Bombay High Court
Sadashiv Marutirao Kendre And ... 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. 2332 OF 2016
1. Dr. Sadashiv s/o Marutirao Kendre,
Age : 59 years, Occu. Retired,
R/o 9B, Abhinandan Terrace,
Sut Mill Road, Latur,
Tq. and District Latur
2. Dr. Rajan s/o Digambarrao Parlikar,
Age : 59 years, Occu. Retired,
R/o Yogeshwar Sankul,
Samarthnagar, Bhoom,
Tq. Bhoom, District Osmanabad PETITIONERS
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
4. The Director of Health Service,
Arogya Bhavan,
St. Georges Hospital Campus,
Near C.S.T., Mumbai
5. The Deputy Director of Health Services,
Osmanabad Division, Osmanabad
6. The Chief Executive Officer,
Zilla Parishad, Osmanabad
7. The District Health Officer,
Zilla Parishad, Osmanabad RESPONDENTS
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Mr. G.G. Kadam, Advocate for the Petitioners
Mr. S.B. Yawalkar, A.G.P. for respondent Nos. 1 to 5
Mr. S.B. Gastgar, Advocate for respondent Nos. 6 and 7
----
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. Petitioner Nos. 1 and 2 have challenged the
orders dated 14th October, 2015, issued by respondent
No.7, directing recovery of Rs. 4,93,540/- and Rs.
6,00,101/- from them respectively from their Death-cum-
Retirement Gratuity towards excess payment of salary
made during the period from 1st March, 2009 to 31st
January, 2015 and from 1st March, 2009 to 31st March,
2015, respectively.
3. The learned counsel for the petitioners submits
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that there was no fault on the part of the petitioners
for fixation of his pay. They received the amount of
salary under the bonafide belief that it was rightly
fixed by respondent No. 7. Petitioner Nos. 1 and 2
retired on attaining the age of superannuation on 31st
January, 2015 and 31st March, 2015, respectively. Both
of them were class/Grade-III employees. 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 petitioners cannot be
recovered from them.
4. The learned A.G.P., appearing for 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 petitioners has been wrongly fixed with
effect from 1st March, 2009. 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 petitioners.
They submit that the petitioners were not entitled to
get the said excess amount of salary. The petitioners
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are liable to repay the same. They, therefore, pray
that the writ petition may be dismissed.
5. Undisputedly, the petitioners were the
class/Grade-III employees of respondent Nos. 6 and 7.
They retired on attaining the age of superannuation on
31st January, 2015 and 31st March, 2015, respectively. The
amount sought to be recovered from them has been paid to
them not because of any misrepresentation or fraud on
their part. There is nothing on record to show that the
petitioners had knowledge that the amount that was being
paid to them was more than what they were entitled to
get. The excess payment has been made to the
petitioners under a bonafide mistake on the part of the
concerned authority, for which the petitioners 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 petitioners 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 :-
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(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
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 petitioners would fall within
the Clauses (i) and (ii) referred to above. In the
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circumstances, the impugned action on the part of
respondent No. 7 for recovery of the excess amount paid
to the petitioners as mentioned in the orders dated 14th
October, 2015 cannot be said to be justifiable. The
Writ Petition is liable to be allowed. In the result,
we pass the following order :-
O R D E R
(1) The writ petition is allowed.
(2) The respondents shall not recover from the
amounts of the petitioners' Death-cum-
Retirement Gratuity, the amount due and payable
from them towards excess payment made to them
because of wrong pay fixation.
(3) Rule is made absolute accordingly.
(4) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp2332-2016
