Bombay High Court
Dharmapal Pandhari Khobragade ... vs The State Of Maharashtra Thr Its ... on 6 April, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.255 OF 2016
PETITIONERS :- 1) Dharampal Pandhari
Khobragade, aged about 50
years, Occupation service, R/o
Sidharth Ward No.3, Armori,
District Gadchiroli.
2) Ramesh Motiram Garmade,
Aged about 55 years, Occupation
ig Service, R/o behind Hitkarni
High School, Armori, District
Gadchiroli.
...VERSUS...
RESPONDENTS :- 1) The State of Maharashtra
Through its Secretary, Rural
Water Supply Department,
Mantralaya, Mumbai-32.
2) Zilla Parishad, Gadhiroli,
Through its Chief Executive
Officer, Gadchiroli, Taluka &
District Gadchiroli.
3) The Deputy Chief Executive
Officer (General), Zilla Parishad,
Gadchiroli, Taluka & District
Gadchiroli.
4) The Deputy Chief Executive
Officer Mechanical, Rural Water
Supply Scheme, Zilla Parishad,
Gadchiroli, Taluka & District
Gadchiroli.
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Mr.A.P. Chaware, counsel for the petitioners.
Mr.S. Zoting, counsel for the respondent Nos.2, 3
and 4.
Mrs.A.R. Kulkarni, AGP for the respondent No.1.
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CORAM : SMT. VASANTI A. NAIK &
V. M. DESHPANDE, JJ.
DATED : APRIL 6, 2016.
ORAL JUDGMENT (Per SMT. VASANTI A. NAIK, J.)
Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the parties.
By this writ petition, the petitioners challenge the order of
the respondent No.3, dated 2.6.2015, seeking the recovery of the
amount that was wrongfully paid in excess to the petitioners, towards
the salary.
Shri Chaware, the learned counsel for the petitioners
states that the issue involved in this case stands answered in favour of
the petitioners by the judgment reported in (2014)8 SCC 883 (State of
Punjab and ors ..vs.. Rafiq Masih (whitewasher)), as the Honourable
Supreme Court has held that the recovery of the excess amount that is
paid to an employee, in the absence of his mis-representation, cannot be
recovered from the employee when the employee is on the verge of the
retirement. It is stated that the petitioners are due to retire in the year
2020. It is stated that in the circumstances of the case, the recovery
could not have been directed.
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Shri Zoting, the learned counsel for the respondent Nos.2
to 4 opposes the prayer made in the writ petition. It is submitted that
the petitioners have an alternate remedy of filing an appeal under Rule
14 of the Maharashtra Zilla Parishad Discipline Appeal Rules. It is
stated that in stead of availing an alternate remedy, the petitioners have
approached this Court. It is stated that the petitioners ought to have
prosecuted the remedy before the Labour Court.
On hearing the learned counsel for the parties, it appears
that the relief sought by the petitioners needs to be granted. The
impugned order is liable to be quashed and set aside in view of the
judgment of the Honourable Supreme Court in the case of (2014)8 SCC
883 (State of Punjab and ors ..vs.. Rafiq Masih (whitewasher)). It is
well settled that the recovery of the excess amount wrongfully or
mistakenly paid to an employee cannot be recovered when the
employee is on the verge of the retirement. The recovery in the instant
case is sought to be made after fifteen years, in the year 2015 and the
petitioners are due to retire in the year 2020. The judgment of the
Honourable Supreme Court is squarely applicable to the facts of this
case. The objection raised on behalf of the petitioners in regard to the
availability of an alternate remedy is liable to be rejected. The plea of
alternate remedy is not a rule of law. In its discretion, the Court can
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always entertain a writ petition despite the existence of an alternate
remedy. Further, in the instant case the recovery is sought to be made
by the respondent Nos.2 to 4 against the settled position of law as laid
down in the case of (2014)8 SCC 883 (State of Punjab and ors ..vs..
Rafiq Masih (whitewasher)) and the other reported judgments of the
Honourable Supreme Court including the judgment reported in
(2012)8 SCC 117 (Chandi Prasad Uniyal and ors ..vs.. State of
Uttarakhand and ors). Since the petitioners had already withdrawn
the proceedings before the Labour Court, the submission made on
behalf of the respondent Nos.2 to 4 that the petitioners ought to have
availed the remedy before the Labour Court is ill-founded. In the
circumstances of the case, we intend to grant the relief in favour of the
petitioners.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
!! BRW !!
