Bombay High Court
Mr. Devidas Hiramanji Bhimte vs The State Of Maharashtra, General ... on 14 December, 2016
Bench: V.A. Naik
1412WP6295.16-Judgment 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6295 OF 2016
PETITIONER :- Mr.Devidas Hiramnji Bhimte, aged about 66
years, Occupation:- Retired R/o Plot No.5-A
Nashik Nagar, New Subhedar Layout,
Nagpur.
...VERSUS...
RESPONDENTS :- 1) The State of Maharashtra, General
ig Administration Department, Mantralaya,
Mumbai-400032 through its Secretary.
2) State of Maharashtra, Finance Department,
Madam Cama Road, Hutatma Rajguru
Square, Mantralaya, Mumbai-400032
through its Secretary.
3) Sub-Divisional Agricultural Officer, Tahasil:
Wadsa, District :- Gadchiroli.
4) Assistant Accounts Officer, Office of
Accountant General (A & E)-II, Maharashtra,
Civil Lines, Nagpur 440001.
5) Nagpur Treasury Office, Collectorate
Compound, Civil Lines, Nagpur 440001
through its Senior Treasury Officer.
---------------------------------------------------------------------------------------------------
Mr.A.A. Pathak, counsel for the petitioner.
MrsH.N.Prabhu, Asstt.Govt.Pleader for the respondents.
---------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK &
MRS. SWAPNA JOSHI, JJ.
DATED : 14.12.2016
1412WP6295.16-Judgment 2/4
O R A L J U D G M E N T (Per Smt. Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally at the stage of admission with the consent of the learned
counsel for the parties.
2. By this writ petition, the petitioner challenges the order of
the respondents dated 29/09/2016 directing the petitioner to refund
the amount that was paid to the petitioner for rendering the services in
the naxalite area.
3. The petitioner was rendering the services in the naxalite
area and was mistakenly paid an additional allowance from
07/10/2005 till the date of his retirement on 30/06/2008. The said
excess payment that was mistakenly released in favour of the petitioner
was sough to be recovered by the respondents by the impugned order
dated 29/09/2016.
4. Shri Pathak, the learned counsel for the petitioner, states
that the impugned order is liable to be quashed and set aside in view of
the law laid down in the case of State of Punjab and others v. Rafiq
Masih (Whitewasher), reported in (2014) 8 SCC, 883. It is stated that the
excess payment was not released in favour of the petitioner for the
aforesaid period on a misrepresentation by the petitioner. It is stated
that an amount mistakenly paid to an employee for a considerable
1412WP6295.16-Judgment 3/4
period cannot be recovered after his retirement, as the same would
cause extreme hardship to the employee. It is further stated that no
undertaking was secured from the petitioner before releasing the excess
payment in favour of the petitioner for the period from 07/10/2005 till
30/06/2008, that the petitioner would be liable to refund the amount,
if he was not entitled to the same.
5. Mrs.Prabhu, the learned Assistant Government Pleader
appearing for the respondents, has supported the impugned order. It is
submitted that the excess payment was wrongfully made to the
petitioner for the aforesaid period. It is stated that since the petitioner
was not entitled to the higher pay scale, the respondents have rightly
passed the impugned order dated 29/09/2016. The learned Assistant
Government Pleader, however, does not dispute the position of law as
laid down by the Hon'ble Supreme Court in the case of Rafiq Masih,
reported in (2014) 8 SCC, 883 that the payment mistakenly made to an
employee cannot be recovered from the employee after his retirement.
6. It appears that the case of the petitioner is squarely
covered by the judgment in the case of Rafiq Masih, reported in (2014) 8
SCC, 883. The petitioner was paid higher pay scale for almost three
years and the respondents realized the mistake more than eight years
after the payment was lastly made to the petitioner in the year 2008. As
held by the Hon'ble Supreme Court in the aforesaid reported case,
excess payment mistakenly made to an employee cannot be recovered
1412WP6295.16-Judgment 4/4
from the employee after his retirement. In this case extreme hardship
would be caused to the petitioner, if the amount paid to the petitioner
nearly eight years earlier is recovered by the respondents, as the
petitioner stands retired on attaining the age of superannuation in the
year 2008.
7. Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order of recovery is quashed and set aside.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
