Dev Raj Vs Hrtc

For the petitioner: Ms. Sunita Sharma, Senior Advocate with Mr. Dhananjay Sharma, Mr. Rahul and Ms. Sugandh Verma, Advocates. For the respondents: Mr. B.N. Sharma and Ms. Mamta K. Bhatwan, Advocates.

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Ranjan Sharma, Judge [Oral]

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Petitioner-Dev Raj, a retired Yardmaster, from the service of Respondent-Corporation, has come up before this Court, seeking the following

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reliefs:-

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“i) To quash the order of the authority where by some recoveries were done from the pensionary benefits, without giving opportunity of hearing to the petitioner vide Annexure P-5.

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ii) That the respondent corporation may further be directed to grant the benefits of time bound promotional scale [3 ACP’s after completion of his 8, 16 and 24 service] as and when due to the petitioner in accordance with scheme

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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the with all consequential benefits and pay be fixed accordingly.

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iii). To grant the petitioner interest on delayed payments and also refund the Rs. 9 thousand with interest, which has been recovered from the pensionary benefit without informing the petitioner.

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(iv). To re-regulate the pay of the petitioner after setting aside the penalties which were imposed upon the petitioner without giving show cause notice/without holding inquiries that to after retirement. That the respondents may very kindly be directed to produce the entire record pertaining to the case of the petitioner for the kind perusal of this Hon’ble Court.

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(v). That the respondent No.1 may be directed to decide the representation of the petitioner dated 23.12.2012, Annexure P-7, in a time bound manner.”

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2. At the very outset, Learned Senior Counsel,

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on Instructions of the petitioner, who is present in Court states that she does not intent to assail prayer (ii) whereby, the ACP benefits on completion of 8, 16 and 24 years of service were released to the petitioner in one go on 23.11.2007, [Annexure P-2] in view of the stand in reply-affidavit that these benefits were not released earlier due to pendency of disciplinary proceedings and the penalties imposed thereon and due to currency-operation of penalties and after the culmination of these penalties, the

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ACP benefits were released to the petitioner on 23.11.2007, [Annexure P-2].

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FACTUAL MATRIX:

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3. Grievance of the petitioner is that he

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was engaged as Driver, on daily wage basis, in the Respondent-Corporation in the year 1977. He

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was regularized as a Driver on 01.06.1978. It is averred that though he completed 8 years of service

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as Driver on 01.06.1986 and had completed 16 years of service on 01.06.1996 and had completed 24 years of service as a Driver on 01.06.2004 and on completion of 8, 16 and 24 years of service

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the ACP benefits become due but these benefits were given belatedly to the petitioner, in one go, on 23.11.2007, [Annexure P-2]. However , in terms of the Statement made by Learned Senior Counsel, on instructions of the petitioner, who is present in Court, the prayer of the petitioner for ACP from earlier due date(s) is not pressed, in these proceedings. 3(i). Another grievance is that the petitioner was promoted from the post of Driver to the post of Yard Master on 01.02.2008. Upon promotion as

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Yard Master, the petitioner joined on 14.02.2008 and in terms of pay fixation rules, the petitioner opted for pay fixation after receiving the annual increments in lower post of Driver and thereafter to get the promotional increment as Yard Master. Based on such option, the Regional Manager of Corporation at Shimla fixed the pay of petitioner, on promotion, as Yard Master at Rs. 18,950/- w.e.f. 01.12.2008, in terms of the Order dated 31.12.2009, [Annexure P-3]. Based on aforesaid pay fixation, the petitioner was granted annual increments due therefrom and the petitioner retired from service as Yard Master on 31.03.2011. After superannuation, the Regional Manager of Corporation issued an order on 11.07.2011, [Annexure P-4] reducing the basic pay of petitioner as Yard Master from Rs 18,950/as on 01.12.2008 to Rs 18,550/-. It is averred that based on such reduced basic pay, Leave Encashment of Rs. 2,74,609/- and DCRG of Rs.4,71,075/- has been released in October, 2011. Even, the pension was reduced and an amount of Rs. 9000/-was recovered therefrom. The retiral benefits were released

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belatedly without any fault attributable to Order of reduction dated 11.07.2011, [Annexure P-4], reducing basic pay retrospectively w.e.f. 01.12.2008 has been assailed by the petitioner in the instant proceedings. Petitioner submitted a representation on 14.11.2011 for re-fixing his pay but, the was turned down by Regional Manager, Rural Unit Dhalli, Shimla on 13.03.2012, [Annexure P-5], on the ground that the pay fixation order dated 11.07.2011 [Annexure P-4] was issued reducing the basic pay in view of the fact that the Corporation issued any order of penalty on 05.02.1982, which was not given effect to by Regional Manager Hamirpur,

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at the relevant time and in order to give effect to the aforesaid order passed in 1982, the basic pay of the petitioner was reduced. The petitioner has prayed for re-fixation of pay after setting aside of the order dated 11.07.2011 [Annexure P-4] reducing the basic pay retrospectively and in passing the rejection orders dated 13.03.2012 [Annexure P-5], the instant proceedings.

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ERRONEOUS REPLY AFFIDAVIT -WITHDRAWN:

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4. Pursuant to issuance of notice, the Respondent-Corporation is stated to have filed a reply, in the case of one Sh. Dev Raj S/o late Sh. Raghunandan, who is another incumbent. The aforesaid reply does not relate to the petitioner and in view of the prayer made by Learned Counsel

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for Corporation, the aforesaid reply was permitted to be withdrawn, in terms of orders dated 27.11.2021, passed by this Court.

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STAND OF CORPORATION IN REPLY-AFFIDAVIT IN INSTANT CASE :

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4(i). In the instant case, Respondents No. 1

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and 2 have filed Reply-Affidavit of Divisional Manager [Legal] of Corporation, Shimla dated 23.12.2021.

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4(ii). Perusal of Para 3 of Reply-Affidavit indicates

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that ACP benefits due on completion of 8, 16 and 24 years of continuous service was allowed to the petitioner on recommendations of Departmental Promotion Committee meeting held on 23.11.2007. Reply-Affidavit indicates that prior to 23.11.2007, the departmental proceedings and penalties were in operation against the petitioner. It is further

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averred that for the purposes of grant of ACP, the norms which are followable for promotion are to apply. In these circumstances, Reply-Affidavit indicates that once departmental proceedings were pending and the penalty was in operation against the petitioner up to the year 2007, therefore, it is only after cessation of departmental proceedings and culmination

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of the earlier penalties, the ACP benefits due on completion of 8, 16 and 24 years of service were released to the petitioner on the recommendations of Departmental Promotion Committee 23.11.2007.

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Learned Senior Counsel for the petitioner further states that the penalties imposed against the petitioner including the last penalty of reduction of pay scale for 2 years w.e.f. 09.02.2004 was over on 09.02.2006. Reply-Affidavit indicates that based on

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the Disciplinary Proceedings and the penalties which were operative earlier, the overall service records were adjudged to be not good and, therefore, the ACP benefits were not released to the petitioner earlier. However, after the effect of the penalties was over, the DPC was convened on 23.11.2007

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and the ACP benefits were released to the petitioner in accordance with law.

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4(iii). Para 6 of the Reply-Affidavit indicates that another penalty order was passed on 05.02.1982 but since the aforesaid penalty order was not given effect to earlier, therefore, the same was decided to be given effect to by re-fixing the pay after superannuation of the petitioner on 31.03.2011. In this backdrop, a prayer has been made for dismissal of the writ petition.

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REBUTTAL BY PETITIONER :

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5. Petitioner filed a rejoinder with a specific

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stand that even if a penalty was imposed against the petitioner on 05.02.1982 regarding stoppage of one increment for a period of six months vide order dated 05.02.1982, then, the aforesaid order of stoppage of increments for six months, could not have been given effect to by the respondents, after superannuation of the petitioner on 31.03.2011. It is further averred that the action of RespondentCorporation in giving effect to the penalty order dated 05.02.1982 after his superannuation in 2011,

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cannot be the ground to refix and reduce the basic pay of the petitioner, on the promotional post of Yard Master, so as to reduce the basic pay from Rs.18,950/- to Rs.18,550/- w.e.f. 01/14.02.2008 as in Annexure P-3 and Annexure P-4 , retrospectively, when, such reduction has visited the petitioner with civil consequences. Moreover, once the petitioner

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has attained the status of a pensioner then, in such an event, the re-fixation of pay has resulted in reduction in pension and in giving less retiral benefits i.e. Leave Encashment and DCRG in the month of October 2011.

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6. Heard, Ms. Sunita Sharma, Learned Senior Counsel assisted by Mr. Dhananjay Sharma, Advocate, for the petitioner and Mr. B.N. Sharma, Advocate, for Respondent-Corporation.

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ANALYSIS:

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7. Taking into account the entirety of facts

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and circumstances, this Court is of the considered opinion that the Impugned Order dated 11.07.2011 [Annexure P-4] reducing the basic pay of petitioner as Yard Master from Rs. 18,950/- to Rs 18,550/-

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w.e.f. 01/14.02.2008 does not satisfy the test of

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judicial scrutiny, for the following reasons :-

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7(i). Petitioner joined service as a Driver on

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daily wage basis in the year 1977 and his services were regularized on 01.06.1978. The petitioner was granted the ACP benefits, which were due to him on completion of 8, 16 and 24 years of service after culmination of departmental proceedings and the effect of penalties imposed in terms of Order dated 26.12.2009 w.e.f. 23.11.2007. After grant

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of ACP benefits w.e.f. 23.11.2007, the petitioner was promoted as Yard Master on 01/14.2.2008. After promotion as Yard Master, the pay was fixed, on promotion after availing annual increment in lower post and promotional increment thereafter as per Office Order on 31.12.2009, [Annexure P-3] whereby, the pay of the petitioner as a Yard Master was fixed on promotion at Rs 18950/- w.e.f. 01.12.2008. Based on this basic pay of Rs 18950/-

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as on 1/14.12.2008 in the Order dated 31.12.2009 [Annexure P-3], the Respondents granted the annual increments and he superannuated from service

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on 31.3.2011. After superannuation on 31.03.2011, the Respondents-Corporation issued another order on 11.07.2011, [Annexure P-4] reducing the basic pay as Yard Master, on promotion from Rs 18,950/to Rs 18550/- w.e.f. 01.12.2008 illegally.

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REDUCTION IN BASIC PAY :

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7(ii). The order dated 11.07.2011, [Annexure P-4], reducing the basic pay of petitioner, on promotion as Yardmaster from Rs.18,950/- to Rs.18,550/- w.e.f. 01.12.1998 was admittedly issued without giving prior notice, without giving personal hearing, without seeking explanation from the petitioner and such an order has certainly visited the petitioner with civil consequences.

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7(ii-a). The Hon’ble Supreme Court quashed the reduction in basic pay without giving an opportunity of hearing to an employee, in AIR 1974 Supreme Court 1889 , titled as Divisional Superintendent, Eastern Railway Dinapur and others, versus L.N. Kashri and others, in following terms:-

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“6. The respondents were confirmed the scale of Rs.110-180. The appellants having fixed the scale and confirmed the respondents could not reduce the

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scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board.”

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7(ii-b). While dealing with an identical issue in 2024 SCC Online SC 1909 , titled as Jagdish

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Prasad Singh versus State of Bihar and Others , the Hon’ble Supreme Court has outlined that after superannuation, the basic pay could not be reduced and even recovery cannot be affected without complying with the principles of natural justice and the adversial order suffers from vice of non-adherence to the principle of natural justice, in the following terms:

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“5. The appellant superannuated from the post of ADSO on 31st January, 2001. At the time of retirement, the last pay drawn by the appellant was Rs.10500 in the pay scale of Rs. 6500-10500 with admissible emoluments. As per the Bihar Pension Rules of 1950, his pension was calculated at 50% of the average emoluments and was quantified at Rs.5247 per month. Accordingly, the pension as above was disbursed to the appellant from the date of his retirement.

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It seems that the Accountant General, State of Bihar, raised an objection dated 28th January, 2003, regarding the promotion accorded to the

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appellant on 10th March, 1991 with a further remark that the promotion given to the appellant on 10th March, 1991 would become ineffective after 1st January, 1996 in view of the Government Resolution dated 8th February, 1999 and, thus, the pay scale of the appellant would have to be revised and reduced to match that of the lower post, i.e., the Marketing Officer .

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At the outset, we may note that the fact regarding the appellant having been accorded time bound promotion from the post of Marketing Officer in Junior Selection Grade to Senior Selection Grade, Marketing Officer-cumAssistant District Supply Officer (ADSO) as per his entitlement on 10th March 1991 is not in dispute. It is not the case of the respondents that the said promotion suffered from any irregularity or was given against the rules and regulations. The Resolution dated 19th January, 1991 placed on record as Annexure P-1 indicates that the next promotional channel from the post of the Lower Senior Grade (Marketing Officer) was to the post of Upper Senior Grade(Upper Marketing Officer). Earlier, the pay scale for the post of Lower Senior Grade (Marketing Officer) was fixed at Rs.1800- 3330 whereas for the promotional post i.e. Upper Senior Grade(Marketing Officer), the applicable pay scale was fixed at Rs. 2000-3800. The appellant having been duly promoted to the post of Upper Senior Grade(Upper Marketing Officer) w.e.f. 10th March, 1991 was entitled to and was rightly given the pay scale of the promotional post. Pursuant to the 5th Pay Commission being applied,

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the Government of Bihar issued a Resolution dated 8th February, 1999, whereby the pay scale applicable to the post of Upper Senior Grade (Upper Marketing Officer) was revised from Rs.2000-3800 to Rs.6500-10500. The paragraph 11 (supra) of the said Government Resolution specifically protects the promotions granted to the employees prior to 31st December, 1995. Only those employees who were not promoted by the cut-off date, i.e., 31st December, 1995 would get a notional promotion and consequent rise in pay scale which would come to an end w.e.f. 31st December, 1995.

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Apparently thus, the appellant could not have been put to a disadvantage and his pay scale could not have been reduced prospectively by virtue of the said Resolution. Even if paragraph 11(supra) was not in existence, the appellant could not have been subjected to eight years after his retirement because there was no illegality in conferment of the revised pay scale to the appellant which was an action taken by the State Government as per the applicable rules and regulations.

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The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he had been promoted as an ADSO, while drawing

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the pay scale of Rs.6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained.”

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That being so, the Impugned Order dated 11.07.2011, [Annexure P-4], reducing the basic pay w.e.f. 01.12.2008 retrospectively had visited the petitioner with civil consequences, which not be so done, by giving a complete go-bye to the principles of natural justice and the law. These facts are sufficient to interdict the Impugned Orders dated 11.07.2011, [Annexure P-4] reducing the basic pay of the petitioner on the promotional post of Yard Master retrospectively.

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DOWNGRADING AND LOWERING BASIC PAY IS PUNITIVE:

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7(iii). Instant case needs to be tested from another angle also. On promotion as Yardmaster, once the basic pay of the petitioner was fixed at Rs 18950/-w.e.f. 01.02.2008, in terms of order

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dated 31.12.2009, [Annexure P-3] then, the said basic pay could not be reduced to Rs 18,550/-on 11.07.2011, [Annexure P-4] for the reason, reducing or lowering or downgrading stages of pay amounts to imposing a major penalty on petitioner, in terms of Rule 11(v) & (vi) of CCS [CCA] Rules . Reduction to a lower stage in time scale of pay, grade or post could not have been given effect too, without giving a prior notice and without complying with procedural safeguards in Rule 14 of the CCS [CCA] Rules, which has not been complied with in instant case. Reduction or downgrading or lowering the stages of basic pay in time-scale tantamount to imposing penalty

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and such reduction cannot be imposed by giving a complete go-bye to mandatory statutory and therefore, the non-compliance and infraction of statutory Rules is sufficient to interdict

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orders dated 11.07.2011, [Annexure P-4].

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EARLIER PENALITY OF 1982 CANNOT BE SOUGHT TO BE ENFORCED AFTER 28 YEARS AGAINST PETITIONER-RETIREE:

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the rejection order dated 13.03.2012, [Annexure P-5], the stand of Respondent-Corporation is that the basic pay as Yardmaster has been reduced just to give effect to an earlier penalty order dated 05.02.1982, passed by Regional Manager of Corporation at Hamirpur but which was not given effect too earlier.

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Perusal of the records including the original service book as produced before this today, reveals that in terms of orders dated 05.02.1982, even though one annual increment was stopped for a period of six months and this order of 1982 ought to have culminated and put to an end in the year 1982 itself. The Respondents could not implement the orders passed in 1982 after the superannuation of the petitioner on 31.03.2011 so as to result in reducing the basic pay from Rs. 18,950/- to Rs.18,550/- on 11.07.2011, [Annexure P- 4] . The inaction or lethargy of Corporation and

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its officials, in sleeping over the order of penalty passed in 1982 on 05.02.1982 till superannuation on 31.03.2011 and in waking up from slumber

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after superannuation on 11.07.2011, [Annexure P-4]

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cannot be made the basis for reducing the basic pay after about 28-29 years, at a highly belated stage. Further, once the passing of the orders of penalty of 1982 was in the knowledge of the Respondents but the officials concerned acquiesced in their act and conduct, in sleeping over the matter, by not giving effect to the orders passed in the year 1982 itself or within a reasonable period thereafter then, such an order cannot be permitted to be re-invoked/reinforced or implemented to the prejudice of the petitioner after 28-29 years. The principle of acquiescence and waiver disentitles the respondents to seek implementation of penalty order of 1982 by putting the petitioner to a disadvantageous position, leads to hardships and is iniquitous and arbitrary after 28-29 years, in view of the mandate of the Hon’ble Supreme Court in Union of India and others versus N. Murugesan and others (2022) 2 SCC 25 , in the following terms:-

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“25. A defence of laches can only be allowed

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when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence.

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ACQUIESCENCE :

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We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance , therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place . As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the

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compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches . Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis.

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APPROBATE AND REPROBATE :

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These phrases are borrowed from the Scott’s law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle . It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge

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while confirming an offer through his acceptance unconditionally.

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CURTAILING LEGAL ENTITLEMENT OF PENSION IMPERMISSIBLE :

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7(v). Action of the Respondents in reducing

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the basic pay on 11.07.2011 [Annexure P-4] as a Yardmaster after his retirement on 31.03.2011 w.e.f. 01.02.2008 has resulted in giving less pension due to reduction or downgrading the basic pay from Rs. 18950/- as on 1/12.01.2008, which had reached Rs.20,110/- as on 1.12.2010 [as in Part A at Page 13 of paper book], to Rs.18,550/- as on 1/14.02.2008 and Rs.19,690/as on 01.12.2010 [Part B at page 13]. The Respondents have given pension and retiral benefits of Gratuity and Leave Encashment on such reduced pension. Notably, once petitioner had attained the status of a pensioner on 31.03.2011 and neither any departmental nor any criminal proceedings were pending on the date of retirement then, reduction in basic pay after retirement

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[as in order dated 11.07.2011, Annexure P-4] and based on reduced pay, the grant of less pension and less gratuity without complying with Rule 9

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of the CCS [Pension] Rules cannot stand the test of judicial scrutiny. Likewise, the grant of Leave Encashment in violation of Rule 39(3) of CCS [Pension] Rules, as applicable also cannot sustain. The petitioner had a right to receive the retiral benefits including pension and Gratuity and Leave Encashment on such basic pay. The adversial order has resulted in depriving the petitioner of his right to receive higher pension and retiral benefits due, in accordance with Rules. The Hon’ble Supreme Court in 2025 SCC Online SC 1442 in Civil Appeal No.9496 of 2025, [arising out of SLP(C) No.18606 of 2025] titled Kumar versus Central Bank of India & Ors . has outlined that the pension is not a discretion of the employer but a valuable right to property which cannot be curtailed or denied without any authority of law. Discretion to grant pension at reduced rate cannot be resorted to without following the due process of law as well as the procedural safeguards, in the following terms:

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“17. There is no cavil that pension is not

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a discretion of the employer but a valuable right to property and can be denied only through authority of law . When an authority is vested with the discretion to grant pension less than full pension admissible under the Pension Regulations, all procedural safeguards in favour of the employee including prior consultation must be strictly followed .”

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REFIXATION OF PENSION UNTENABLE:

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7(vi). Perusal of Rule 70 of the CCS (Pension)

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Rules provides that the pension cannot be reduced /refixed except in case of clerical error. In the instant case, the reduction in pension is not relatable to any clerical error, but such reduction is an off-shot of the lethargy and inaction of the Respondent-Corporation in not giving effect to the order of penalty imposed in 1982, which is now sought to be implemented, after a gap of about 28-29 years. In these circumstances, once based on higher basic pay, the petitioner is entitled for pension then, the denial of rightful entitlement for pension, on the basis of last pay drawn, cannot be denied and taken away without authority of law as in this case. Accordingly, the reduction in basic pay, leading to grant less pension and less

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retiral benefit(s) cannot stand the test of judicial scrutiny and deprivation and curtailment of pension and other retiral benefits, without complying with the statutory safeguards in Rule 9 of the CCS (Pension) Rules and Rule 39(3) of the CCS (Leave) Rules. The infraction and non-compliance of these statutory safeguards, reveals inherent violation of Article 300-A, resulting in depriving the petitioner of his legal entitlements of pension and other retiral benefits without any authority of law. Accordingly, the prejudicial Impugned Orders are quashed and set-aside.

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RECOVERY FROM CLASS-III EMPLOYEE AFTER SUPERANNUATION IMPERMISSIBLE :

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7(vii). Learned Senior Counsel states that an amount of Rs. 9000/- was deducted by RespondentCorporation from the pensionary benefits in view of averments in Para 7 and 11(e) of writ petition. In Reply-Affidavit, the Respondent-Corporation has not denied the factum of alleged recovery having been made from the petitioner.

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In these circumstances, the recovery of Rs. 9000/-, could not have been affected from the

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petitioner without complying with the principles of natural justice, i.e. without issuing a prior notice, without affording a personal hearing and without complying with Rule 9 of the CCS [Pension] Rules and Rule 39 of CCS (Leaves) Rules. Moreover, the recovery from retiral benefits could only be affected, in case, any departmental or criminal proceedings were pending on the date of retirement against an employee. No such eventualities exist in instant case. Further, it is not the case of the Corporation that alleged recovery of Rs 9000/-was attributable to any misrepresentation or fraud by the petitioner. Inabsence of any established misrepresentation or fraud, the alleged recovery from the petitioner, who is a Class-III Employee {retired Yardmaster} is not sustainable.

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7(vii-a). In terms of the mandate of law of the Hon’ble Supreme Court in State of Punjab and Others versus Rafiq Masih, 2015 (4) SCC 334, prohibits recovery from employee in the following terms :-

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(i) Recovery from employees belonging

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to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

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7(vii-b). In a similar fact-situation, recovery after superannuation was quashed by the Hon’ble Supreme Court in 2025 SCC Online SC 724 , titled as Jogeswar Sahoo and Others versus District Judge, Cuttack and Others , in the following terms:

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“9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that

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¶168

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such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.

¶170

In Col. B.J. Akkara (Retd.) v. Government of India this Court considered an identical question as under:

¶171

“27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation / understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):

¶172

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

¶173

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/ allowance or on the basis of a particular interpretation of rule/ order, which is subsequently

¶174

( 2025:HHC:35175 )

¶175

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found to be erroneous.

¶177

Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf . But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

¶178

On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue

¶179

( 2025:HHC:35175 )

¶180

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¶181

hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.”

¶182

7(vii-c). In 2025 SCC Online SC 2042 , titled Panchayat & Rural Development Department and others versus Santosh Kumar Shrivastava , the

¶183

Hon’ble Supreme Court has interdicted the similar recovery made from retiral benefits without resorting to the procedural safeguards [without giving prior notice, without affording a personal hearing and by resorting to re-fixation of pension etc. after retirement] in the following terms:

¶184

( 2025:HHC:35175 )

¶185

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not a matter of bounty but in fact a matter of right of every employee, should there be some rule or statute from where the right may originate. [See: PEPSU RTC v. Mangal Singh and U.P. Roadways Retired Officials & Officers Assn. v. State of U.P.]

¶187

This makes it clear that the Courts below were correct in holding that there was no justification for the appellants having not paid the dues rightly belonging to the respondent to him even after the passage of almost three years after the retirement. We may also observe that there was no occasion whatsoever for the Appellant to have conducted re-fixation of pay after retirement of the Respondent and then proceed to recover the excess amount from the retiral dues payable to the latter .

¶188

In essence, what the Appellants did before the High Court was to blame the Respondent for the delay in him receiving benefits rightly owed to him. We cannot accept this position. Pension and other retiral dues are benefits that have been earned by an employee due to the service rendered to the institution paying the pension/other retirement benefits . The grant of a residence corresponds to the position held at the time by such employee. The width of these two aspects is separate and distinct. Pension and retirement benefits accrue from a much wider base as the culmination of all efforts, across employment whereas the latter is only for a limited time, till such a person is holding that position. The latter cannot obstruct or defeat the former. The Appellant cannot be allowed to withhold a

¶189

( 2025:HHC:35175 )

¶190

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¶191

duly accrued right on this count .

¶192

In above backdrop, the Impugned Order dated 11.07.2011 [Annexure P-4] ordering recovery against the petitioner cannot be permitted, in view of the fact that the amount which is sought to be recovered was neither relatable to any misrepresentation on the part of the petitioner nor the aforesaid payment based on a wrong disbursement of amount, which was spent or was an amount which was not liable to be spent as per Rule/Order. In these circumstances, impugned recovery, against the petitioner is not sustainable, as the aforesaid order shall lead to hardship and that too without the aforesaid allegation attributable to

¶193

recovery to have been shifted against the petitioner

¶194

after following due process of law in the departmental proceedings and that too when aforesaid recovery was ordered without affording an opportunity to the petitioner, which was not initiated by the respondents.

¶195

8. No other point was argued/pressed.

¶196

DIRECTIONS:

¶197

( 2025:HHC:35175 )

¶198

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9. In view of the above discussion and for

¶200

the reasons recorded hereinabove, the present petition is allowed, in the following terms :

¶201

“(i) Rejection orders dated 13.03.2012 [Annexure P-5] is quashed and set aside;

¶202

(ii). Order dated 11.07.2011, [Annexure P-4] reducing basic pay of the petitioner on promotional post of Yardmaster from Rs 18950/- w.e.f. 1/14.02.2008 is quashed and set-aside;

¶203

(iii) Respondent-Corporation is directed to restore basic pay as Yardmaster at Rs. 18950/from 1/14.02.2008 in terms of pay fixation orders dated 31.12.2009 [Annexure P-3] or such like orders and grant annual increments till retirement on 31.03.2011; and to release revised retiral benefits, including revised pension w.e.f. 01.04.2011 with all consequential benefits on or before 15.12.2025;

¶204

(iv). Respondents are restrained from giving effect to penalty order dated 05.02.1982 after about 28-29 years hereinafter;

¶205

(v). Based on Statement made by Learned Senior Counsel, on instructions, the release of the ACP benefits in 2007 is upheld;

¶206

(vi). Recovery of Rs 9000/from retiral benefits is quashed and set-aside and

¶207

( 2025:HHC:35175 )

¶208

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Respondents shall refund the amount of Rs 9000/- within above period ;

¶210

(vii) Failure to release benefits as in direction no (ii) above, shall entitle petitioner for interest @ 6% per annum w.e.f. 5.12.2025 till realization.

¶211

(viii). Parties to bear respective costs.

¶212

In aforesaid terms, the instant petition is allowed and pending miscellaneous application(s), if any, shall accordingly stand disposed of.

¶213

(Ranjan Sharma) Judge

¶214

9^th October, 2025 [himani]

Dev Raj v. Hrtc

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Dev Raj v. Hrtc

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