Bombay High Court
Shinde Balasaheb Sonaji vs The State Of Maharashtra And ... on 26 February, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 9246 OF 2014
WITH
CIVIL APPLICATION NO.15149/2015
IN
WP/9246/2014
Shinde Balasaheb Sonaji,
age 64 years, occu. Pensioner,
Matruchaya Housing Society,
Undirgaon, Post Haregaon,
Dist. Ahmednagar. ..PETITIONER.
VERSUS
1. The State of Maharashtra,
through Secretary,
Education Department,
Mantralaya, Mumbai -32.
2. The Accountant General,
Accounts & Entitlements - I
Pratishtha Bhavan (Old CGO Building),
101, Maharshi Karve Marg,
Mumbai 400 020.
3. The Education Officer,
Primary, Zilla Parishad,
Ahmednagar.
4. Catholoc Marathi Shala,
Tilaknagar, Tq. Rahata,
Dist. Ahemadnagar,
through : The Head Master. ..RESPONDENTS.
...
Advocate for Petitioner : Mr.Dhongade Suresh D.
AGP for Respondents: Mr.S.D. Kaldate.
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Advocate for Respondent 2 : Mr.Kulkarni Bhushan B.
...
CORAM : S.S. SHINDE & P.R. BORA, JJ.
Dated: 26th FEBRUARY, 2016.
ORAL JUDGMENT: (PER SHINDE,J)
1.
Rule. Rule is made returnable forthwith. By consent
of the parties, taken up for final hearing.
2. Heard learned Counsel for the parties, perused
pleadings in the petition, annexures thereto, including
copies of the communication received by the petitioner from
the Office of the Accountant General, Nagpur, which are
placed on record by the petitioner. Upon careful perusal of
the letter written by the Deputy Accountant General and
Public Information Officer dated 20th June, 2014 addressed
to the petitioner, it is mentioned that, service period of the
petitioner from 1st June, 1992 to 21st December, 2001 is
required to be treated as break period and accordingly,
employer of the petitioner was asked to submit reply /
clarification in that respect. The relevant portion of the said
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letter reads, thus:
" As per rule 47 of MCS (Pension) 1982
interruption in the service entails forfeiture of past
service. Accordingly, regarding counting of period of
absence from 01/06/1992 to 21/12/2001 as break
period it is stated that this office had already
communicated your department and asked for
clarification regarding counting of break period.
However the reply is still awaited from the
department."
3.
It appears that, the petitioner herein instituted
Regular Civil Suit No.155/93 and sought a declaration that
the order of transfer is illegal and without authority. Upon
perusal of the documents placed on record, it appears that,
the said suit was decreed and being aggrieved, respondents
preferred first appeal, which was allowed. Being aggrieved
thereby, the petitioner preferred Second Appeal No.408 of
1999 (Shri Balasaheb s/o Sonaji Shinde Vs. 1 St. Teresa
Church, Harigaon, at Harigaon, Tq. Shrirampur and Ors.) The
said second appeal was heard finally and decided on 21 st
December, 2001. The operative part of the said judgment
reads, thus:
"7. In view of the consensus made hereinabove, I
pass the following order:
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(i) The Second Appeal stands dismissed.
(ii) The appellant shall join the duties as primary
school teacher in P.J.S.S. School at Kendal within a
period of one week from today.
(iii) The appellant shall be entitled to continuity of
service together with all incidental and ancillary
benefits flowing therefrom.
(iv) The appellant shall not be entitled to receive the
back wages for the period from 25.04.1992 till he
(v)
joins the duty.
There shall be no order as to costs."
4. Upon careful perusal of the Clause (iii) of the said
operative part of judgment dated 21st December, 2001 in
Second Appeal No.408 of 1999, it is abundantly clear that in
no uncertain words, the High Court ordered that, the
appellant shall be entitled to continuity of service together
with all incidental and ancillary benefits flowing therefrom.
The period which was under consideration in the said
Second Appeal was the period from the order of transfer /
Institution of Suit till the second appeal was decided.
Therefore, it was not open for the office of the Accountant
General to hold that, as per Rule 47 of MCS (Pension) 1982
interruption in the service entails forfeiture of past service
and therefore, while counting period of absence from
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01/06/1992 to 21/12/2001, the same be treated as break
period in the service and accordingly the petitioner is
entailed to receive the benefits. In fact, the said observation
in the impugned communication dated 20 th June, 2014
addressed by the Deputy Accountant General & Public
Information Officer directly runs contrary to the clause (iii)
of the operative order of the judgment dated 21 st December,
2001 in Second Appeal No.408 of 1999. The office of the
Accountant General was bound to act as per the directions
issued by the High Court in the aforesaid judgment passed
in the said second appeal and it was not permissible for the
said authority to take a different view than to grant
continuity of service as ordered by the High Court, for the
aforesaid period.
5. At this stage, the learned Counsel for the petitioner,
relying upon the contents of the Civil Application, submits
that, the amount of Rs.2,37,093/- be ordered to be refunded
to the petitioner with interest.
We have also considered the controversy involved in
the petition keeping in view the fact that, the petitioner
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stood retired as an Assistant Teacher on 31 st May, 2008.
Admittedly, the post which was occupied at the time of
retirement was class III. The Supreme Court in case of
State of Punjab and others etc. v. Rafiq Masih (White
Washer) etc.1, observed in para 12, thus:
"12. 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 within one year,
of the order of recovery.
(iii) Recovery from employees, when the
excess payment has been made for a period in
1 AIR 2015 SC 696;
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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 In the light of above, the impugned communication
issued by the Office of the Accountant General addressed to
the petitioner and also the parent department of the
petitioner, observing that, the period from 01/06/1992 to
21/12/2001 should be treated as break in service of the
petitioner, is quashed and set aside.
We are not inclined to accept the prayer of the
petitioner for payment of interest. However, we direct the
respondents to refund the amount of Rs.2,37,093/- to the
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petitioner, as expeditiously as possible; however, within
eight weeks from today. Needless to observe that, in case,
the said amount is not paid within the period of eight weeks
from today, on expiry of the said period, the respondents
shall pay 9% interest on the said amount till the same is
actually paid to the petitioner.
Petition as also the civil application are allowed in
above terms. Rule made absolute, accordingly with no order
as to costs.
( P.R. BORA, J. ) ( S.S. SHINDE, J. )
Kadam/*
