Employer Can't Alter Service Records Post-Retirement To Cover Its Own Lapse, J&K And Ladakh High Court Quashes Pension Recovery From Retiree
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti has allowed a writ petition by a retired Jammu Development Authority employee, setting aside the authority’s post-retirement revision of his service book that altered a key promotion-related entry and led to recovery from pensionary benefits. The Court held that an employer cannot revise service records after superannuation to an employee’s prejudice to cover its own lapses, particularly where the employee was not responsible for maintaining the service book and the matter had already been settled by an earlier High Court judgment. The dispute arose after communications from the Local Fund Audit and the Pensions Department prompted the authority to rewrite entries and recalibrate benefits; the Court directed that the in-situ promotion date remain unchanged and the pension case be processed accordingly.
The writ petition arose from post-retirement revisions made to the service book of a retired employee of the Jammu Development Authority. After superannuation on 30 April 2019, the employer revised three service-related entries on the basis of an audit communication issued by the Deputy Director, Local Fund Audit and Pensions. These revisions altered the recorded date of regularization and the date of the second in-situ promotion, and treated an earlier regularization order as null and void. As a consequence, the petitioner’s pensionary benefits were recalculated, leading to deductions and a proposed recovery of ₹1,40,194 from retiral dues.
The petitioner contended that the service record had been maintained exclusively by the employer, that the benefits had been granted during service by competent authority, and that no misrepresentation or fault was attributable to him. It was asserted that the post-retirement revision of service entries and recovery violated settled legal principles governing pension and retiral benefits. The respondents defended the action by relying on audit objections pointing out alleged contradictions in service records and inadmissible counting of consolidated service for grant of higher standard pay scale.
The Court, upon examining the impugned audit communication and the subsequent administrative action taken by the Jammu Development Authority, observed that “a bare perusal of the impugned order no. LFAP/J/2019-20/2030 dated 17.09.2019 issued by Deputy Director, Local Fund Audit and Pensions, Jammu would show that it is nothing but a cover up by the JDA on its own act of omission and commission to the prejudice of the petitioner.” The Court recorded that the petitioner had no role in the preparation or maintenance of his service records and stated that “the petitioner is not the author of his own service record book.”
The Court further recorded that the responsibility to maintain accurate service records rested entirely with the employer and observed that “it is the concerned establishment of the JDA which was supposed to remain alert and alive to the corresponding developments related to the service career of the petitioner in the context of his original engagement followed by subsequent postings and then the judgment of this Court passed in writ petition OWP No. 646 of 1985 which attained finality to be given effect to without any dilution.”
On the legality of revising service benefits after retirement, the Court observed that the judgment rendered in the earlier writ petition had attained finality and could not be unsettled indirectly through administrative re-writing of service entries. The Court also recorded a violation of principles of natural justice, stating that “the petitioner was not extended the courtesy of even being heard by the Vice Chairman/Vice Chairperson of JDA and that also renders the impugned order vitiated with serious illegality.”
Addressing the issue of recovery from retiral benefits, the Court observed that “there is no doubt to the fact that the grievance of the petitioner is fully secured by the verdict of the Hon’ble Supreme Court of India in the case of State of Punjab and Ors Vs. Rafiq Masih.” The Court thus found that the proposed recovery, arising out of employer-generated errors and effected post-retirement, was impermissible in law.
The Court directed that “the writ petition is allowed. Impugned order no. 15 of JDA 2020 dated 10.07.2020 is set aside by reference to entry No. 3. There shall be no change of date with respect to the benefit of in situ promotion accorded to the petitioner and pension case of the petitioner to be processed accordingly.” The petition was accordingly disposed of.
Advocates Representing the Parties
For the Petitioner: Mr. Surjeet Singh Andotra, Advocate, with Mr. Sahil Sharma, Advocate
For the Respondents: Mr. K.D.S. Kotwal, Deputy Advocate General; Mr. Adarsh Sharma, Advocate
Case Title: Shrist Pal Sharma v. Union Territory of J&K & Ors.
Case Number: WP(C) No. 1677/2021
Bench: Justice Rahul Bharti
