Ravindra Ramchandra Patil vs The State Of Maharashtra And ...
2017 Latest Caselaw 4663 Bom

                                                                  W.P.No.5367/2016
                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                         WRIT PETITION NO. 5367 OF 2016

Ravindra s/o Ramchandra Patil,
Age 62 years, Occu. Retired A.S.I.,
R/o 5/56-K, Khotenagar, Jalgaon                          .. Petitioner

        Versus

1.      The State of Maharashtra,
        through its Secretary,
        Home Department, Mantralaya,
        Mumbai - 32

2.      Director General of Police,
        Maharashtra State, Mumbai

3.      Inspector General of Police,
        Nasik Region, Nasik

4.      District Superintendent of Police,
        Jalgaon

5.      Principal Accountant General
        (A & E), Maharashtra, Mumbai-20                  .. Respondents

Mr P.B. Patil, Advocate for petitioner Mr V.S. Badakh, A.G.P. for respondents no.1 to 4 Respondent no.5 served

CORAM : R.M. BORDE AND A.M. DHAVALE, JJ

DATE : 18th July 2017

ORAL JUDGMENT (Per R.M. Borde, J.)

1. Rule. Rule returnable forthwith. With the consent of parties,

petition is taken up for final disposal at admission stage.

2. The petitioner is objecting to the order dated 12 th January 2012

directing recovery of amount of Rs.1,02,554/-, allegedly paid to the

petitioner in excess of his entitlement together with interest at the

rate of 18% per annum. The petitioner contends that since the

W.P.No.5367/2016

amount has already been recovered out of the gratuity amount, the

respondents be directed to refund the amount of Rs.1,02,554/- to the

petitioner along with interest at the rate of 18% per annum from the

date of deduction till realisation of amount.

3. The petitioner was in employment as Assistant P.S.I. in the

Police department at the time of his retirement. The petitioner retired

on attaining age of superannuation on 31 st May 2012. It is the

contention of the petitioner that initial pay fixed by the respondents at

the time of his induction in employment, on 1 st January 1986 has been

directed to be revised by an order issued on 29 th December 2003. It

was also directed in the said order that the excess amount paid to the

petitioner as a result of wrong fixation of pay since 1 st January 1986

shall be recovered. The order passed by the respondent on 29 th

December 2003 was recalled in view of the subsequent order issued

on 29th November 2005. It was also directed that the amount

recovered from the salary payable to the petitioner as a result of the

order issued in the year 2003 shall be repaid to him. A separate order

directing the repayment of amount of Rs.7,000/- recovered from the

monthly salary of the petitioner was issued on 2 nd May 2006. In view

of the impugned order passed on 12 th January 2012, the respondent

again directed to revise pay fixed w.e.f. 1 st January 1986 and the

respondent, by virtue of order dated 12 th January 2012, virtually

reverted back to the position existing on the date of issuance of the

first order dated 29th December 2003. The pay of the petitioner was

fixed on 1st February 1987 at Rs.1,070/- instead of Rs.1,130/-. The

position appearing prior to the order issued on 29 th December 2003

W.P.No.5367/2016

was reversed in view of the order dated 29 th November 2005, which

has again been rolled reverted back to the initial position by virtue of

the order issued in 2003. The respondents, it appears are shifting

stand from time to time in respect of entitlement of the petitioner to

receive the salary w.e.f. 1 st January 1986. It must be noted that the

petitioner was in fact due to retire within few months on the date of

issuance of the adverse order dated 12th January 2012 and has

actually retired on attaining age of superannuation on 31 st May 2012.

By virtue of the order passed on 12 th January 2012, recovery of

alleged excess amount paid to the petitioner to the tune of

Rs.1,02,554/- has been made out of the amount of gratuity. It is

impermissible to direct revision of the pay-scale and recovery of

amount allegedly paid in excess of the entitlement to the petitioner,

who is Group 'C' employee while he was on the verge of retirement.

The principle laid down by the Apex Court in the matter of State Of

Punjab & Ors vs Rafiq Masih (White Washer) reported in 2015

(4) SCC 334 squarely applies to the instant matter. In the reported

matter, Supreme Court has laid down the guidelines in respect of

recovery of the amount from the employee and has serialised the

situation whereunder it would be impermissible in law to recover the

amount. It is laid down by the Supreme Court that in following

circumstances, it would be impermissible for the employer to recover

the amount from the employee:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

W.P.No.5367/2016

(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.

4. Considering the facts and circumstances of this case, we are of

the opinion that the case of the petitioner is covered by clauses (i), (ii)

(iii) and (v) as recorded above in the judgment of State Of Punjab &

Ors vs Rafiq Masih (cited supra). The petitioner is Group 'C'

employee and at the time of issuance of the order directing recovery,

he was due to retire within a period of few months and that the excess

amount that has been directed to be recovered, was paid to him

during the period in excess of five years prior to the issuance of order

of recovery.

5. It is contended on behalf of respondents that in the year 2009,

the petitioner had given an undertaking to the effect that the excess

amount paid to him could be recovered from the monthly salary

payable to him.

W.P.No.5367/2016

6. It must be noted that the petitioner was paid alleged excess

amount from 1986 onwards and the order directing recovery issued

for the first time in 2003 was recalled in 2005 and the excess amount

allegedly paid to the petitioner, which was directed to be recovered by

virtue of order passed in 2003, was also recovered from him in the

year 2006. The alleged so called undertaking recorded in the year

2009 has, in fact, no relation with the orders passed in the instant

matter regarding re-fixation of pay of the petitioner and the order of

recovery, which was recalled in the year 2005 by the respondent. The

contentions raised in the affidavit-in-reply are quite misleading and do

not reflect the real facts. Reliance is also placed on the judgment

delivered by the Supreme Court in the matter of High Court of

Punjab and Haryana and ors. Vs. Jagdev Singh, reported in

(2016) 14 SCC 267. In the reported matter, there was admittedly

undertaking furnished by the Judicial Officer while opting for revised

pay-scale that he would refund the excess amount paid and thus, was

held bound by the undertaking. The reported matter relates to

revision of the pay-scale and the option was exercised by the Judicial

Officer in favour of the revised pay-scale proposed by the respondent

and there was also undertaking recorded by the employee in favour of

the State. In the instant matter, firstly, the distinguishing feature is

that the Judicial Officer who had approached, Supreme Court cannot

be said to be Group 'C' employee and as such, principle laid down in

the matter of High Court of Punjab & Haryana (cited supra) is not

applicable in the instant case. The instant case is squarely covered by

the judgment in the matter of State of Punjab (cited supra). The

W.P.No.5367/2016

decision on which reliance is placed by the respondents is wholly

inapplicable.

7. It also must be noted that recovery of the amount from the

gratuity receivable by the petitioner is also illegal and impermissible.

8. For the reasons recorded above, the writ petition deserves to be

allowed and same is accordingly allowed.

9. Respondents are directed to refund the amount of Rs.1,02,554/-

recovered from the gratuity amount paid to the petitioner, together

with interest at the rate of 10% per annum from the date of recovery

till realisation, as expeditiously as possible, preferably within six

months from today.

10. Rule is made absolute to the extent specified above. There

shall be no order as to costs.

       ( A.M. DHAVALE, J.)                    ( R.M. BORDE, J.)


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