

adjudication by MAT. Contention is, petitioner is not opposing consequential reduction of

pension but then the recovery of pension already received from 30th April,1994 onwards

should not be permitted.

4. Learned AGP, on the other hand, points out that earlier promotion of

petitioner which formed subject-matter of Writ Petition No.1759/1982 was on ad-hoc basis

and when it was sought to be taken away, in that Writ Petition on 10.6.1982, High Court

directed reconsideration of entitlement of petitioner without reference to uncommunicated

adverse remarks. Accordingly, she was considered in Selection Committee on 22.1.1987

and was found unfit. Because of this exercise, again she was sought to be reverted on

22.6.1988 and that reversion came to be stayed in Writ Petition No. 596/1988. Because

of this stay, she could continue as Junior Auditor till her superannuation. All these facts

are not in dispute. In due course, Writ Petition No.596/1988 came to be transferred to

MAT at Nagpur and was registered as Transfer Application No. 950/1992 and by

impugned judgment dated 20th June,2002 has decided it.

5. Perusal of impugned order of MAT reveals that the wages received by

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petitioner as Junior Auditor till 30th April,1994 have been protected. MAT has permitted

pension to be released. However the fact then remains that from 22.1.1987 to 1992 the

petitioner has received pension as junior Auditor has not been looked into and, therefore,

there is no direction by MAT either permitting employer to recover the amount of excess

pension received by petitioner on promoted post or then prohibiting employer from

recovering it.

6. In view of this position, on 22.10.2002, while issuing rule in the matter,

this Court has restrained the respondent-employer from effecting recovery.

7. Reason for protecting salary of petitioner as Junior Auditor, may be that

she actually worked on that post and, therefore, earned that salary. Moreover, permitting

recovery after superannuation for such work may not have been just and proper. In any

case, recovery from pension on account of reduction of last pay drawn on eve of

superannuation will also be cruel, more so, at this stage, when we are looking at

controversy after 23-years of her superannuation.

8. Hence without observing anything more, we direct respondent-employer

not to effect any recovery towards pension received by petitioner after her superannuation

till execution of order of MAT dated 20th June,2002. Her pension from the date on which

said order has been given effect to shall, however, be by treating her last pay as on post

of Accountant.

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9. Accordingly, Writ Petition is partly allowed and dispose it of. No costs.

                         JUDGE                                  JUDGE

sahare