Motiram S/O Dukruji Sonwane vs State Of Maharashtra Through Its ...
2016 Latest Caselaw 54 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        NAGPUR BENCH : NAGPUR.




                                                                                                                  
                                                WRIT PETITION NO.5927 OF  2015




                                                                                      
                   PETITIONER:                            Motiram   S/o   Dukruji   Sonwane,
                                                          Aged  57 yrs.,  Occu : Service R/o
                        
                                                          Plot   No.11,   Raut   Layout,   Near
                                                          Swami   Samarth   Mandir,   Godhni




                                                                                     
                                                          Road, Zingabai Takli, Nagpur.
                                                                       
                                                         -VERSUS-




                                                                   
                   RESPONDENTS:                              1.         State of Maharashtra Through its

Secretary, Department of ig Revenue and Forest Mantralaya, Mumbai-32.

2. The General Manager, Forest Development Corporation of

Maharashtra Ltd. (FDCM), Near Saint Michael high School, Mohan Nagar, Gaddigodam Square, Nagpur.

3. The Managing Director, Forest Development Corporation of

Maharashtra Ltd., 'Rawel Plaza' Building, Kadbi Chowk, Kamptee Road, Nagpur-14.

4. The Divisional Manager FDCM

Ltd., Forest Project Division, Ambazari, Hingna road Nagpur.

Shri P. S. Khubalkar, Advocate for the petitioner.

Ms. Tajwar Khan, Assistant Government Pleader for respondent No.1.

Shri A. M. Sudame, Advocate for the respondent Nos.2 to 4.

                  CORAM:    SMT. VASANTI  A. NAIK
                                                   AND A.S. CHANDURKAR JJ.
                   DATED  :   25TH
                                      FEBRUARY, 2016.





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ORAL JUDGMENT : (Per Smt. Vasanti A. Naik, J)

Rule. Rule made returnable forthwith. The petition is

heard finally with the consent of the learned Counsel for the

parties.

By this petition, the petitioner had sought a

declaration that the petitioner is entitled to the benefits of the time

bound promotion in accordance with the Government Resolution

dated 30-6-1995. The petitioner challenges the order of the

respondent No.4 - Divisional Manager of FDCM dated 24-4-2015

directing the recovery of the excess amount from the salary and

retiral benefits of the petitioner on the ground that the petitioner

was wrongfully granted the benefits of time bound promotion with

effect from 5-1-1997.

The petitioner was appointed as a Clerk in the office of

the respondent No.4 on 2-7-1984. It is stated that the petitioner

was absorbed in the post of Clerk while he was working as Daily

Wager on 27-7-1984. After completing 12 years from 1984, the

petitioner was given the first time bound promotion by the order

dated 21-9-1999 with effect from 5-1-199. The respondents

served upon the petitioner a communication dated 17-11-2014

along with the letter dated 18-9-2014 by which the petitioner was

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informed that the benefits that were granted to the petitioner in

pursuance of the first time bound promotion with effect from

5-1-1997 were sought to be withdrawn. It was informed to the

petitioner by the said communication that the initial appointment

of the petitioner was made on a post earmarked for the Scheduled

Tribes and hence, in view of the Government Resolution dated

30-6-2004, the petitioner was not entitled to the first time bound

promotion on 5-1-1997. The petitioner has challenged the

impugned order so far as it directs the recovery of the excess

amount.

Shri Khubalkar, the learned Counsel for the petitioner

states that the petitioner restricts his claim only to the order of the

respondent No.4 dated 24-4-2015 by which the respondent No.4

has sought the recovery of an amount of Rs.5,03,995/- from the

petitioner towards the amount allegedly paid wrongfully to the

petitioner in view of the grant of the first time bound promotion

with effect from 9-1-1997. It is submitted by referring to the

judgment of the Honble Supreme Court in the case of State of

Punjab and others Vs. Rafiq Masih (white Washer) and others

(2015) 4 Supreme Court Cases 334 that the respondents could not

have sought the recovery of payment that was wrongfully made to

the petitioner when the petitioner is a Class-III employee and is

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due to retire from service in this month. It is submitted that the

recovery cannot be directed from the employees that are due to

retire within one year from the order of recovery. It is stated that

the order of recovery was passed on 24-4-2015 and the petitioner

is due to retire in February 2016. It is stated that the case of the

petitioner stands fully covered by the judgment in the case of Rafiq

Masih (supra) and the respondents may be restrained from making

the recovery of the aforesaid amount from the salary and the

retiral dues that are payable to the petitioner.

Shri Nikhil Joshi, the learned Assistant Government

Pleader appearing on behalf of the respondent No.1 and Shri

Sudame, the learned Counsel for the respondent Nos.2 to 4 do not

dispute the position of law as laid down by the Hon'ble Supreme

Court in the judgment in the case of Rafiq Masih (supra). It is

stated that an appropriate order may be passed in the

circumstances of the case.

It appears on a reading of the judgment of the Hon'ble

Supreme Court in the case of Rafiq Masih (supra) that the

impugned order directing the recovery of an amount of

Rs.5,03,999/- from the petitioner is liable to be quashed and set

aside. The petitioner is a Class-III employee working with the

respondent No.4 and at the fag end of his service i.e. within one

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year from the date of his retirement, the respondent No.4 could

not have directed the recovery of the excess amount that was

mistakenly paid to the petitioner from 4-1-1997 till 28-2-2015. The

respondent No.4 was not justified in seeking the recovery of the

amount of excess payment mistakenly paid to the petitioner when

the petitioner had not fraudulently secured the same. In the

judgment in the case of Rafiq Masih (supra) the Hon'ble Supreme

Court has considered the judgment in the case of Sayed Abdul

Kadir and others vs State of Bihar and others (2009) 3 SCC 475 and

the other judgments of the Supreme Court to summarize the

situation in which the recoveries from the employee would be

permissible. We find on a reading of para 18 of the judgment in

the case of Rafiq Masih (supra) that the recovery of the excess

amount paid to the petitioner could not have been made by the

respondent No.4 in the circumstances of the case.

Hence, for the reasons aforesaid, the writ petition is

partly allowed. The impugned order dated 24-4-2015 is quashed

and set aside. Rule is made absolute in the aforesaid terms with no

order as to costs.

                                       JUDGE                                                 JUDGE 
                  //MULEY//