The Chief Executive Officer And ... vs Bandu Rambhau Chavan
2016 Latest Caselaw 1612 Bom

                                                                                 WP/9821/2015
                                                 1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                
                                   WRIT PETITION NO. 9821 OF 2015




                                                        
     1. The Chief Executive Officer,
     Zilla Parishad, Ahmednagar.

     2. The Block Development Officer,




                                                       
     Panchayat Samiti, Pathardi,
     Tq. Pathardi, Dist. Ahmednagar.                     ..Petitioners

     Versus




                                            
     Bandu Rambhau Chavan
     Age 61 years, Occ. Retired,
                             
     A/p Pathardi, Tq. Pathardi,
     District Ahmednagar.                                         ..Respondent

                                           ...
                            
                     Advocate for Petitioners : Shri Shelke Shivaji T.
              Advocate for Respondent : Shri Barde P.V. h/f Shri Temkar R.K.
                                           ...
      

                                   CORAM : RAVINDRA V. GHUGE, J.

Dated: April 18, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition is

taken up for final disposal.

4. The respondent herein had filed Complaint (ULP) No. 84 of 2013

WP/9821/2015

before the Industrial Court. Shri Shelke points out that the prayers in the

said complaint were with regard to the orders of re-fixation and direction

to refund illegal deduction / recovery. No prayer for pension was put forth

by the respondents. Despite the same, the Industrial Court has directed the

petitioner to start the pension of the respondent / employee within one

month.

5. Shri Shelke has strenuously criticized the impugned judgment of the

Industrial Court by which, the recovery of excess amounts has been

prevented and the recovered amount is directed to be refunded. He

submits that the petitioner had wrongly settled the pay scale / revision in

pay scale of the respondent / employee. After passage of time, it was

realized that the fixation was wrongly done and inadvertently excess

amount has been paid to the respondent. He, therefore, justifies the order

of re-fixation of the respondent's pay scale and recovery of the amounts

paid in excess.

6. He further submits that the Industrial Court could not have travelled

beyond the prayers put forth by the employee. When there was no prayer

for grant of pension, the Industrial Court, without assigning any reason has

proceeded to direct the petitioner to commence the payment of pension to

the employee. He, therefore, prays that the impugned order be quashed

and set aside and the complaint be dismissed.

WP/9821/2015

7. Shri Barde, learned Advocate for the respondent / employee supports

the impugned judgment. Contention is that neither has the respondent mis-

led the petitioner while the fixation of pay scale was undertaken nor has

the respondent played any fraud or mischief for acquiring excess payment.

The fixation of the pay scale was within the domain of the petitioner.

Having so done, it could not have resorted to the activity of re-fixation of

pay scale. The respondent has, on the basis of oral and documentary

evidence, established that the fixation done by the petitioner with regard

to the pay scale of the respondent was correct. The Industrial Court has

arrived at findings on facts and this Court, in it's supervisory and writ

jurisdiction, should not interfere only because a different view is possible.

8. He submit that during the pendency of the complaint, the respondent

has retired. Considering his retirement, the issue of pension cropped up.

The Industrial Court exercised jurisdiction in order to deal with the issue of

pension and has accordingly passed a consequential order. He, therefore,

submits that such an order need not be interfered with and in any case, the

respondent would be entitled for pension.

9. I have considered the submissions of the learned Advocates.

10. There is no dispute that there are no laches attributed to the

conduct of the respondent. It is not the case of the petitioner that he is

guilty of mis-representation or playing a fraud on the management for

WP/9821/2015

getting benefits of wrong fixation of pay scales. In short, there are no

attributes to the conduct of the respondent / employee.

11. I have gone through the reasons assigned by the Industrial Court. The

issue with regard to the recovery of excess payment has been dealt with by

the Honourable Supreme Court in the matter of Syed Abdul Qadir Vs. State

of Bihar [2009 AIR SCW 1871] and in The matter of State of Punjab and

others Vs. Rafiq Masih (WhiteWasher) [AIR 2015 SC 696]. It would be

apposite to reproduce paragraph No.12 from the judgment in the case of

State of Punjab (supra), which reads as under:-

"12. It 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

herein above, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(iii) Recovery from 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

WP/9821/2015

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."

12. In the instant case, the respondent has retired. He belongs to the

Class IV category. He has not earned the benefits of the pay fixation by

playing any fraud or by mis-leading the petitioner. I, therefore, find that it

would be iniquitous and harsh to cause recovery of excess money paid to

the respondent.

13. In the light of the above, I do not find that the direction of the

Industrial Court restraining the petitioner from causing recovery of the over

payment deserves to be interfered with. I also do not find any reason to

interfere with the direction of the Industrial Court to the petitioner to

return the amount of Rs.27,000/- without interest. However, the direction

to commence the payment of pension to the respondent / employee is

concerned, there was neither any prayer nor pleadings in the complaint.

The respondent has not chosen to amend his complaint and add the

pleadings and the prayers after his retirement during the pendency of the

complaint.

WP/9821/2015

14. The learned Division Bench of this Court in the matter of similarly

situated employees, has delivered a judgment dated 13.8.2015 in Writ

Petition No. 2589 of 2012 (Sheshrao Pataloba Vs. Waybase Vs. The State of

Maharashtra) and other and connected petitions, with regard to the claim

of pension. Paragraphs 17 and 18 of the said judgment read as under:-

"17. The petitioners may make representations to that effect with

the respondent No. 1 - State, which representations would be considered by ig the respondent No. 1/State sympathetically, considering the fact that, it was the State who was not in a position to absorb the petitioners well within time.

18. It is also made clear that, if such representations are made by petitioners for considering past service for pensionary benefits, to

the State, this order would not come in the way for consideration of said representations."

15. In the light of the above and especially in view of the fact that there

are no pleadings and prayers with regard to the pension, the Industrial

Court could not have granted the payment of pension to the respondent. As

such, the second part of the direction in Clause 4 of the impugned order is

quashed and set aside. In short, the direction to start the payment of

pension to the respondent stand quashed and set aside.

16. Needless to state, the respondent is at liberty to make a

representation for grant of pension to the competent authority / State,

which shall decide the same expeditiously, on its own merits.

WP/9821/2015

17. The Writ Petition is, therefore, partly allowed, in the light of the

above directions and Rule is made partly absolute accordingly.

( RAVINDRA V. GHUGE, J. )

...

akl/d