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2014 Supreme(Bom) 851
High Court of Judicature at Bombay
ANOOP V. MOHTA & M.S. SONAK, JJ.
Kamlakar Dagdu Narkhade
Versus
K.N. Bhise Arts & Commerce College, through Principal Dr. R.R. Patil & Others
Writ Petition No. 11405 of 2012
Decided On: 07-04-2014
For the Petitioner:C.G. Gavnekar a/w. Suhas Deokar, G.S. Hiranandani, Advocates.
For the Respondents: R1, S.S. Bhende, AGP.
Headnote:Constitution of India - Article 226 - Recovery of excess payment from pension. - Since petitioner not committed any fraud or misrepresentation to receive excess salary hence recovery of excess payment from out of pensionary benefits due and payable to petitioner, cannot be allowed. - For this reason also, the State/College cannot be permitted to effect recovery of alleged excess payment at this belated stage from out of the pensionary and retiral benefits due and payable to Kamlakar.
Constitution of India - Article 226 - Denial of Pension. - Since college is liable to pay interest on withheld amount of pension hence demand of interest by college upon contribution towards CPF amount, improper. - The moot issue which arises is whether the State/College is entitled to recovery of an amount of Rs. 1,32,834/- towards interest as aforesaid and Rs. 7,31,128/- towards excess salary paid to Kamalakar in the academic year 2001-2002 when allegedly, there was a dip in the strength of students.
In so far as the interest amount of Rs. 1,32,834/- is concerned, there is absolutely no justification on the part of State/College to insist upon recovery of the same from out of the pension and other retrial benefits due and payable to Kamlakar. It needs to be noted that Kamlakar time and again had offered for adjustment of the said amount from out of the pensionary and other retiral benefit due to him. In any case, it was the duty of the State/College to release at least the balance pension and other retiral benefits to Kamlakar soon after or at least within a reasonable time from his retirement which was on 30.4.2010. The State/College, mostly for bureaucratic reasons have failed to make such payments to Kamlakar. Normally, the State/College would be liable to pay interest upon the balance amount so withheld by them without any real or reasonable cause. The rate at which such interest has been levied is unclear, but the same appears to be excessive. Therefore, considering the totality of circumstances and by setting off equities, the State/College is not entitled to recover an amount of Rs. 1,32,834/- towards interest upon contribution towards CPF.
Constitution of India - Article 226 - Recovery of excess payment from pension. - Since petitioner not committed any fraud or misrepresentation to receive excess salary hence recovery of excess payment from out of pensionary benefits due and payable to petitioner, cannot be allowed. - For this reason also, the State/College cannot be permitted to effect recovery of alleged excess payment at this belated stage from out of the pensionary and retiral benefits due and payable to Kamlakar.
Per M.S. Sonak, J.
1. Rule. By order dated 6.5.2013, the parties were put to notice that the matter would be disposed of finally.
2. Kamlakar Dagdu Narkhade (Kamlakar) retired from the services of K.N.Bishe Arts and Commerce College (college) as Associate Professor on 30.4.2010 after completion of service spread over almost two decades. There is no dispute that the college receives aid from the State and the service of Kamlakar was pensionable. Despite completion of all formalities, for over year Kamlakar was denied pension by the State, which is responsible for such payment. Therefore, Kamlakar preferred the present petition on 21.11.2012, seeking early release of pension.
3. By way of interim relief, this Court directed the State to pay 'provisional pension' to Kamlakar. In partial compliance, an amount of Rs.2,19,718/-was paid by the State to Kamlakar in the month of May 2013. This, according to Kamlakar corresponds to pension / retiral benefits corresponding to a period of hardly six months. The State, without seeking any modification of the interim orders, thereafter stopped payment of such 'provisional pension' to Kamlakar.
4. After several adjournments, the college and State filed their returns in the month of May 2013. It is the case of the college and State that Kamlakar is due and payable to the State/college an amount of Rs.18,72,622/- and unless Kamlakar pays such amount or consents to the recovery thereof, there is no question of payment of any pension or retiral benefits to Kamlakar. The particulars of such amount recoverable from Kamlakar were stated to be as follows:
Sr. No Particulars Recovery amount
1 Government share (CPF) with interest up to 28.2.2013 Rs. 3,10,349/-
2 Own share (CPF) with interest up to 28.2.2013 Rs. 3,10,349/-
3 Salary recovery excess amount due to salary fixction date 26.8.1993 to 30.4.2010 Rs. 5,07,796/-
4 Salary amount disallowed by Nagpur A.G. Due to insufficient students 2001-2002 Rs. 7,31,128/-
5 62 books not returned to college library Rs. 13,000/-
Total amount for recoveries Rs. 18,72,622/-
5. In the petition as filed, Kamlakar had himself acknowledged that certain amounts were due and payable by him to the State/College. Kamlakar, in the circumstances, had urged that the amount due be determined and adjusted from out of the retiral benefits due and payable to him. Prayer clause (b) of the petition bears out such a plea. Besides, in response to the return filed by the College and State, Kamlakar has filed affidavit-in-rejoinder in July 2013 wherein Kamlakar admitted that he is due and payable a sum of Rs.10,08,660/-to the State/College. This admission is contained in paragraph 27, which reads thus:
“I say that the amount of admitted recovery from me according to my calculation under Item No.1 to 3 and 5 are as follows:
(i) PG Government Share Rs. 2,43,932/-
(ii) PF Own Share Rs. 2,43, 932/-
(iii) Salary Recovery Rs. 5,07,796/-
(iv) Recovery on account of books Rs. 13,000/-
Total Rs. 10,08,660/-
I say that out of the said amount, the amount of Rs.7,00,000/- payable to me towards DRCG can be adjusted and the balance amount of Rs.3,08,660/- can be deducted from the pension payable to me. I say my last pay without (DA) amounts to Rs.57,550/- and half of the same being the pension amount is Rs.28775/-. I have not received the pension since 1.5.2010 except provisional pension of six months. I have no objection if the above said amount of Rs.3,08,660/- is deducted from the final pension payable to me.”
6. From the aforesaid, it is clear that the dispute between Kamlakar on one hand and the State/College on other, is primarily with regard to proposed recovery of the following amounts:
(i) An amount of Rs.1,32,834/- which represents interest upto 28.2.2013 upon the share of the State and Kamlakar upon the Central PF amount of Rs. 6,20,698/-; and
(ii) An amount of Rs.7,31,128/- towards the salary amount disallowed by Nagpur A.G. on account of fall in the strength of students during ac
