Bombay High Court
Tukaram Gopal Pinjan vs The State Of Maharashtra And ... on 9 March, 2016
Bench: R.M. Borde
1 WP No. 9420/15
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9420 OF 2015
Tukaram S/o Gopal Pinjan,
Age : 59 years, Occu. Nil (Retired),
R/o: C/o Shri Babasaheb G. Salunke,
Shivaji Nagar Garkeda Parisar,
Aurangabad. .. Petitioner.
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Water Supply and Sanitation
Department, Mantralaya,
Mumbai-32.
2. The Member Secretary,
Maharashtra Jeewan Pradhikaran
Express Tower, Nariman Point,
Mumbai-32.
3. The Chief Administrative Officer,
Maharashtra Jeewan Pradhikaran
CIDCO Bhavan, Belapur,
New Mumbai.
4. The Executive Engineer,
Maharashtra Jeewan Pradhikaran
Jal-Vyavasthapan Vibhag
Nashik.
5. The Dy. Chief Account Officer (II)
Maharashtra Jeewan Pradhikaran
CIDCO Bhavan, Belapur,
Mumbai. ..Respondents.
...
Mr. R.P.Bhumkar, Advocate for petitioner;
Mr. S.B. Pulkundwar, AGP for Respondent No.1 / State
Mr. Deepak P. Bakshi, Advocate for Respondent Nos.2
to 5.
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2 WP No. 9420/15
CORAM : R.M.BORDE &
P.R.BORA,JJ.
DATE :
9 th
March,2016.
JUDGMENT (PER:- P.R.BORA,J.)
1) Heard. Rule. Rule made returnable
forthwith. With the consent of learned Counsel for
the parties, the petition is taken up for final
disposal at admission stage.
2) By filing the present petition the
petitioner has taken exception to recovery of the
amount of Rs.1,32,751/-, directed to be recovered
from the pension amount of the petitioner. As is
revealing from the contents of the petition, the
recovery amount, as aforesaid, is towards excess
amount allegedly paid to the petitioner because of
the wrong fixation of his pay w.e.f. 1.1.2006. It is
the contention of the petitioner that since he stood
retired from the services of the respondents w.e.f.
30th June, 2014 after attaining the age of
superannuation, no recovery can be directed from his
pension amount even if any excess amount would have
been paid to him because of wrong fixation of pay as
alleged by the respondents in view of the law laid
down by the Hon'ble Apex Court in the case of State
of Punjab and Ors. Vs. Rafiq Masih - reported in 2015
(4) SCC 334 (Civil Appeal No. 11527 of 2014 with
other connected appeals decided on 18
th
December,
2014.) The petitioner has further contended that his
pay was rightly fixed w.e.f. 1.1.2006 and it was not
required to be revised. It is the further contention
of the petitioner that before carrying out the re-
fixation of his pay and directing the recovery of the
amount, alleged to have been paid in excess, no
notice or opportunity of hearing was given to the
petitioner by the respondents. The petitioner has,
therefore, prayed for the directions against the
respondents not to recover the said amount.
3) The respondents though have raised the
objection as regards to the jurisdiction, in view of
the fact that the petitioner is stated to be residing
at Aurangabad after his retirement, the objection
deserves to be rejected. The respondents hae not
made any submission as regards to the other
contentions raised in the petition.
4) From the material placed on record by the
petitioner, there seems no dispute that the
petitioner stood retired from the post of Fitter
(Class-III employee) on 30th June, 2014 after
attaining the age of superannuation. It is further
not in dispute that the recovery of the amount of
Rs.1,32,751/- has been directed against the
petitioner from his pension amount after his
retirement.
5) In view of the admitted facts, as aforesaid,
the order of recovery cannot be sustained in view of
the law laid down by the Hon'ble Apex court in the
case of State of Punjab and Ors. Vs. Rafiq Masih
(cited supra). In the aforesaid judgment, the
Hon'ble Apex court has summarized 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 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 instant case, the petitioner is
admittedly a Class-III employee. There is further no
dispute that the alleged recovery is directed against
the petitioner after his retirement and the recovery
so directed is of the period in excess of five years
before passing of the order of the recovery.
7) In the above circumstances, the order passed
by the respondents directing recovery of
Rs.1,32,751/- from the pension amount of the
petitioner towards the excess payment allegedly made
to the petitioner because of wrong fixation of pay,
is quashed and set aside. The petition stands
disposed of. Rule is made absolute in aforesaid
terms.
sd/- sd/-
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
bdv
fldr 8.3.2016
