IMPORTANT POINT
Recovery from the employee is impermissible if it is not due to the fault of the employee but due to the incorrect calculation by the employer.

JUDGMENT :

1. The petitioner has filed the present petition under Article 226 of the Constitution of the India with the following reliefs:-

“(A) Quashing and setting aside the letter dt. 10.1.2012/11.1.2012 ordering recovery from the pension of the petitioner and directing the respondents to refund the amount already recovered from the pension of petitioner.

(B) During the pendency and final disposal of this petition, respondent No.3 may be restrained from deducting any amount from the pension of the petitioner for the amount of February 2012 onwards.

(C) To grant such and further relief as may be deemed fit and proper.”

2. Facts of the present petition in nutshell are that the petitioner was appointed as Assistant Teacher with effect from 06.01.1987 and he was retired voluntarily on 30.11.2007. It is the case of the petitioner that he started getting pension on the basis of 26 years service i.e. 21 years pensionable service plus 5 years notional service in case of voluntary retirement and after more than 4 years of his retirement, respondent No.3 wrote a letter to the petitioner informing him that five notional years were to be added for pensionable service, but the pension was not to be fixed by adding five increments. It is also the case of the petitioner that he was called upon to deposit Rs.1,42,494/- which was paid as an excess amount of pension and, thereafter, the petitioner wrote a letter to respondent No.3 and pointed out that the administration had committed mistake in giving five notional increments and for the same, he was not responsible. It is also the case of the petitioner that an installment of Rs.4019/- has been deducted from the pension of the petitioner for the month of January 2012 and again he requested respondent No.3 not to deduct any amount from pension and no order for deduction of installment was received by him and yet the amount was deducted. It is the case of the petitioner that in connection with the letter dated 08.02.2012, respondent No.3 conveyed the details of recovery of the petitioner.

3. Being aggrieved and dissatisfied with the impugned action on the part of the respondents, the petitioner has preferred the present petition.

4. Heard Mr.Vedant Rajguru, learned counsel appearing for the petitioner and Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondent – State Authorities.

5. Mr.Rajguru, learned counsel appearing for Mr.A. J. Yagnik, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the petitioner was appointed as assistant teacher in 1987 and he has taken voluntary retirement with effect from 30.11.2007. He has submitted that the respondent – authority has asked the petitioner to give an undertaking for preparing the pension papers and he has given the same and on the basis of the undertaking, the respondent – authority has sought to deduct an amount of Rs.1,42,494/- from the retiral benefits which is accrued due and payable to the petitioner and that recovery was made after 2007. He has submitted that in 2012, the petitioner had preferred an application contending that the so-called excess amount was paid to the petitioner was a mistake on the part fo administration. He has submitted that the correspondence took place between the petitioner and the respondent – authority upto 2015 and ultimately in 2015, the petitioner again preferred an application requesting that whatever amount which is due and recoverable the same be recovered and remaining amount be paid to him and fixed the pension. He has submitted that such request of the petitioner was turned down and recovery was effected from 2007 and, therefore, the action on the part of the respondent – authority is unjust and illegal and the amount which is deducted requires to be paid to the petitioner.

5.1 In support of his submission, Mr.Rajguru, learned counsel appearing for the petitioner has relied upon the following decisions.

(1)