Bombay High Court
Sunil Sakharam Navghare vs State Of Mah.Thr.Secr.Mumbai And ... on 26 July, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3920/2005
&
WRIT PETITION NO. 3925/2005
WRIT PETITION NO. 3920/2005:
* Sunil s/o Sakharam Navghare
Aged about 40 years, occu: service
R/o Khamgaon, dist. Budana. ..PETITIONER
VERSUS
1) State of Maharashtra
Through its Principal Secretary
Department of Urban Development
Mantralaya, Mumbai-32.
2) Director/ Commissioner,
Municipal Administration
Government Transport Service Building
3rd floor Sir Pochkhanwala Road, Worli,
Mumbai-30.
3) Shri Sunil Soni
Commissioner/ Director
Municipal Administration
Government Transport Service Building
3rd floor Sir Pochkhanwala Road, Worli,
Mumbai-30.
4) Municipal Council
Nagar Parishad, Khamgaon
Through its Chief Officer ..RESPONDENTS
.
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WRIT PETITION NO. 3925/2005:
* Shri Niranjan s/o Dayaram Joshi
Aged about 41 years, occu: service
R/o Khamgaon, Dist. Budana. ..PETITIONER
VERSUS
1) State of Maharashtra
Through its Principal Secretary
Department of Urban Development
Mantralaya, Mumbai-32.
2) Director/ Commissioner,
Municipal Administration
Government Transportation Service Building
3rd floor Sir Pochkhanwala Road, Worli,
Mumbai-30.
3) Shri Sunil Soni
Commissioner/ Director,
Municipal Administration
Government Transportation Service Building
3rd floor Sir Pochkhanwala Road, Worli,
Mumbai-30.
4) Municipal Council
Nagar Parishad, Khamgaon
Through its Chief officer
Khamgaon. ..RESPONDENTS
.
...................................................................................................................
Mr. A.R. Patil, Advocate for the petitioners
Mr. V.P. Maldhure, Assistant Govt. Pleader for Respondent nos. 1 to 3
Ms.K.E.Meshram, Adv. h/for Mr.D.M.Kale, Adv. for respondent no.4
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 25 th
& 26
th
July, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The question involved is of recovery of the amount of salary
difference paid to the petitioners between the pay-scale of Rs. 2000-3500
and Rs.1600-2600 during the period from 1.1.1991 to 18.1.1994.
2. The stand of the respondents was that when the Director
of Municipal Administrator realised the mistake in making the pay-scale
of Rs. 2000-3500 applicable to the petitioners from 1.1.1991, he
reduced the said scale to Rs.1600 -2600 by an order dated 18.1.1994.
It is, therefore, likely that the respondent-Municipal Council may recover
this difference from the pension payable to the petitioner in Writ Petition
No. 3920/2005, who has voluntarily retired from service and the salary
of petitioner in Writ Petition No.3925/2005, who is in service.
3. On 1st July 2017, we had passed an order as under :-
" In view of the subsequent events granting the
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petitioners fixation in the pay scales by an order dated
12.12.2007, it is urged that the order impugned dated
24.6.2005 passed by the Commissioner/ Director,
Municipal Administration in both the petitions may not
survive. Shri Patil, the learned counsel appearing for the
petitioners submits that if the petitions are dismissed, it
may happen that the respondents may act on the basis of
the order impugned in both the petitions and then the
petitioners may be deprived of the scale which is granted
to them on 12.12.2007.
2) In view of the aforesaid position, the learned
Assistant Government Pleader to take instructions in the
matter as to whether the order dated 24.06.2005 can be
quashed and set aside in view of the subsequently order
dated 12.12.2007 or the respondents to make a
statement that they shall not give effect to the order dated
24.06.2005, so that these matters can be disposed off
accordingly.
3) Hence, put up both the matters on 06.07.2017."
4. Mr. V.P. Maldhure, the learned Assistant Government Pleader
submits that his instructions are that the order dated 24.6.2005 passed
by the Director of Municipal Administration shall be given effect to. The
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order impugned directs the Municipal Council to deposit the said amount
in the Government Treasury. It is not the order of recovery from the
salary or pension payable to the petitioners.
5. In the decision of the Apex Court in the case of State of
Punjab and others v. Rafiq (White Washer) and others, reported in (2015)
4 SCC 334, certain guidelines are laid down in respect of recovery of
excess payment made to the employees. The Apex Court has held that in
the matter of recovery of amount paid in excess without fault of
recipient, the conflicting interests are required to be balanced taking into
consideration the hardship which would be caused to an employee and
equitable rights are required to be worked out. Shri Patil, the learned
counsel appearing for the petitioners, submits that in view of the law laid
down by the Apex Court in the aforesaid case, the recovery cannot be
made. As against this, Shri Maldhure, the learned Assistant Government
Pleader appearing for the respondent Nos.1 to 3, has relied upon the
decision of the Apex Court in the case of High Court of Punjab and
Haryana and others v. Jagdev Singh, reported in AIR 2016 SC 3523,
wherein the order of the High Court setting aside the action for recovery
on the ground that there being no fraud or misrepresentation on the part
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of the respondent-employee was held to be improper and the recovery
was directed to be made in reasonable installments. In this decision, the
earlier decision of the Apex Court in the case of Rafiq Masih's case was
distinguished.
6. In the present case, it is not the stand of the respondents that
the petitioners were instrumental in getting the placement in the scale of
Rs.2000-3500 with effect from 1-1-1991. In fact, such a fixation was
approved by the Director of Municipal Administration, who subsequently,
on realizing the mistake, passed an order after a lapse of about 10 years.
It is also not the stand of the respondents that any undertaking to refund
the excess amount was furnished by the petitioners while making the
pay scale of Rs.2000-3500 applicable to them. The petitioner in Writ
Petition No.3920 of 2005 had taken a voluntary retirement from service,
and, if permitted, the recovery shall be from the pension which is due
and payable to him. The petitioner in Writ Petition No.3925 of 2005 is
in service. In view of the law laid by the Apex Court in Rafiq Masih's
case, cited supra, there cannot be recovery of amount paid to the
petitioners.
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7. In view of above, we dispose of the present petitions by
restraining the respondents from recovering the difference in the salary
paid to the petitioners from 1-1-1991 to 18-1-1994.
8. Rule is made absolute in above terms. There shall be no order
as to costs.
JUDGE JUDGE
sahare/lanjewar
