Bombay High Court
Prabhakar Lotu Tayade vs The State Of Maharashtra And ... on 18 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 118 OF 2016
Prabhakar Lotu Tayade,
Age : 61 years, Occ.: Pensioner,
R/o.: 27, Mohan Nagar, Jalgaon,
Tal & Dist. Jalgaon ..PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary,
Rural and Water Conservation
Department, Mantralaya,
Mumbai - 32
2. Zilha Parishad, Jalgaon
Through its Chief Officer,
Jalgaon, Tal. & Dist. Jalgaon
3. District Health Officer,
Zilha Parishad, Jalgaon,
Tal & Dist. Jalgaon ..RESPONDENTS
----
Mr. A.R. Syed, Advocate holding for Mr. S.P. Brahme,
Advocate for the Petitioner
Mr. A.V. Deshmukh, A.G.P. for the respondent/State
Mr. M.S. Sonwane, Advocate for respondent nos.2 and 3
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 11th AUGUST, 2016
JUDGMENT PRONOUNCED ON : 18th AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
2 wp118-2016
petition is heard finally.
2. The learned counsel for the petitioner, relying
on the averments made in the petition as well as
subsequent events narrated in Civil Application No. 9043
of 2016, submits that the petitioner retired on
attaining the age of superannuation from the post of
Projectionist on 31.05.2013. Except the provisional
pension and provident fund, other retiral benefits were
not given to the petitioner. Therefore, this petition
came to be filed for grant of retiral benefits. In the
meanwhile, respondent nos.2 and 3 determined the amounts
of the gratuity, commutation of pension and difference
of regular pension as well as provisional pension of the
petitioner. His regular pension was fixed at Rs.10545/-
per month with effect from 01.06.2013. The gratuity
amount was quantified at Rs.3,42,712/-. The commutation
of pension was determined at Rs.4,23,706/-. Thus, the
total amount of Rs.7,66,418/- was found to be due and
payable to the petitioner. It was informed by respondent
nos.2 and 3 vide letter dated 11.01.2016 that excess
amount of Rs.7,40,279/- was paid to the petitioner
because of wrong fixation of his pay. The said amount
3 wp118-2016
was recovered from the amount due and payable to the
petitioner on 06.05.2016. The amount of Rs.2,74,375/-
came to be paid to the petitioner towards difference of
regular pension and provisional pension. However, the
amount of leave encashment due and payable to the
petitioner, has not been paid to him.
3. The learned counsel for the petitioner submits
that respondent nos.2 and 3 were not entitled to recover
the amount of Rs.7,40,279/- from the amount due and
payable to the petitioner, on account of excess payment
made to the petitioner, due to wrong fixation of pay
after his retirement in view of the judgment in the case
of Ramesh s/o Channapa Kompalli Vs. State of Maharashtra
and others, 2016(1) Mh.L.J. 389. He submits that the
said amount is liable to be refunded to the petitioner.
He further submits that the direction may be given to
respondent nos.2 and 3 to refund the said amount as well
as to pay the amount of leave encashment to the
petitioner.
4. On the other hand, the learned counsel for
respondent nos.2 and 3 relying on the averments made in
the affidavit-in-reply filed by Dr.S.D. Nimgade,
4 wp118-2016
District Health Officer, Zilla Parishad, Jalgaon,
submits that the petitioner has given written
undertaking on 08.02.1999 (Exhibit R-1), whereby he has
authorised respondent nos.2 and 3 to recover the amount
of excess payment made due to wrong fixation of pay from
the amount due and payable to him or assured that he
himself would pay the same. He submits that respondent
nos.2 and 3 had a legal right to recover amount that was
paid to the petitioner in excess due to wrong fixation
of pay and in view of his specific undertaking given on
08.02.1999. Therefore, the amount that has been
recovered from the amount due and payable to the
petitioner, cannot be refunded to the petitioner. He
further submits that the claim of the petitioner for the
amount of leave encashment would be considered by
respondent nos. 2 and 3. On these grounds, he prays that
the writ petition may be dismissed.
5. It is true that as held in the case of Ramesh
s/o Channapa Kompalli (supra), the amount that has been
paid to the employee by the fault on the part of the
employer without there being any misrepresentation or
fraud on the part of the employee, cannot be recovered
5 wp118-2016
from him after his retirement. The said judgment would
be of no help to the petitioner. As stated above, the
petitioner herein had given the written undertaking on
08.02.1999, when his pay was fixed, that the amount paid
to him because of wrong pay fixation may be recovered
from the amount due and payable to him or he himself
would refund the said amount. The petitioner is governed
by the provisions of the Maharashtra Civil Services
(Pension) Rules, 1982. As per Rule 134A thereof, if in
the case of a Government servant, who has retired or has
been allowed to retire, it is found that due to any
reason whatsoever an excess amount has been paid to him
during the period of his services, then the excess
amount so paid, shall be recovered from the amount of
pension sanctioned to him. In the case of Ramesh s/o
Channapa Kompalli (supra), there was no written
undertaking given by the employee for recovery of the
amount received by him due to wrong pay fixation. Rule
134A of the M.C.S. (Pension) Rules, 1982 was not under
consideration in that case. In view of the above-
mentioned distinguishing facts of the present case, the
said ruling would not be applicable to the facts of the
present case. Respondent Nos. 2 and 3 cannot be said to
6 wp118-2016
have committed any wrong in deducting the amount of
Rs.7,40.279/- from the amount of that was due and
payable to the petitioner. The petitioner is not
entitled to get the said amount refunded.
6. As stated by the petitioner himself in Civil
Application No.9043 of 2016, the amount of regular
pension, gratuity and difference of regular pension and
provisional pension has been paid to him by respondent
nos.2 and 3 after filing of this Writ Petition. So far
as the claim of the petitioner for the amount of leave
encashment is concerned, it would be necessary to direct
respondent nos.2 and 3 to consider the same within a
stipulated period and pay the amount, if any, due and
payable to the petitioner.
7. In the above circumstances, we allow the writ
petition partly. Hence, the following order:-
(i) The Writ Petition is partly allowed.
(ii) The claim of the petitioner for refund of the
amount of Rs.7,40279/- is hereby rejected.
(iii) Respondent nos. 2 and 3 shall consider the
7 wp118-2016
claim of the petitioner for grant of the amount
of leave encashment within four weeks from the
date of this order and if it is found that he
is entitled to get any amount on that count,
shall pay the same to him within six weeks from
the date of this order.
(iv) Rule made absolute in the above terms.
(v) The Writ Petition is accordingly disposed of.
(vi) Civil Application No. 9043 of 2016 is disposed
of.
(vii) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/wp118-2016
