JUDGMENT : S.C. DHARMADHIKARI, J. 1. Rule. Respondents waive service. By consent, Rule made returnable forthwith. 2. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents to produce all the leave salary records and thereafter requests this Court to peruse the same and on a scrutiny thereof this Court should quash and set aside a proposal of recovery from the petitioner's leave salary dues. 3. The facts and circumstances in which this relief is sought are summarized herein-below. The petitioner is an ex-employee of the Municipal Corporation of Greater Mumbai, now styled as Brihanmumbai Municipal Corporation (for short "BMC"). The second respondent is the Additional Municipal Commissioner of the BMC. 4. The petitioner retired from Municipal service in May, 2009. On the date of her retirement by attaining the age of superannuation, she was serving as a Head Telephone Operator in Lokmanya Tilak Municipal General Hospital, Sion. The petitioner was appointed as a Telephone Operator in the BMC in 1993. She served the Municipal Corporation and was, during her service, promoted as Head Telephone Operator. Thus, having been appointed as 'A' Grade Telephone Operator in E Ward Municipal Office, she earned this promotion. There is an order passed so as to enable the petitioner to take over the duties of the promotional post. The petitioner served the BMC till her retirement on this post. It is her case that her record was unblemished and she did not suffer any penalty or punishment. 5. It is the case of the petitioner that the second respondent is the Administrative Head and the petitioner was serving the Municipal hospital of which the Dean was in-charge. The petitioner relies upon an Office Note dated 10th March, 1993, copy of which is at Annexure-A. It is her case that she was serving the Municipal Corporation and her duty hours were assigned from time to time. The petitioner states that she has been given benefit of half-day on every Saturday since the date of her appointment as Head Telephone Operator. That was a practice followed and with the permission of her superiors. She, therefore, performed her duties as per Duty List and obtained the benefit of second and fourth Saturdays. The petitioner states that she has been given benefit of half-day on every Saturday since the date of her appointment as Head Telephone Operator. That was a practice followed and with the permission of her superiors. She, therefore, performed her duties as per Duty List and obtained the benefit of second and fourth Saturdays. She submits that all her bills, including the vouchers and documents with regard to the claims made by her for the performance of duties at the Municipal Corporation hospital and outdoor have been verified and scrutinized by her superiors from time to time. She followed the duty hours from 10:30 a.m. to 5:00 p.m. She states that there are seven posts of Telephone Operators and how the work was distributed is set out in detail in paragraph 5. It is claimed that somewhere in the year 2004, the Deputy Chief Accountant and Medical Officer objected for payment of overtime. For the first time a Note dated 21st July, 2005, was addressed to the Assistant Commissioner (Health/Dean). That Note alleged there are six Telephone Operators in three shifts. One Telephone Operator has been substituted for weekly off and one post is for leave reserve. Therefore, eight posts of Telephone Operators were filled in and there is no vacancy. If all the Telephone Operators work for eight hours, then, there will be no need to pay any overtime wages. It is stated in the Note that there is no separate post of Head Telephone Operator on the Establishment of the Municipal Corporation. The senior most Telephone Operator from the Establishment is appointed as Head Telephone Operator with additional working allowance of Rs.95/- per month. The details of this Note are set out in paragraph 6 of the petition and it is stated that the petitioner is annexing a copy thereof as Annexure-C so as to buttress and support her claim that beyond this Note, the matter was not pursued. There is another communication of 20th April, 2006, copy of which is Annexure-D to the petition. It is stated that there was another proposal to make payment of overtime work, but at the same time, if the overtime work has not been sanctioned and approved, then, the overtime allowances ought to be recovered by holding an Inquiry. 6. There is another communication of 20th April, 2006, copy of which is Annexure-D to the petition. It is stated that there was another proposal to make payment of overtime work, but at the same time, if the overtime work has not been sanctioned and approved, then, the overtime allowances ought to be recovered by holding an Inquiry. 6. It is in these circumstances that after obtaining information under the Right to Information Act, 2005, the Note prepared on 21st March, 2007, was obtained. That Note raised an objection of a holiday availed of by the petitioner on second and fourth Saturdays. It alleged that there is an excess payment made to her by way of overtime allowance. The petitioner also relies upon certain information which she derived from the records, particularly about a letter dated 7th March, 2005, addressed by the Dean of Sion Hospital. The Dean of Sion Hospital was intimated by the petitioner that it was difficult to make arrangements as proposed by the Dean. Then, there was a meeting arranged with the representatives of the Union. 7. It is thus claimed that the overtime allowance/payment of overtime was a practice followed and throughout that was admissible. That maintained the smooth working of the hospital and assisted in its proper administration. Though the Note of 23rd April, 2007, alleging that the petitioner has drawn excess overtime allowance/wages was placed before the Additional Commissioner who made an order on 7th June, 2007, copy of which is Annexure-G, what has been pointed out by the petitioner is that the overtime allowance drawn by her was properly explained in a representation dated 5th November, 2007. The issue was also taken up by the Municipal Mazdoor Union with the Chief Labour Officer and there is a communication on the subject dated 28th November, 2008, copy of which is Annexure-I to the petition. 8. It is claimed that the Dean supported the stand of the petitioner by a written note and the endorsements made on 13th February 2009 and 12th March, 2009. It is in these circumstances that the petitioner states that on 3rd July, 2009, an explanation was sought from the petitioner as to why the benefit of second and fourth Saturday holidays and the excess payment of Rs.1,10,879/- should not be recalled and the amount recovered from her. It is in these circumstances that the petitioner states that on 3rd July, 2009, an explanation was sought from the petitioner as to why the benefit of second and fourth Saturday holidays and the excess payment of Rs.1,10,879/- should not be recalled and the amount recovered from her. The petitioner also obtained some additional information under the Right to Information Act, 2005. 9. It is stated that the petitioner retired from Municipal service on 1st April, 2009. She received the entire retiral dues except the leave salary. The leave salary, according to her, in terms of these Rules, is admissible. A computation is made in monetary terms and even that sum is not released. The petitioner demanded the same, but what she was informed was that the BMC is contemplating recovery proceedings and that is how that sum cannot be released. The petitioner annexes a copy of a Note dated 3rd October, 2009, by the Dean, Sion Hospital, Director, Additional Municipal Commissioner. Then the petitioner relies upon further documents to submit that the Municipal Corporation / Additional Municipal Commissioner cannot now initiate any proceedings for recovery of the dues. There cannot be disciplinary proceedings or recovery proceedings for the Rules do not contemplate a situation where the benefits claimed and taken by her from 1993, that is from the date of her appointment till 2004 and with full knowledge, consent and approval of her superiors, cannot now be recalled and the sum recovered. The petitioner has addressed letters to this effect. It is in these circumstances that she relies upon the Pension Rules. She also says that though the Deputy Chief Accountant first claimed the recovery of excess payment made to her due to non working for eight hours, but subsequently by the Note dated 3rd July, 2009, the Accounts Officer (Establishment) claimed that the petitioner has taken the benefit of 246 second and fourth Saturdays from January 1998 till March, 2009 and sought to recover a sum of Rs.1,10,879/-. It is in these circumstances that she would submit that when such an issue as noted above was being raised repeatedly from 2004-2005, yet the petitioner was allowed to retire on attaining the age of superannuation, now, no proceedings for recovery can lie and in law. 10. It is on such allegations, averments and grounds that the writ petition claims the aforementioned reliefs. 11. 10. It is on such allegations, averments and grounds that the writ petition claims the aforementioned reliefs. 11. An affidavit-in-reply has been filed by the Administrative Officer of the LTMG Hospital, in which it is stated that the petitioner joined the Municipal services on 3rd October, 1970, as a Telephone Operator. She was made permanent in Municipal service with effect from 1st April, 1978. It is stated and to be an admitted position that she duly retired from Municipal service with effect from 1st April, 2009, after working for more than 35 years. It is claimed that the respondents have already released the pension and gratuity claim on 13th October, 2009. 12. It is claimed that the petitioner was working as Head Telephone Operator since March, 1993 in the LTMG Hospital. As per office procedures and rules, she was supposed to work for eight hours. However, while on duty she worked only for seven hours. The Accounts Officer of the hospital verified her service record and thereafter perusing the office audit report, arrived at a conclusion that she has received extra benefit of second and fourth Saturday duty allowance, special allowance and that is how the Accounts Officer and the Deputy Chief Accountant, as part of administrative procedure, enquired about recovery of extra payment of Rs.1,10,889/- that was already received by the petitioner. The copy of the Office Note dated 12th July, 2007 and 3rd July, 2009, is relied upon. 13. It is stated that after the procedure was initiated for recovery, the petitioner submitted a request letter and also forwarded various letters through the Union requesting not to recover this amount. A regular proposal was submitted before the various authorities and finally, the Additional Municipal Commissioner and the Commissioner have issued written directions that the petitioner having worked only for seven hours, but obtained payment of eight hours, that the recovery of this excess amount should be initiated. That is how it is stated that the petitioner was entitled for final leave encashment of Rs.1,67,598/-. The respondents have recovered total amount of Rs.1,66,430/- from June, 1993 to March, 1999, which was the excess sum. The remaining balance sum is duly deposited in the petitioner's bank account. It is stated that the petitioner has been paid the revised pension and her gratuity, provident fund and other terminal benefits in accordance with the rules and regulations have been duly released. The remaining balance sum is duly deposited in the petitioner's bank account. It is stated that the petitioner has been paid the revised pension and her gratuity, provident fund and other terminal benefits in accordance with the rules and regulations have been duly released. Hence nothing is due and payable. 14. We have heard learned counsel for the petitioner and Mr. Pimple for the BMC-respondent at great length on the earlier occasion and today. The petitioner's counsel would submit that the impugned action is completely arbitrary and unsustainable in law. She would submit that the respondents agree and admit that for recovery of the alleged excess amount, they would have to initiate proceedings. These could be disciplinary proceedings and in terms of the service regulations. However, reliance is placed on the Pension Regulations. The Pension Regulations, according to her, does not empower the respondents to recover any sums and which are allegedly due and payable from June, 1993, to March, 1999, post retirement. Beyond exchanging notes, nothing was done during this duration and while the petitioner was in service. Now, a recovery is imposed wrongfully and illegally. 15. On the earlier occasion and even today, we inquired from Mr. Pimple as to how the action against the petitioner is justified. 16. Mr. Pimple relied upon a written note, copy of which is handed over. That note dated 11th June, 1997, states that the petitioner was working as an 'A' grade Telephone Operator from March, 1993. She was supposed to work from morning 10 O'clock to 6 O'clock in the evening. She has worked from morning 10:30 a.m. to 5:30 p.m. That works out to seven hours and not eight hours. Thus, she has worked one hour less. She has also availed of leave on second and fourth Saturday which were never admissible to her. More importantly, this leave availed of was without any authority and permission from the superiors. She also drew the salary for these second and fourth Saturday off. This is how unauthorisedly leave was availed of. She has caused loss to the Corporation inasmuch as not putting in the required duty hours and availing of leave, but drawing allowances for the same would denote that the monetary loss caused to the Corporation can be recovered by adjusting the dues against her retiral benefits. That is how the recovery was initiated. She has caused loss to the Corporation inasmuch as not putting in the required duty hours and availing of leave, but drawing allowances for the same would denote that the monetary loss caused to the Corporation can be recovered by adjusting the dues against her retiral benefits. That is how the recovery was initiated. The petitioner was informed about this and yet through the Union she made representation and prayed for dropping the proceedings. 17. Mr. Pimple would rely upon Rule 14B of the BMC Pension Rules, 1953. Rule 14-B by sub-rule (1) states that a retired employee, if during the course of his service, or after having retired but on re-employment, has committed serious misconduct or negligence and if that has been established by any departmental enquiry or legal proceedings, then, the competent authority can pass a written order withholding his pension and terminal benefits or any part thereof. Similarly, recovery also can be made from the terminal benefits admissible to the retiree. However, if any part of the retiral benefits have been withheld or the sum has been recovered, then, from the remaining sum, nothing should be deducted. 18. However, there is sub-rule (2) and clause (a) of this sub-rule (2) says that if there is any inquiry initiated in terms of sub-rule (1) or any action has been taken in accordance therewith, then, that enquiry would be presumed to be an enquiry within the meaning of the service regulations. That enquiry can continue even if the retirement on same terms and conditions and by presuming that the employee continues in service. However, after the retirement of such employee, the enquiry cannot be held without prior sanction of the competent authority and if such enquiry is to be initiated, it should be first ascertained that it cannot be for or in relation to any incident committed four years prior to the date of his retirement/superannuation. Thus, any misconduct and of the nature referred above if committed within four years prior to the date of retirement, then, that can be enquired into and the penalty imposed in terms of this 14-B. 19. What has been, therefore, relied upon is the excess recovery traceable to 14-B and particularly sub-rule (1) and sub-rule (2) thereof. Thus, any misconduct and of the nature referred above if committed within four years prior to the date of retirement, then, that can be enquired into and the penalty imposed in terms of this 14-B. 19. What has been, therefore, relied upon is the excess recovery traceable to 14-B and particularly sub-rule (1) and sub-rule (2) thereof. What we have found is that this Rule has several sub-rules and if we read all of them together and harmoniously it is conceded that there have to be some proceedings. Meaning thereby, disciplinary or legal proceedings. There is no legal proceeding either initiated or pending for the alleged excess recovery and the petitioner was allowed to retire from service. She was paid all her terminal benefits, including pension. The withholding of that sum on the ground that there was an excess payment is justified by relying upon the office note and the correspondence exchanged between parties. However, that cannot replace a proceeding within the meaning of that sub-rule (1) of rule 14-B. No proceeding of any nature and within the meaning of that sub-rule has been brought to our notice either initiated or pending. There is only sanction and approval to initiate such proceedings from superior/competent authorities which is being highlighted and placed before us. We do not think that this would suffice in the facts and circumstances of the present case. A sum admissible to the petitioner as an allowance and for reporting for work, working for the required hours, availing of the permissible leave cannot be denied in the manner in which it is done in the present case. There ought to have been proceedings and which even if pending on the date of retirement ought to have been pursued on the terms set out in sub-rule (2) of rule 14-B. If at all that rule is being relied upon, then, its rigors and its terms ought to be scrupulously followed. We cannot support any action and now allegedly initiated for recovery of certain sums and moneys paid for the period March, 1993 to June, 1999. Admittedly, this sum is adjusted and sought to be recovered from the total sums and amounts due and payable to the petitioner as retiral benefits. If such recovery is sought to be justified, then, it must be demonstrated and proved that the law enabling the same is strictly adhered to. Admittedly, this sum is adjusted and sought to be recovered from the total sums and amounts due and payable to the petitioner as retiral benefits. If such recovery is sought to be justified, then, it must be demonstrated and proved that the law enabling the same is strictly adhered to. We do not find any such adherence and placed before us on record. 20. On the available material, therefore, we cannot permit the respondents to withhold or continue to hold the sum as mentioned in paragraph 12 of the affidavit-in-reply running page 136. More so, when in the rejoinder affidavit, the petitioner has pointed out that there was throughout an approval. There was never any objection raised when she availed of the leave. She has put in the required number of hours. She has specifically denied that the recovery is permissible. She has stated that the amount which is sought to be recovered pertains to June 1993 - March 1999 and it's recovery by adjusting the terminal dues is impermissible. If no steps were taken from March 1993 till 2009, though a sanction was obtained for initiating the proceedings with regard to such recovery allegedly, therefore, and in our view rightly, justifies the stand of the petitioner. 21. The petitioner has not been paid the entire dues and in terms of her entitlement. The denial by such process as noted above is, therefore, clearly arbitrary. It cannot be sustained on the touchstone of the Service Regulations as also the Pension Rules placed before us. 22. As a result of the above discussion, the writ petition succeeds. Rule is made absolute in terms of prayer clause (a). The amount as computed above shall be released as expeditiously as possible and within four weeks from today with interest at the rate of 8% from the date of the same being withheld till payment/realisation. In the circumstances, there will be no order as to costs. We clarify that we have passed this order in the peculiar facts and circumstances of the petitioner's case and any pending proceedings for recovery against any other employee shall remain unaffected by this order and direction.