Waman Bapurao Joshi vs State Of Maha & Ors
2017 Latest Caselaw 5264 Bom

                                                       Writ Petition No.1772/2004
                                        1


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

                        WRIT PETITION NO.1772 OF 2004


 Waman s/o Bapurao Joshi,
 Age 63 years, Occu. Pensioner,
 R/o Malakoli, Tq. Loha,
 District Nanded                                 ...      PETITIONER

          VERSUS

 1)       The Chief Executive Officer,
          Zilla Parishad, Nanded

 2)       The Education Officer (Primary),
          Zilla Parishad, Nanded,
          District Nanded

 3)       The State of Maharashtra,
          through Secretary,
          Education Department,
          Mantralaya, Mumbai

          (Respondent No.3 to be served
          through Govt. Pleader,
          High Court of Bombay,
          Bench at Aurangabad)                   ...      RESPONDENTS

                                 .....
 Shri S.V. Natu, Advocate for petitioner
 Shri S.B. Pulkundwar, Advocate for respondents No.1 & 2
 Shri P.G. Borade, A.G.P. for respondent No.3
                                 .....

                               CORAM:       T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 20th July, 2017.
                  Date of pronouncing judgment : 31st July, 2017


 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. Petitioner, who was Assistant Teacher in respondent

school, has filed this petition for recovery of amount of

Writ Petition No.1772/2004

Rs.48,118/- from the respondent No.1, which are alleged to be

illegally recovered from the pensionary benefit amount of the

petitioner. Initially, petitioner has also sought relief to regularize

his suspension period and to recover the arrears of salary along

with consequential benefits after re-fixation of the salary.

However, at the stage of arguments, learned Advocate for the

petitioner restricted his relief only regarding the recovery of

amount of Rs.48,118/- from the respondents. Respondent No.1

is Chief Executive Officer, Zilla Parishad, Nanded. Respondent

No.2 is Education Officer (Primary), Zilla Parishad, Nanded and

respondent No.3 is State of Maharashtra.

2. Contention of the petitioner in brief is that, during his

service period, though he was appointed on 22/7/1968 as

Assistant Teacher in respondent school, he was placed under

suspension on 8/8/1977 as R.C.C. No.2217/1979 was filed

against him under Section 409 of the Indian Penal Code. In that

matter, the petitioner was acquitted on 24/4/1980. In the result,

he was reinstated w.e.f. 24/10/1980. However, Department

initiated departmental enquiry against the petitioner and as a

result, on 6/6/1981, his one increment was stopped with

permanent effect and amount of Rs.8,048=47 ps. was recovered

from the salary of the petitioner. Thereafter, again petitioner

was suspended on 14/8/1987 as Criminal Case No.87/1989 was

filed against him before Judicial Magistrate, First Class, Kandhar.

Writ Petition No.1772/2004

In that matter also he was acquitted on 24/9/1993 and again he

was reinstated. However, respondents did not regularize the

suspension period from 8/8/1977 to 24/10/1980 as well as

14/8/1987 to 7/2/1994. On 30/9/1999 petitioner retired on

superannuation. However, his suspension period was not

regularized and respondents granted only provisional pension on

account of pendency of Writ Petition No.1055/1999 filed by the

petitioner for the relief of regularization of suspension period and

other consequential reliefs. At last, that Writ Petition was

withdrawn by the petitioner on 19/8/2002. However, later on

the suspension period of the petitioner was regularized by

treating as extraordinary leave without pay. Later on,

respondents deducted amount of Rs.48,118/- from the gratuity

amount payable to the petitioner on his retirement, on account of

release of increments during his suspension period against the

rules. Despite representation submitted by petitioner, the said

amount is not refunded to the petitioner. Therefore, this petition

for refund of the amount of Rs.48,118/-, illegally deducted by

respondents from the gratuity amount of petitioner.

3. By filing affidavit-in-reply, respondents No.1 and 2

opposed this petition on the ground that the surplus amount paid

to the petitioner on account of release of increments during his

suspension period was as per rules and regulations and,

therefore, petitioner cannot claim refund of that amount. As

Writ Petition No.1772/2004

other reliefs claimed by the petitioner have been waived by him,

other objections raised by respondents in respect of those other

reliefs are not considered.

4. Heard learned Advocate for the petitioner and learned

Advocates for respondents. Learned counsel for both parties

have vehemently supported the above respective cases of the

parties. According to respondents, during the suspension of the

petitioner, increments were released against rules and, therefore,

the additional payment received by the petitioner on account of

release of increments deserves to be recovered and accordingly,

the same is legally recovered. However, learned Advocate for

the petitioner submitted that, the petitioner never

misrepresented the respondents at any time for release of his

increments during the suspension period. If any irregularities

have been committed by the office while releasing the

increments of the petitioner during the suspension period, for

that the petitioner cannot be held responsible. Therefore, the

payment received by the petitioner, towards additional released

increments during his suspension period, cannot be recovered.

5. Learned counsel for the petitioner relied on the case

of Syed Abdul Qadir and others Vs. State of Bihar and

others, reported in 2009(3) S.C.C. 475. In that matter at the

time of revision of payscale certain additional increments on

Writ Petition No.1772/2004

promotion to higher post were given. The same were later tried

to be recovered as wrongly paid. In para 28 of the judgment,

Hon'ble Supreme Court observed as under:

"28 Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants- teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants- teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants- teachers should be made."

6. Reliance is also placed on the case of Kusheswar

Nath Pandey Vs. State of Bihar and others, reported in

2013(12) S.C.C. 580. In that matter appellant was given time

bound promotion and after 11 years the authorities woke up to

claim that the time bound promotion was wrongly given, relying

on the rules. Learned Single Judge of the High Court allowed

writ petition holding that the time bound promotion granted to

the appellant 11 years earlier was not because of any fault or

fraudulent act on the part of the appellant and therefore could

Writ Petition No.1772/2004

not be cancelled. In appeal, the Division Bench of the High Court

set aside the judgment of the learned Single Judge. In Appeal to

the Hon'ble Supreme Court, the counsel for appellant relied upon

judgments of the Hon'ble Supreme Court in the case of Bihar

State Electricity Board and another Vs. Bijay Bhadur and

another reported in (2000) 10 S.C.C. 99 and the case of

Purushottam Lal Das and others Vs. State of Bihar and

others, reported in (2006) 11 S.C.C. 492 where it was held

that recovery could be permitted only in such cases where the

employee concerned is guilty of producing forged certificate for

the appointments or got the benefit due to misrepresentation.

Hon'ble Supreme Court observed in Para 10 and 11 as under :

"10. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and then the relevant rules are being relied upon and that too after the appellant had passed the required examination.

11. In our view, this approach was totally unjustified. Learned Single Judge was right in the order that he has passed. There was no reason for the Division Bench to interfere. The Appeal is therefore allowed. The judgment of the Division Bench is set aside. The writ petition filed by the appellant will stand decreed as granted by the learned Single Judge. The parties will bear their own costs."

5. In Babulal Thakre V/s Workload Committee,

Writ Petition No.1772/2004

Jalgaon, reported in 2016 (2) ALL MR 750, Division Bench of

this Court followed above referred decision of the Supreme

Court. Thus, in view of this settled law, when the petitioner is

not responsible for the payment of excess amount to the

petitioner towards additional increments, and as petitioner did

not misrepresent the respondent for release of those increments,

the amount of Rs.48,118/- deducted by respondents from the

gratuity amount of petitioner deserves to be refunded to the

petitioner. It follows that this petition needs to be allowed.

accordingly we pass following order :

ORDER

(i) Writ Petition is allowed. Respondents No.1 to 3 are directed to refund the amount of Rs.48,118/- to the petitioner within a period of three months from the date of this judgment and order.

(ii) In the event of default in refund of above amount, it shall carry interest @ 6% p.a. from the date of default till its realization.

(iii) Rule made absolute on the terms indicated above.

          (SUNIL K. KOTWAL)                   (T.V. NALAWADE)
              JUDGE                                 JUDGE



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