Bombay High Court
Bapurao Vishvnath Kadam vs The State Of Maharashtra And ... on 28 April, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.993 OF 2016
Dr. Bapurao s/o. Vishvnath Kadam,
Age 60 Years, Occu. Pensioner,
R/o. At Post Loha,
Tq. Loha, Dist. Nanded PETITIONER
VERSUS
1] The State of Maharashtra,
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2] The Principal Secretary,
Finance Department,
Mantralaya, Mumbai-32.
3] The Accountant General [A&E],
Maharashtra-2,
Civil Lines, Nagpur-440 001
[Copies to be served on GP
High Court Bench Aurangabad]
4] The Director of Health Service,
Arogya Bhavan,
St. Georges Hospital Campus,
Near C.S.T. Mumbai
5] The Deputy Director of Health Services,
Latur Division, Latur
6] The Chief Executive Officer,
Zilla Parishad, Nanded
7] The District Health Officer,
Zilla Parishad, Nanded. RESPONDENTS
::: Uploaded on - 28/04/2016 ::: Downloaded on - 30/07/2016 00:10:03 :::
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...
Mr. G.G.Kadam, Advocate for Petitioner
Mrs. A.V.Gondhalekar, AGP for Respondent Nos.
1 to 5
Mr. S.B.Pulkundwar, Advocate for Respondent
Nos.6 and 7.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 11.04.2016
Pronounced on : 28.04.2016
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard. Rule. Rule made returnable
and heard finally with the consent of the
parties.
2] The order dated 19.08.2014, whereby
respondent No.7 has directed recovery of an
amount of Rs.8,48,735/- from the amount
payable to the petitioner towards death cum
retirement gratuity, is questioned in the
present petition. The petitioner has served
as an Medical Officer and stood retired from
the service. The amount sought to be
recovered from the petitioner is alleged to
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have been paid to the petitioner in excess
because of wrong fixation of his pay.
3] The petitioner has challenged the
recovery of the aforesaid order on the ground
that the alleged recovery is sought from him
after his retirement, and further that it is
for the period exceeding five years prior to
issuance of the impugned order. The learned
Counsel appearing for the petitioner has
relied upon the judgment of the Hon'ble Apex
Court in the case of State of Punjab and
others Vs. Rafiq Masih and others, (2015) 4
SCC 334.
4] The learned AGP appearing for the
State has supported the action of recovery
stating that the fact of excess payment made
to the petitioner revealed when the pension
proposal was scrutinized by the office of the
Accountant General. Learned AGP further
submitted that the petitioner is bound to
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refund the amount paid in excess to him since
he was not entitled to receive the said
amount.
5] We carefully considered the
submissions advanced by the learned Counsel
appearing for the respective parties. We
have also perused the documents filed on
record. The facts involved in the present
petition are not in dispute. The alleged
recovery is not challenged by the petitioner
on the ground that the recovery is wrongly
directed against him. In other words, the
petitioner has not disputed that, the amount
of Rs.8,48,735/- has been paid to him in
excess, because of the wrong fixation of pay.
The petitioner has challenged the recovery as
we have earlier mentioned on two grounds;
first that the alleged recovery is sought
after his retirement and that too in respect
of the period prior to five years of the
impugned order i.e. from 2006 to 2009.
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6] The Hon'ble Apex Court in the
case of State of Punjab and others (supra),
after having considered the earlier judgments
on the issue, has delineated few situations,
wherein recovery from the employees would be
impermissible in law as stated, in para 18 of
the said judgment, which reads thus:
"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, summarise 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
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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 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.
7] It is not in dispute that the
petitioner got retired from the employment of
Respondent No.6 on 30.06.2015 after attaining
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the age of superannuation. There is further
no dispute that the order of recovery has
been passed on 19.08.2014. From the order of
recovery, it is further quite clear that, the
excess payment alleged to have been made to
the petitioner, because of wrong fixation,
has been made in the period from 2006 to
2014. Thus, the recovery from 2006 to 2009
is for a period in excess of the years before
issue of the impugned order of recovery, the
case of the petitioner falls within
categories (ii) fully and (iii) partly
delineated in para 18 of the judgment of the
Hon'ble Apex Court in the case of State of
Punjab and others, reproduced herein above.
8] In the circumstances, the impugned
order of recovery can not sustain and
deserves to be set aside. Hence, the
following order:
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ORDER
i] The Writ Petition is allowed.
ii] The impugned order dated 19.08.2014
passed by the respondent No.7 is quashed and
set aside.
iii]
Rule is made absolute. No order as
to costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
