Bombay High Court
Qamrunnisha Mohammed Hashim vs The Municipal Corporation Of ... on 4 December, 2017
Bench: B.R. Gavai
WP. 2852-16.doc
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. 2852 OF 2016
Qamrunnisha Mohammed Hashim ... Petitioner
Vs.
The Municipal Corporation of
Greater Mumbai & Ors. ... Respondents
***
Mr. M. . Khan a/w Gautam S. Hiranandani, for the Petitioner.
Mr. Sagar Patil, for Respondent Nos. 1 to 4.
Ms. Jyoti Chagan, AGP for Respondent No. 5.
***
CORAM : B. R. GAVAI, &
MANISH PITALE, JJ.
DATE : DECEMBER 4, 2017
ORAL JUDGMENT : [PER : B. R. GAVAI, J.]
1. Heard. Rule. Rule is made returnable forthwith. Learned
counsel Mr. Sagar Patil waives service of notice for Respondent Nos.
1 to 4; learned AGP waives service of notice for Respondent No. 5.
By consent of parties, petition is taken up for final hearing.
2. The Petitioner has approached this Court, praying for a
direction to the Respondent Nos. 1 to 4 to pay an amount of
WP. 2852-16.doc
Rs. 1,56,265/- towards earned leave benefit. The Petitioner also
claims interest alongwith the same. The Petitioner was working in the
Respondent No. 1 as a Head Teacher and she had retired from the
services as a school Teacher in Tardeo Municipal Urdu School,
Mumbai, on 1st July, 2005. According to the Petitioner while paying
her terminal benefit, amount of Rs. 1,56,265/- has not been paid to her.
As such, she has approached this Court.
3. The Respondent Corporation has filed an affidavit in
reply in response to the notice issued by this Court. In the said
affidavit it is stated that the Petitioner has been paid all terminal
benefits. However, insofar as the leave encashment is concerned, it is
stated that Petitioner was entitled to Rs. 1,72,565/- towards leave
encashment + an amount of Rs. 76,794/- towards 6 th Pay Commission
arrears = Rs. 2,49,362/-. However, the Petitioner was paid excess
amount towards FRZ (DA), amounting to Rs. 70,906/-, and was also
paid excessively arrears amount of Rs. 26,343/-. It is therefore, stated
that Petitioner was excessively paid total amount of Rs. 97,249/- by
Respondent No. 1, and as such, the amount of Rs. 1,08,379 = (Rs.
97,249 + 11,130/- towards income tax) has been deducted from the
WP. 2852-16.doc
outstanding amount payable to the Petitioner. It is therefore, submitted
that as such, amount of Rs.1,40,983/- is sanctioned towards leave
encashment.
4. It is an admitted position from the affidavit in reply itself
that an amount of Rs. 1,08,379/- which is payable to the Petitioner
towards leave encashment has been deducted from her entitlement on
the ground that she was paid excess amount in the past. By now, it is
settled position of law that if an excess amount is paid to an employee
on account of erroneous pay fixation, which is not attributable to such
an employee, no such recovery would be permissible in law. In this
reliance placed on the judgment in the case of Syed Abdul Qadir &
Ors., Appellants Vs. State of Bihar & Ors., Respondents1.
. The Apex Court recently in a judgment in the case of
State of Punjab & Ors., Appellants Vs. Rafiq Masih (White washer) &
Ors., Respondents2 has further held that such a recovery either at the
fag end of the career or after retirement of an employee would not be
permissible.
5. In view of the above, we find that the recovery of
1 (2009) 3 Supreme Court Cases 475
2 (2015) 4 Supreme Court Cases 334
WP. 2852-16.doc
Rs.1,08,379/- was not permissible in law.
6. Writ petition is therefore, allowed, holding that recovery
of Rs. 1,08,379/- by Respondent Nos. 1 to 4 from the Petitioner is bad
in law. Respondent Nos. 1 to 4 are directed to pay Rs. 1,08,379/- to
the Petitioner alongwith interest @ 6% per annum from the date on
which the Petitioner was entitled to receive the said amount. The said
amount shall be paid to the Petitioner within a period of four weeks
from today. Rule is made absolute in the aforesaid terms with no
order as to costs.
Sd/- Sd/-
[MANISH PITALE, J.] [B. R. GAVAI, J.]
Vinayak Halemath
