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2026 Supreme(Bom) 232
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ravindra V. Ghuge, Abhay Mantri, JJ.
Shamshuddin Ali Mullaji - Petitioner
Versus
The Assistant Commissioner of Employees Provident Fund Commissioner (Pension) - Respondent
Writ Petition No. 10462 of 2023
Decided On : 05-03-2026
For the Petitioner:Mr. J. P. Kharge, for the Petitioner
Mr. Rohit Sakhadeo, appointed as Amicus Curiae.
For the Respondent: Ms. Gunjan Chaubey a/w. Mr. Vinay Kate
No dual pension under EPS 1995; must disclose re-employment or obtain Scheme Certificate to club services for single post-superannuation pension. Excess recoverable but adjustable against arrears without interest for elderly showing remorse.
Headnote:(A) Employees’ Pension Scheme, 1995 - Clauses 12, 14 - Form 10-D Clause 16 - Member entitled to superannuation pension on 10+ years service at age 58 or early pension on retirement before 58; option for Scheme Certificate on exit before 58 to club prior service with new employment for single pension post-superannuation - Cannot draw dual pension by applying early pension from first employment while in second without disclosure - Non-disclosure of employment/pension in Clause 16 misrepresentation defrauding exchequer - Excess recoverable, adjustable against arrears without interest on remorse/age. (Paras 2,3,5,6,7,9,15,16)
(B) Recovery of excess benefits - No dual benefits; strict against system fraud, but equity permits adjustment sans interest for elderly confessor volunteering refund. (Paras 13,14,15,18)
Facts of the case:
Petitioner in first employment 1978-1994 (closure), sought no early pension/Scheme Certificate; joined second 1997, superannuated 2009; applied early pension first while employed second, left Clause 16 blank; drew dual pension; department halted payment, sought recovery Rs.88,727/-, arrears Rs.1,66,432/- accumulated.
Findings of Court:
Rs.88,727/- deducted from arrears Rs.1,66,432/-, balance paid within 30 days sans interest; pension recalculated clubbing services w.e.f. April 2026, further arrears June 2024-March 2026 by 15th April 2026.
Issues: Entitlement to dual pension despite non-disclosure; recoverability of excess with/without interest.
Ratio Decidendi: Dual pension impermissible; early pension application while employed mandates disclosure or Scheme Certificate for service clubbing; misrepresentation warrants recovery, tempered by mercy for aged remorseful. Result : Writ petition partly allowed.
| Table of Content |
|---|
| 1. dual pension obtained via employment non-disclosure (Para 1 , 2 , 3 , 6 , 8) |
| 2. amicus confirms scheme certificate requirement (Para 4 , 5 , 20) |
| 3. eps scheme aggregates service via certificate (Para 7 , 9) |
| 4. precedent prohibits dual pension, equitable waiver (Para 10 , 11 , 12) |
| 5. debate on interest for overpaid pension (Para 13 , 14) |
| 6. remorse mitigates fraud recovery strictness (Para 15 , 18) |
| 7. adjust excess, recalculate combined pension (Para 16 , 17 , 19) |
JUDGMENT :
Ravindra V. Ghuge, J.
1. Heard. Rule. Rule made returnable forthwith and heard finally by the consent of the respective parties.
2. This Petition brings out a classic case of misrepresentation, non-disclosure of material information and a systematic act of defrauding the State Exchequer. As we narrate the various dates and sequence of events in the light of the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Employees Pension Scheme, 1995, the story of misrepresentation, non-disclosure and defrauding the State Exchequer, would unfold itself.
3. The dates and sequence of events are as under:
(a) The Petitioner was initially working in Poyasha Pvt. Ltd., Kalwa, Thane, from 1978 to 1994. His service was discontinued due to the closing down of the company.
(b) The Petitioner then joined a private company namely A. S. Moloobhoy and Sons, Mazgaon, Mumbai, on 1st February 1997.
(c) The Petitioner retired from the second service after attaining the age of superannuation, on 3rd June 2009.
(d) After joining the second employment, he moved an Application for early pension with the Provident Fund Authorities (for short, ‘P.F. Authorities’). Based on the said Application, the payment of pension with relation to the first employment commenced, when the Petitioner was already in employment with the new employer.
(e) After he superannuated from the second employment, he filled up one more pension form which is the standard Form 10-D (EPS).
(f) Clause 16 in the form pertains to a question as to whether pension is being drawn under the Employees’ Pension Scheme (EPS), 1995 (for short, ‘EPS, 1995’), which mandates disclosure of any earlier pension or person receiving pension from an earlier employment. The Petitioner left clause 16 blank.
(g) As a consequence, the Petitioner started earning dual pension. The first pertaining to the first employment commenced when he was already in employment with the second employer.
(h) There is no dispute that the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees Pension Scheme, 1995 (EPS) are applicable to the Petitioner.
4. Since the learned Advocate for the Petitioner was intermittently appearing in the matter and as we noticed that he was not present on 29th January 2026, when this matter was listed in the Special Pension Category Cases Board in the drive initiated by this Bench for listing pension matters on every 2nd and 4th Thursday, we were constrained to appoint an Amicus Curiae. We requested Shri Rohit Sakhadeo, learned Advocate who readily agreed.
5. The learned Amicus has tendered a 7 pages note dated 4th March 2026, by way of assistance to the Court. Copies of the said note have been supplied to the learned Advocates for the Petitioner as well as the Respondent Provident Fund Commissioner. We have considered the said note threadbare and we agree with the view expressed by the learned Amicus. If the Petitioner desired early pension, he should have applied for such pension, after he put in qualifying service and retired from his first employment which concluded on account of the closure of the company. The Petitioner did not seek early pension. He also did not ask for a ‘Scheme Certificate’, which is made available to an employee who has put in qualifying service in his first employment and has retired before attaining the age of superannuation at 58 or 60 years, as the case may be. This is provided under the EPS, 1995.
6. What the Petitio
