Bombay High Court
Uttam Devidasrao Wakodkar vs The State Of Maharasthra And ... on 1 September, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8891 OF 2015
Uttam S/o Devidasrao Wakodkar,
Age : 62 Years, Occu. : Retired,
R/o Ragini Housing Society,
Mandwa Road, Ambajogai. .. Petitioner
Versus
1.
The State of Maharashtra,
Through its Secretary,
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director, Higher Education,
Maharashtra State, Pune.
3. The Joint Director, Higher Education,
Aurangabad Region, Aurangabad.
4. The Accountant General, Nagpur.
5. The Accountant General, Mumbai. .. Respondents
Ms. Sneha Kamble, Advocate h/f Shri S. V. Adwant, Advocate for
the Petitioner.
Ms. S. S. Raut, A.G.P. for Respondent Nos. 1 to 5.
CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
DATE : 01ST SEPTEMBER, 2016.
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ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule returnable forthwith. With the consent of
parties, taken up for final hearing.
2. The present writ petition is restricted to the extent of
recovery claimed by respondents for an amount of Rs. 77,156/-
from the amount of gratuity of the petitioner.
3.
Ms. Kamble, the learned counsel for the petitioner
strenuously contends that, the petitioner stood retired on
attaining the age of superannuation on 28.02.2013. From the
retiral benefits of the petitioner, respondents sought to recover
Rs. 77,156/- on the ground that benefit of stagnant revision of pay
scale was wrongly given to the petitioner. The learned counsel
for the petitioner submits that, the benefit was granted in the
year 2006. The said benefit is sought to be negatived after the
petitioner has retired from service. The amount cannot be
recovered from gratuity, in view of the bar en-grafted in Sec.
60(1)(g) of the Code of Civil Procedure. The learned counsel
further submits that, even otherwise recovery of an amount even
paid wrongly cannot be made after lapse of five years. The
learned counsel submits that, the recovery would also result in
hardship. The petitioner has superannuated from service and
from his pensionary and retiral benefits, the recovery is sought to
be claimed. The learned counsel relies on the judgment of the
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Apex Court in the case of State of Punjab and others Vs.
Rafiq Masih (White Washer) reported in (2015) 4 SCC
334.
4. The learned counsel submits that, the reliance placed by
respondents on the letter said to have been given by the
petitioner is misplaced. The same is obtained by respondents
from the petitioner at the time of forwarding the pension papers
and the petitioner had no option but to bow to the dictates of
respondents. The learned counsel submits that, the action of
recovery claimed pursuant to the impugned order is illegal and
be quashed and set aside.
5. Ms. Raut, the learned Assistant Government Pleader
submits that, wrongly the benefit was given to the petitioner
with regard to the stagnation increment from year 2006 to 2010
and the recovery is rightly claimed. Knowing fully well that the
said benefit has been wrongly given, the petitioner has given a
consent letter allowing respondents to deduct the amount from
the gratuity and it is pursuant to the said consent letter the
action has been rightly taken. Now the petitioner cannot turn
around and resile from the said fact. The money paid to the
petitioner because of wrong fixation is public money. The same is
tax payers money and the petitioner cannot be allowed to retain
the same. The learned A. G. P. relies on the judgment of the
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Apex Court in a case of Chandi Prasad Uniyal and others
Vs. State of Uttarakhand and others reported in
(2012) 8 SCC 417.
6. We have considered the submissions canvassed by the
learned counsel for respective parties. It is a fact that, the
petitioner stood retired on attaining age of superannuation on
28.02.2013. It also appears that, the petitioner had given consent
letter at the time when his pension papers were not being
processed and request was made to process and forward the
pension papers.
7. In the present matter, it cannot be said to be a fraud played
by the employee or that the some role of the employee can be
attributed for the wrong payment of the amount. The
respondents had given the stagnation increment in the year
2006. The petitioner got the benefit of the same from the year
2006 to 2010 and at the time of retirement of the petitioner on
superannuation the recovery is sought to be claimed from the
gratuity amount. The benefit given prior to five years, is being
recovered from a retired employee from the retiral benefits.
8. The same would tantamount to hardship, as the petitioner
does not have any other source of income than his pension and
retiral benefits. The Apex Court in the case of State of
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Punjab and others Vs. Rafiq Masih (White Washer)
reported in (2015) 4 SCC 334 has laid down following
principles.
18. 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 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
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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.
9. The consent letter sought to be relied by respondents is
undated and from the recitals of the said consent letter, it is
manifest that the same has been given at the time when his
pension papers were not forwarded and request was made by him
to process and forward his pension papers. Certainly, the said
consent letter appears to be on the dictate of the authorities and
prima facie cannot be said on the volition of the petitioner.
10. Be that as it may, even otherwise in view of the judgment
of the Apex Court in the case of State of Punjab and
others Vs. Rafiq Masih (White Washer) referred to
supra said recovery could not have been made, as the petitioner
has fulfilled all the criteria laid down in the said judgment.
11. In the light of the above, the impugned order recovering an
amount of Rs. 77,156/- from the gratuity amount of the petitioner
is quashed and set aside.
12. It is submitted that, recovery is already made. The said
amount be refunded to the petitioner within a period of three (03)
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months from today. In case the payment is not made within three
months as directed, then the respondents would be liable to pay
interest @ Rs. 8% per annum.
Rule accordingly is made absolute in above terms. No
costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Sept. 16
