Bombay High Court
Ramkishan Gangaram Bahirwad vs The State Of Maharashtra And ... on 22 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2593 OF 2016
Dr. Ramkishan s/o Gangaram Bahirwad,
Age : 58 years, occu. Retired,
R/o Venkatesh Nagar Umri,
Tq. Umri, District Nanded PETITIONER
VERSUS
1. The State of Maharashtra,
through its Secretary,
Rural Development Department,
Mantralaya, Mumbai - 32
2. The Principal Secretary,ig
Finance Department,
Mantralaya, Mumbai - 32
3. The Accountant General (A & E),
Maharashtra-2,
Civil Lines, Nagpur - 440 001
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
----
Mr. G.G. Kadam, Advocate for the Petitioner
Mr. S.B. Yawalkar, A.G.P. for respondent Nos. 1 to 5
Mr. S.B. Pulkundwar, Advocate for respondent Nos. 6 & 7
----
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CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 5th AUGUST, 2016
JUDGMENT PRONOUNCED ON : 22nd AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the parties,
heard finally.
2. The petitioner has challenged the order dated
19th August, 2014, issued by respondent No.7, directing
recovery of Rs. 7,99,387/- from his Death-cum-Retirement
Gratuity towards excess payment of salary made during
the period from 1st January, 2006 to 30th June, 2014.
3. The learned counsel for the petitioner submits
that there was no fault on the part of the petitioner
for fixation of his pay. He received the amount of
salary under the bonafide belief that it was rightly
fixed by respondent No. 7. The petitioner retired on
attaining the age of superannuation on 31 st January,
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2016. The petitioner was a class/Grade-III employee.
Therefore, in view of the judgment in the case of State
of Punjab and others, etc. V/s Rafiq Masih (White
Washer) etc. AIR 2015 S.C. 696, the amount of excess
payment made due to wrong fixation of pay of the
petitioner cannot be recovered from him.
4. The learned A.G.P., representing respondent
Nos. 1 to 5 and the learned counsel for respondent Nos.
6 and 7 strongly opposed the petition. They submit that
the pay of the petitioner has been wrongly fixed with
effect from 1st January, 2006. The said mistake was
noticed by the Pay Verification Unit. After noticing
the said mistake, it was decided to recover the amount
of excess payment of salary made to the petitioner.
They submit that the petitioner was not entitled to get
the said excess amount of salary. The petitioner is
liable to repay the same. They pray that the writ
petition may be dismissed.
5. Undisputedly, the petitioner was the
class/Grade-III employee of respondent Nos. 6 and 7. He
retired on attaining the age of superannuation on 31st
January, 2016. The amount sought to be recovered from
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him has been paid to him not because of any
misrepresentation or fraud on his part. There is
nothing on record to show that the petitioner had
knowledge that the amount that was being paid to him was
more than what he was entitled to get. The excess
payment has been made to the petitioner under a bonafide
mistake on the part of the concerned authority, for
which the petitioner cannot be held responsible. In the
circumstances, the judgment in the case of State of
Punjab and others, etc. (supra) cited by the learned
counsel for the petitioner would be applicable to the
facts of the present case. In the said judgment, the
Hon'ble the Supreme Court of India has summarised some
of the situations when recovery by the employer would be
impermissible in law. They are as under :-
(i) Recovery from the employees belonging to
Class-III and Class-IV service (or Group C and
Group D service).
(ii) Recovery from the retired employees, or
the employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from the employees, when the
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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.
6. The case of the petitioner would fall within
the Clauses (i) and (ii) referred to above. In the
circumstances, the impugned action on the part of
respondent No. 7 for recovery of the excess amount paid
to the petitioner as mentioned in the order dated 19 th
August, 2014 cannot be said to be justifiable. The Writ
Petition is liable to be allowed. In the result, we
pass the following order :-
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O R D E R
(1) The writ petition is allowed.
(2) The respondents shall not recover from the
amount of petitioner's Death-cum-Retirement
Gratuity, the amount due and payable from him
towards excess payment made to him because of
wrong pay fixation.
Rule is made absolute accordingly.
(4) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp2593-2016
