Shekhar S/O Purushottam Kannao ... vs New India Assurance Company Ltd., ...
2023 Latest Caselaw 9535 Bom

2023:BHC-NAG:13621-DB
                                       1                         wp-3771-2010-J.odt


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


                          WRIT PETITION No. 3771 OF 2010

                  PETITIONERs:     : 1 Shekhar s/o Purshotam Kannao
                                       Aged about 56 years, Occu. Retired,
                                       R/o Kannao Bhawan, Karanja,
                                       Dist. Washim
                                      2 Haribhau s/o Mahadeorao Khedkar
                                        Aged about 59 years, Occu. Retired,
                                        R/o Anand Co-operative Housing
                                        Society, Gorakshan Road, Akola
                                      3 Mohankumar s/o Shankarlal Jajoo
                                        Aged 56 years, Occu. Retired,
                                        R/o Khemka Mension, Gorakshan Road,
                                        Akola
                                      4 Shashikant s/o Narayan Mahajan
                                        Aged about 56 years, Occu. Retired,
                                        R/o 69, Saraswati Colony, Shahada,
                                        Dist. Nandurbar
                                                Vs.
                  RESPONDENTS : 1 New India Assurance Company Limited,
                                  through its Chairman and Managing
                                  Director, 87, M.G. Road, Fort, Mumbai-
                                  400001
                                      2 New India Assurance Company Limited,
                                        through its Chief Regional Manager, Dr.
                                        Ambedkar Bhawan, 4th Floor, High Land
                                        Rise, Seminary Hills, Nagpur

                   Mr. D.L. Dharmadhikari, Advocate with Mr. R.M. Pande, Adv. for
                   petitioners
                   Mr. B.P. Bhatt, Advocate or respondent Nos. 1 and 2

                             CORAM: AVINASH G. GHAROTE &
                                    URMILA JOSHI-PHALKE, JJ.

DATED : 12th SEPTEMBER, 2023 2 wp-3771-2010-J.odt

ORAL JUDGMENT : (PC)

Rule. Rule is made returnable forthwith. Heard

finally with the consent of learned counsel appearing for rival

parties.

2. The petition challenges the deductions made by the

respondents from the pensionary benefits payable to the

petitioners on account of a plea that since the petitioners

were transferred in the Administrator Division they were not

entitled to the non-core benefits which had been incorrectly

paid for the duration 01/04/2003 till 10/04/2008, the date

on which they had been relieved.

3. Mr. Bhatt, learned counsel for the respondents does

not dispute that on the date on which the petitioners had

moved an application for VRS under the scheme notified on

02/01/2003 (page 25), all the petitioners were working in the

Marketing Division of the respondents as Development

Officers. He, however, submits that since there was a delay on

account of challenge to the scheme before the Hon'ble Apex

Court, which challenge was finally decided in 2008, the

petitioners were posted in the Administrative Division on

account of which since they were not entitled to the non-core 3 wp-3771-2010-J.odt

benefits and were incorrectly paid, the same has rightly been

recovered from their retiral benefits.

4. It is an undisputed position, that the petitioners

were working with the respondent Department as

Development Officers. The Central Government by the

Notification dated 2nd January, 2003, notified the General

Insurance (Rationalization of Pay Scales and Other Conditions

of Service of Development Staff) Amendment Scheme, 2003.

In terms of the said scheme, the development staff were

entitled to opt for voluntary retirement package and the

package was to take effect within a period of 60 days from the

date of the application, which is indicated by Clause 15-C

(page 30) of the said Scheme. It is also not disputed that the

petitioners in pursuance of the said scheme applied for the VR

package in the first week of March, 2003, and were to be

relieved on or before 31st March, 2003, however, on account of

challenge being laid to the said scheme, which was turned

down by the Hon'ble Apex Court by upholding the scheme, in

the year 2008, the petitioners were relieved on 11/04/2008.

During this entire duration, the petitioners continued to work

for the respondents. Though it is contended by Mr. Bhat, 4 wp-3771-2010-J.odt

learned counsel for the respondents that for this duration

between 01/4/2003 till 11/04/2008, the petitioners were

posted on the Administrative side and therefore, were not

entitled to the non-core benefits such as conveyance and

entertainment allowance, however, they were paid this for the

aforesaid duration, which according to the respondents being

incorrectly paid while granting the retiral benefits, deductions

were accordingly made of these amounts therefrom, it is

however, material to note, that though such a plea is being

raised, however, in view of the admitted position that the

petitioners were working in the Marketing Division on the date

on which they applied for the VR package, an office order was

necessary to be placed on record to indicate that all the

petitioners were posted in the Administrative Division of the

respondents w.e.f. 01/04/2003. However, there is no such

document placed on record. Even the submissions filed by

the respondents do not contain any such statement. The only

statement in the submissions of the respondents relevant for

the present purpose is that subsequent to the decision of the

Hon'ble Apex Court in the year 2008, since the petitioners

were relieved on 11/04/2008, after their applications for VR 5 wp-3771-2010-J.odt

package in terms of clause 15-C of the Notification dated

02/01/2003 were accepted, they were not entitled to the non-

core benefits.

5. In our considered opinion, such a plea has to be

demonstrated by way of a document indicating the transfer of

the petitioners from the Marketing Division to the

Administrative Division, which admittedly is absent in the

present matter, which absence would clearly indicate that the

petitioners continued to work in the Marketing Division, even

after 01/04/2003. In that view of the matter, the respondents

were therefore, not entitled to make any deductions on

account of non-core benefits being incorrectly paid to the

petitioners, from their retiral benefits. The petition is

therefore, allowed. The respondents are directed to calculate

the amounts due and payable to the petitioners for the

duration 01/04/2003 to 11/04/2008, which they have

deducted on account of non-core benefits, from the retiral

benefits of the petitioners and to pay the same to the

petitioners within a period of sixty days from the date of this

judgment along with interest @6% p.a. from the date of

deductions till repayment.

6 wp-3771-2010-J.odt

Rule is made absolute in above terms. No costs.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)

MP Deshpande

Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 13/09/2023 14:35:18