Bombay High Court
Smt. Ujwala Wd/O. Rupchand Thakre vs Divisional Controller, Maha. ... on 3 March, 2016
Bench: V.A. Naik
1/6 0303WP5876.15-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5876 OF 2015
PETITIONER :- Smt. Ujwala Wd/o Rupchand Thakre, Aged
about 36 Yrs., Occu : Nil, R/o Manapur, Tah.
Ramtek, Dist. Nagpur.
...VERSUS...
RESPONDENTS :- 1. Divisional Controller, Maharashtra State
Road Transport Corporation, Ganesh Nagar,
ig Nagpur.
2. Depot Manager, Maharashtra State Road
Transport Corporation, Ramtek Depot,
Ramtek.
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Mr. A. J. Pathak, counsel for the petitioner.
Mr. V. G. Wankhede, counsel for the respondents.
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CORAM : SMT. VASANTI A. NAIK &
A.S.CHANDURKAR, JJ.
DATED : 03.03.2016
O R A L J U D G M E N T (Per A.S.Chandurkar, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally with the consent of the learned counsel for the parties.
2. The petitioner, who is the widow of one Shri Rupchand
Thakre, has approached this Court challenging the communications
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dated 08/04/2015 and 16/04/2015 by which the respondents intended
to recover certain amounts to which deceased employee was entitled
under the provident fund scheme as well as towards gratuity. This
recovery is sought to be made on the ground that the pay fixation of
said employee had been wrongly done.
3. The husband of the petitioner was employed as a
Conductor with the respondent No.1-Corporation. He expired on
04/06/2014. The petitioner thereafter approached the respondents for
receiving various service benefits including the amounts of gratuity and
provident fund. On 08/04/2015 the respondent No.2 issued a
communication stating therein that the pay fixation that was effected
with regard to the salary of the deceased employee was being cancelled
and, therefore, it was necessary to recover an amount of Rs.4,32,893/-
from the amounts due and payable to the petitioner. By the subsequent
communication dated 16/04/2015, the petitioner was informed to
approach the concerned authorities and deposit the excess amount of
Rs.36,893/-, failing which further steps would be taken in the matter.
The petitioner has, therefore, impugned the aforesaid communications
in the present writ petition.
4. Shri A. J. Pathak, the learned counsel for the petitioner,
submitted that it was not open for the respondents to recover the
amounts alleged to have been overpaid to the husband of the petitioner
in view of the fact that the husband of the petitioner had expired on
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04/06/2014 and the action of recovery was initiated on the basis of an
office order dated 29/10/2014 issued in that regard. It was submitted
that no steps whatsoever for recovering the alleged excess amount was
initiated by the respondents during the lifetime of the husband of the
petitioner. After his death on 04/06/2014, by an order dated
29/10/2014 his salary came to be re-fixed pursuant to which the
recoveries were sought to be made. Placing reliance upon the judgment
of the Hon'ble Supreme Court in the case of State of Punjab and
others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334,
it was submitted that the husband of the petitioner was holding the post
of Conductor which was a Class-III post. He submitted that it has been
held by the Hon'ble Supreme Court in the aforesaid judgment that in
case of hardship, recovery of excess payment would be impermissible in
law and the present is a case where the recovery if made would cause
hardship to the petitioner, who was a widow. It is, therefore, submitted
that the impugned communications are liable to be set aside.
5. Shri V. G. Wankhede, the learned counsel for the
respondents, on the other hand, submitted that the writ petition does
not deserve to be entertained, as an alternate remedy was available to
the petitioner under the provisions of the Payment of Gratuity Act,
1972. It was also submitted that certain disputed questions arise for
consideration and hence the writ petition may not be entertained.
Relying upon the judgment of the Punjab and Harayana High Court in
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the case of Punjab State Power Corporation Limited, Patiala v.
Employees' State Insurance Corporation, Chandigarh & Anr. 2015 II
CLR 449, it was submitted that the petitioner deserves to be relegated
to avail the alternate remedy. Even otherwise, he submitted that as
there was some over payment made to the husband of the petitioner,
the same was liable to be recovered.
6. Having heard the respective counsel and having perused
the impugned communications, we are of the view that the petitioner is
entitled for grant of relief.
7. The rule with regard to availing an alternate remedy, if
available, is not an absolute rule and is subject to exceptions, especially
when it is found that the impugned action is against the law as settled
by the Hon'ble Supreme Court. The facts of the present case are such
that the petitioner cannot be relegated to avail the alternate remedy.
The husband of the petitioner expired on 04/06/2014. After his death,
on 29/10/2014 the respondents re-fixed the salary of the husband of
the petitioner. Thereafter, the excess payments were sought to be
recovered. In Rafiq Masih (supra), the Hon'ble Supreme Court while
referring to certain situations wherein recovery sought by the employer
would be impermissible, held that recovery from the employees
belonging to Class-III and Class-IV service as well as recoveries where
the Court arrives at a conclusion that the recovery if made would be
iniquitous or harsh or arbitrary to such an extent as would far outweigh
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the equitable balance of the employer's right to recover were some such
situations.
8. The present is a case where the recoveries if directed
would be iniquitous, harsh and also arbitrary to the extent that the
same would outweigh the equitable balance of the employer's right to
recover. As stated above, the entire exercise of re-fixing the salary of
the petitioner's husband as well as the consequent action of recovery
was initiated after the death of the petitioner's husband. This aspect
itself renders the impugned communications iniquitous and harsh.
Moreover, the husband of the petitioner was holding a Class-III post
with the respondents. It is not the case of the respondents that the
petitioner's husband was in any manner responsible for the over
payment. In this background, therefore, by following the law as laid
down by the Hon'ble Supreme Court in Rafiq Masih (supra) we find
that the order of recovery of amounts from the petitioner would be
impermissible in law.
9. Having found the impugned exercise of seeking to recover
the amount of alleged excess payment from the petitioner to be contrary
to the law laid down by the Hon'ble Supreme Court, the plea that an
alternate remedy is available to the petitioner would pale into the
background. Once it is found that the impugned action itself is contrary
to the law as laid down by the Hon'ble Supreme Court, no useful
purpose would be served in relegating the petitioner to avail the
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alternate remedy. The ratio of the judgment in Punjab State Power
Corporation Ltd. (Supra) cannot be made applicable to the case in
hand. Hence, we are inclined to exercise discretion by entertaining the
writ petition.
10. In view of aforesaid, it is held that the impugned action
seeking to recover the alleged over payment to the husband of the
petitioner after his death is contrary to law. The communications dated
08/04/2015 and 16/04/2015 are quashed and set aside. The
respondents shall release the amount of gratuity of Rs.3,96,000/- within
a period of six weeks from today. Other unpaid dues, if any, shall also
be paid to the petitioner within a period of eight weeks from today.
11. Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
KHUNTE
