No Recovery Can Be Made From Pension If Employee's Promotion Was Not Based On Any Misrepresentation: J&K&L High Court

A bench comprising Justices Tashi Rabstan & Wasim Sadiq Nargal observed

"By no stretch of imagination, consequential benefits can be taken at this belated stage, when she is drawing the pension after retirement:"

The bench was hearing a plea in terms of which the petitioner was challenging a notice issued to her by the Respondent-BSNL, wherein she was asked to show cause as to why her promotion to the post of Jr. Accounts Officer made on 16.12.2013 may not be withdrawn.

Among several other grounds the petitioner pleaded that she had opted for Voluntary Retirement Scheme way back in 2019 and her pension had been fixed on the basis of last pay drawn as that of Accounts Officer in terms of the Pension Payment Order and hence the impugned show cause notice by no stretch of imagination can sustain in the eyes of law.

After perusing the available record the bench observed that that although show cause notice was issued on 05.02.2018 with a view to withdraw her promotion as Junior Accounts Officer given on 16.12.2013, then subsequently, how and under what circumstances, the petitioner was further promoted in the grade of Accounts Officer on 29.06.2018 by the respondents has not been explained nor respondents could justify their stand.

"We fail to understand that, once the show cause notice has been issued with regard to her promotion as Junior Accounts Officer, then subsequently how and under what circumstances, she was promoted in the grade of Accounts Officer, that too, pursuant to the approval of the competent authority." the bench noted.

Adjudicating the matter the bench further observed that if an excess amount was not paid on account of any misrepresentation or fraud of the employee and rather it was by applying a wrong principle or interpretation of rule/ order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable subsequently after retirement.

The bench also found it worthwhile to record the apex court observations in Sahib Ram v. State of Haryana and Others, 1995 Supp (1) SCC 18 wherein SC while restraining such recovery observed..

"The appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant".

Deliberating further on the subject the bench observed that the pensioners are on a better footing than the in-service employees and such pensioners can seek a direction that wrong payment should not be recovered, as pensioners are in a more disadvantageous position when compared to in service employees, any attempt to recover an excess wrong payment would cause undue hardship to them.

In view of the position of law discussed above the bench allowed the writ petition and set aside the impugned show cause notice.

Case Title: Sonam Dolma Vs Bharat Sanchar Nigam Limited & Ors.

Citation : 2022 LiveLaw (JKL) 84

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