Cannot Recover 'Excess Retiral Benefits' After Allowing Officer To Continue Beyond Retirement Date: Bombay High Court

The Bombay High Court in a recent order granted relief to a retired medical officer of Thane Municipal Corporation (TMC) whose pension and gratuity was reduced by the local body after a government clarification said only public health department doctors were to be given extension of two years in service beyond the date of retirement."The petitioner having worked sincerely and without blemish for over 25 years and more particularly rendered active service as a medical officer during the extended period of service between 58 and 60 years of age, any attempt to recover any sum from the petitioner's retiral benefits on the ground of mistake arising out of misreading of the said Government Resolution would be most unfair and irrational", the court observed. The division bench of Chief Justice Dipankar Datta and Justice Madhav J. Jamdar passed the decision in a writ petition challenging reduction in pension and gratuity and recovery of excess payment from his retiral benefits. The petitioner was supposed to retire at age 58 on December 31, 2016. Due to a Government Resolution (GR) dated September 3, 2015, the TMC permitted him to continue service till December 31, 2018, the day he attained 60 years of age. He retired with his last drawn pay being Rs 28600 per month on the basis of which his pension and gratuity were fixed. However, the state government in 2020 clarified that the 2015 GR was applicable to officers in public health department and not in Municipal Corporations or Councils. The clarification was applied to the petitioner's case, forcing him to approach the court.The court observed that the petitioner did not seek an increase in his retirement age from 58 years to 60 years. There was no misrepresentation on the petitioner's part and it was the TMC that permitted him to continue his service for two extra years., noted the court. Observing that it is not a case where the pay was erroneously fixed and he received more than entitlement, the court said the petitioner served on this post during the extended period and earned his salary."If at all there has been any mistake, such mistake is because of a misreading of the Government Resolution dated 3rd September 2015 by the TMC and the blame therefor must squarely fall on the TMC", the court said.The court also said not only would the process of recovery "be iniquitous and harsh" to the petitioner, such process would far outweigh the equitable balance of the TMC's right to recover any amount allegedly paid in excess. A case of excess payment due to erroneous fixation of pay cannot be equated with the current case where the petitioner's pension and gratuity have been fixed considering the length and unblemished record of his service, the court ruled. The court said that the amount of petitioner's pension and gratuity cannot be reduced. Further, no money should be recovered from his gratuity. The additional two years shall be reckoned as part of the total service of the petitioner. The court directed the TMC to refund any amount recovered from the petitioner. The court also restrained the TMC from recovering any further amount from the petitioner's pension. Case no. – Writ Petition No. 6004 of 2021 Case title – Dr. Prakash Borulkar v. State of Maharashtra and Ors.Citation: 2022 LiveLaw (Bom) 351 Click Here To Read/Download Order

Cannot Recover 'Excess Retiral Benefits' After Allowing Officer To Continue Beyond Retirement Date: Bombay High Court

Amisha Shrivastava

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