Case Title: Sonam Dolma Vs Bharat Sanchar Nigam Limited & Ors.
A split bench of the J&K&L High Court decided today that there can be no recovery of any kind from the petitioner's retirement benefit, or, for that matter, her promotion cannot be rescinded in the absence of any deception on her behalf regarding the factum of obtaining her promotion. Justices Tashi Rabstan and Wasim Sadiq Nargal made up a bench that made the observation:
"By no stretch of the imagination, consequential benefits can be taken at this belated stage, when she is drawing the pension after retirement:"
The petitioner was contesting a notice sent to her by the Respondent-BSNL, in which she was required to provide justification for her elevation to the position of Jr. Accounts Officer's decision from December 16, 2013, which cannot be reversed. The petitioner argued, among other things, that the impugned show-cause notice could not possibly stand in the eyes of the law because she had chosen the Voluntary Retirement Scheme back in 2019 and that her pension had been determined using the last pay she had received—that of an Accounts Officer—in accordance with the Pension Payment Order.
The bench noted that although a show cause notice was issued on February 5, 2018, with a view to rescinding the petitioner's promotion to the grade of Junior Accounts Officer, which was given on December 16, 2013, the petitioner's subsequent promotion to the grade of Accounts Officer on June 29, 2018, by the respondents has not been explained, nor have the respondents been able to defend their position.
"We fail to understand that, once the show cause notice has been issued with regard to her promotion as Junior Accounts Officer, then subsequently how and under what circumstances, she was promoted in the grade of Accounts Officer, that too, pursuant to the approval of the competent authority." the bench noted.
In deciding the case, the bench made a further observation: excess payments of emoluments or allowances are not recoverable later after retirement if they were made without any employee fraud or misrepresentation and instead as a result of the application of an incorrect principle or interpretation of a rule or order that was later determined to be incorrect.
The panel further decided that it was important to document the Supreme Court's views in Sahib Ram v. State of Haryana and Others, where the SC made such observations while preventing such recovery.
"The appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant".
The bench continued to discuss the issue and noted that because pensioners are in a worse position than in-service employees, they can request a directive that wrong payments not be recovered and any attempt to recover an excess wrong payment would put them through undue hardship. The bench granted the writ petition and invalidated the contested show cause notice in light of the legal situation stated above.