Domingos Francisco Gama v. The State of Goa, Thr. Its Chief Secretary and 3 Ors

Order. It was held thus:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that

was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

¶13In State of Punjab v. Rafiq Masih (White Washer) wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be

iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx

¶18It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(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.

(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."

¶11The aforementioned views have been further followed by this Court in Shridhar s/o Baburao Gambhire (supra)

after referring to the facts which are similar to that of the Petitioner's case. The relevant paragraphs are quoted below: "11. In the present case, the petitioner is already retired on

30.11.2005 and the objection was raised on 02.07.2005 just before few months of his retirement and the impugned order was passed on 08.06.2007. During the entire service tenure, no objection was raised by the respondents about the petitioner's qualification and pay scale. There is no allegation of fraud or misrepresentation on the part of the petitioner. In view of the aforesaid factual position and the settled legal principles laid down by the Hon'ble Supreme Court in Rafiq Masih (supra) and Shyam Babu Verma (supra), it is evident that the petitioner was neither guilty of any misrepresentation nor fraud and the alleged excess payment, if any, was made by the respondents themselves during the course of his long service career. The objection regarding pay fixation was raised at the fag end of service and recovery has been sought after the petitioner's retirement, which is clearly impermissible in law

¶12However, it is equally well settled that pension is a statutory right governed by the applicable Pension Rules and the employee cannot claim continuation of an incorrect pay fixation contrary to the applicable statutory provisions. While recovery of the alleged excess amount is impermissible in view of the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih (supra) and Shyam Babu Verma vs. Union of India (supra), the respondents cannot be precluded from regulating and re-fixing the pension of the petitioner in accordance with the applicable Rules. Therefore, though the direction of recovery deserves to be set aside, the respondents would be at liberty to re-fix the pension of the petitioner strictly in accordance with law Such re-fixation, however, shall operate prospectively and no recovery shall be effected in respect of the amounts already paid to the petitioner till date. The impugned order, therefore, suffers from arbitrariness to the extent it directs recovery from the petitioner after his retirement and deserves to be quashed

and set aside to that limited extent. Hence, we pass the following order.- ORDER

(i) The writ petition is partly allowed.

(ii) The impugned order dated 08.06.2007 passed by respondent No.1 is quashed and set aside to the extent it directs recovery of alleged excess payment from the petitioner.

(ii) The respondents are restrained from effecting any recovery from the petitioner in respect of any amount already paid to him during his service tenure or from his pensionary benefits.

(iv) The respondents are at liberty to re-fix the pension of the petitioner strictly in accordance with the applicable Rules and Government Resolutions, if required, within a period of eight weeks from today However, such re-fixation shall operate prospectively and shall not result in recovery of any amount already paid.

(v) No order as to costs."

¶12Considering that the Petitioner had at no point of time given an undertaking to the Department in relation to having to refund any excess payments made and considering that the 1st ACP and 2nd ACP relate back to the year 2005 and 2015 respectively, clearly there would be undue hardship to the Petitioner if he was directed to refund the excess amount payable. Applying the ratio laid down in the Judgments of Rafiq Masih (supra), Shyam Babu Verma and others (supra), Shridhar s/o Baburao Gambhire (supra) and

Thomas Daniel to the facts of the present case, we make Rule absolute in terms of prayer Clause (d) of the petition.

¶13Considering that Respondent No. 4 has already deducted an amount of Rs. 1,96,822/- from the Petitioner's pension, the same shall be forthwith refunded by the Respondent No. 4 to the account of the Petitioner. Considering that the Petitioner retired on 31.10.2022, and would be entitled to his 1st pension by 30.11.2022, though he was actually paid his 1st pension on 29.04.2023, there is a delay in making payment of pension from 30.11.2022 to

29.04.2023. We consequently direct that an amount calculated at 6% per month be paid as interest for the delayed payment of pension between the aforementioned dates.

¶14Rule is made absolute in the above terms. The petition stands disposed of.

AMIT S. JAMSANDEKAR, J. VALMIKI MENEZES, J.

Sonam IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 401 OF 2025 Mr. Domingos Francisco Gama, Age 63 years, Retired Leading Fire Fighter (Directorate of Fire Emergency Services) Resident of House No. 99/A, Ambulor, Verna, Salcete, South Goa. … Petitioner Versus 1. The State of Goa Through its Chief Secretary, Secretariat, Porvorim, Goa. 2. Secretary-Finance, Government of Goa, Secretariat, Porvorim, Goa. 3. Directorate of Accounts, Through Director of Accounts, Government of Goa, Panaji, Goa. 4. The Directorate of Fire and Emergency Services, Through its Director St. Inez, Panaji, Goa. …Respondents 2026:BHC-GOA:2066-DB Mr. Terence B. Sequeira with Mr. Yash Kunde, Advocates for the Petitioner. Mr. Prashil Arolkar, Additional Government Advocate for Respondent Nos. 1 to 4. CORAM : VALMIKI MENEZES & AMIT S. JAMSANDEKAR, JJ. DATED : 12TH OCTOBER, 2026 ORAL JUDGMENT (per Valmiki Menezes, J.): 1. Heard learned Advocates for the parties. 2. Rule. Rule is made returnable forthwith; at the request of and with the consent of learned Advocates for the parties, the matter is finally heard and disposed of. Learned Additional Government Advocate Mr. Prashil Arolkar waives service of notice on behalf of Respondent Nos. 1 to 4. 3. The Petitioner has approached this Court seeking the following reliefs: "a) for Writ of Mandamus or any other appropriate writ, order or direction for quashing and setting aside the Impugned Orders dated 15.11.2022 and corrigendum dated 25.01.2023 bearing DFES/SZ/PF-109/2022-23/2164 changing the date of ACPS-I and Corrigendum dated 25.01.2023 bearing DFES/SZ/PF-109/2022- 23/2165 changing the date of MACP- II, and consequently restoring the 1st Financial up- gradation under ACP Scheme w.e.f. 14.09.2005 and 2nd Financial Upgradation under MACP Scheme w.e.f. 14.09.2013; b) for a Writ of Mandamus, or any other appropriate writ, order or direction, directing the Respondent Authorities to return the amount of Rs. 1,96,822/- along with interest at the rate of 12% from the date of such recovery or at such rate this Hon'ble Court may deem fit.; d) for a Writ of Mandamus, or any other appropriate writ, order or direction, subject to the grant of the above reliefs, directing the Respondent Authorities to send the pension papers to the Directorate of Accounts so that the pension and other pensionary along with other consequential benefits be re- calculated taking into consideration the original pay fixations and increments which were granted to the Petitioner prior to the Impugned order dated 15.11.2022 and corrigendum dated 25.01.2023 changing the date of ACPS-I and Corrigendum dated 25.01.2023 changing the date of MACP- II, and grant all consequential increments and benefits; e) for a writ of mandamus or any other writ, direction or order in the nature of mandamus, directing the Respondent Authorities to pay interest at the rate of 12% per annum or at such rate as may be deemed fit by this Hon'ble Court for the delay in releasing the pension, gratuity and other retirement benefits from the date of retirement till the payment of the same;" 4. During the pendency of this petition, since the Petitioner's pension papers have been sent to the Director of Accounts by the Directorate of Fire and Emergency Services, prayer Clause (d) has become infructuous. On instructions, Mr. Terance Sequeira, learned Advocate appearing for the Petitioner submits that the Petitioner will not press for the relief sought in prayer Clause (a). We therefore confine our decision to the relief sought in prayer Clause (b) and (e). 5. The main contention of the Petitioner is that the impugned orders dated 15.11.2022 and two Corrigenda dated 25.01.2023 issued to the impugned order are arbitrary and contrary to the law laid down by the Hon'ble Supreme Court in State of Punjab V/s Rafiq Masih (White Washer) etc.1 , Shyam Babu Verma and others Vs. Union of India2 and as followed by this Court in Shridhar s/o Baburao Gambhire Vs. The Chief Executive Offic