Bombay High Court
Lata Gajanan Wankhede vs State Of Maharashtra Thr. ... on 1 July, 2016
Bench: V.A. Naik
WP2648.16 [J].odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2648 OF 2016
Lata Gajanan Wankhede,
Aged about 51 years,
Occupation-Retired Assistant Teacher,
R/o. New Khetan Nagar, Near Vitthal
Mandir, Kaulkhed, Akola,
Tahsil and District - Akola. .. Petitioner
.. Versus ..
1] State of Maharashtra, through its
Secretary, Department of General
Administration, Mantralaya,
Mumbai-32.
2] Zilla Parishad, Akola, through its
Chief Executive Officer.
3] Senior Accounts Officer,
Zilla Parishad, Akola,
Tahsil and District - Akola.
4] Education Officer (Primary),
Zilla Parishad, Akola,
Tahsil and District - Akola. .. Respondents
..........
Shri A.S. Dhore, counsel for the petitioner,
Shri J.Y. Ghurde, AGP for respondent no.1,
Shri Kiran Malokar, counsel for respondent nos.2 to 4.
..........
CORAM : SMT. VASANTI A. NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATED : JULY 01, 2016.
ORAL JUDGMENT : (Per : MRS. SWAPNA JOSHI, J.)
Rule. Rule is made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned counsel for the
parties.
By this writ petition, the petitioner has sought a declaration that
the action on the part of the respondents in recovering the excess amount that
was mistakenly paid to the petitioner while in service, after her retirement, is
grossly illegal and is liable to be set aside.
The learned counsel for the petitioner vehemently argued that the
respondents are not justified in seeking the recovery of the amount of
Rs.3,04,475/- which was wrongfully paid to the petitioner while in service,
after the petitioner is voluntarily retired from the service. The learned counsel
placed reliance upon the judgment reported in AIR 2015 SC 696 in the case of
State of Punjab and others .vs. Rafiq Masih and contended that an amount
mistakenly paid to an employee in excess, while in service and without his
misrepresentation, cannot be recovered from the employee after his
retirement.
The learned counsel for the respondents do not dispute the
position of law as laid down by the Hon'ble Apex Court.
After hearing both the sides and on a perusal of the judgment
reported in AIR 2015 SC 696 (supra), it is noticed that in that case, all the
employees in the bunch of cases, were given monetary benefits, which were in
excess of their entitlement. These benefits flowed to them, consequent upon a
mistake committed by the concerned competent authority, in determining the
emoluments payable to them. All the private respondents were beneficiaries of
a mistake committed by the employer, and on account of the said
unintentional mistake, the employees were in receipt of monetary benefits,
beyond their due. The payment of higher dues to the employees in all those
cases, was not on account of any misrepresentation made by them, nor was it
on account of any fraud committed by them. The issue before the Hon'ble
Apex Court was, whether all the private respondents, against whom an order
of recovery (of the excess amount) has been made, should be exempted in law,
from the reimbursement of the same to the employer. It was held by the
Hon'ble Supreme Court that the amount paid to the employee in excess by
mistake, while in service and without his misrepresentation, cannot be
recovered from the employee, after his retirement.
It is clear from the above said case law that an amount mistakenly
paid to an employee in excess, while in service and without his
misrepresentation, cannot be recovered from the said employee after his
retirement. In view of the law laid down by the Hon'ble Apex Court, the
respondents would not be entitled to recover the excess amount paid to the
petitioner towards salary and other benefits, while the petitioner was in
service, after her retirement.
In view of the aforesaid circumstances, it is hereby declared that
the respondents would not be entitled to recover the excess amount paid to the
petitioner towards the salary and other benefits, while the petitioner was in
service, after her retirement.
Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE JUDGE
Gulande
