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2022 Supreme(Online)(Guj) 7951
HIGH COURT OF GUJARAT
BIREN VAISHNAV, J
KAMALSINH CHHAGANBHAI MUNIA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 7110 of 2019
For the Appellants/Petitioners: MR GUNVANT R THAKAR, MS BHARGAVI G THAKAR
For the Respondents: MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER
Legally impermissible to initiate recovery actions based on delays exceeding reasonable timeframes after retirement.
Headnote:The petition challenges the recovery action initiated after the petitioner's superannuation, citing authority beyond lawful jurisdiction. The court confirmed that recovery post a significant delay is impermissible, referencing prior judgments which emphasize the requirement for timely correction of mistakes. Thus, the court found for the petitioner, quashing the recovery actions but leaving pension refixation intact.
| Table of Content |
|---|
| 1. recovery actions post-retirement must adhere to lawful authority and reasonableness. (Para 2 , 3) |
| 2. delays in rectifying mistakes challenge legal authority, affecting the validity of recovery. (Para 4 , 5) |
| 3. court's ruling allows petition while quashing the recovery orders. (Para 6) |
ORDER
1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned AGP waives service of notice of rule on behalf of respondent State. With the consent of the learned advocates for the respective parties, matter is taken up for final hearing today.
2. By this petition, the prayer of the petitioner is that the action of recovery initiated by the communications dated 02.08.2018 and 05.09.2018 is bad.
3. Shortly stated the facts indicate that the petitioner joined the department as an Assistant (Legal) on 05.09.1979. He retired on superannuation on 30.06.2005 having rendered service of 29 years 4 months and 25 days. Recovery was initiated from his pension after 12 years and 11 months.
4. That itself is a recovery beyond the authority of law in light of the decision in the case of State of Punjab Vs. Rafiq Masih , AIR 2015 SC 696. Even otherwise as held by the Apex Court in the case of Bharat Sanchar Nigam Limited vs. BPL Mobile Cellular Ltd. reported in (2008) 13 SCC 597, when a mistake is not rectified for a long period, the same, in law, may not be treated to be one. The Apex Court therein has held as under:
- “32. Indisputably, mistakes can be rectified. Mistake may occur in entering into a contract.
- In the latter case, the mistake must be made known. If by reason of a rectification of mistake, except in some exceptional cases, as for example, where it is apparent on the face of the record, mistake cannot be rectified unilaterally. The parties who that would suffer civil consequences by reason of such act of rectification of mistake must be given due notice. Principles of natural justice are required to be complied with. The fact that there was no mistake apparent on the face of the records is borne out by the fact that even the officers wanted clarification from higher officers. The mistake, if any, was sought to be rectified after a long period; at least after a period of three years. When a mistake is not rectified for a long period, the same, in law, may not be treated to be one.”
5. Accordingly, even if it is a mistake it was not open for the authorities to so rectify it after 12 years of the petitioner having superannuated. On this ground alone, the petition deserves to be allowed.
6. Accordingly, petition is allowed. The impugned communications dated 02.08.2018 and 05.09.2018 are hereby quashed and set aside. The refixation of pension is however not interfered with. Rule is made absolute. (BIREN VAISHNAV, J) DIVYA
