Bombay High Court
Shalini Madanlal Bhavsar vs Zilla Parishad Dhule Through Its ... on 2 March, 2017
Bench: R.V. Ghuge
(1) W.P. No. 09756 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 09756 of 2016
District : Dhule
Smt. Shalini w/o. Madanlal Bhavsar,
Age 65 years,
Occupation Pensioner & Household,
R/o. 724-B, near Ganpati Mandir,
Behind Zashi Rani Statue, Shirud,
Taluka & District Dhule. .. Petitioner.
versus
1. Zilla Parishad, Dhule,
Through its Chief Executive
Officer,
District Dhule.
2. Block Development Officer,
Panchayat Samiti, Dhule,
District Dhule. .. Respondents.
...........
Mr. Sachin S. Deshmukh, Advocate, for the petitioner.
Mr. Rahul S. Pawar, Advocate, for respondent
nos.01 and 02.
...........
CORAM : RAVINDRA V. GHUGE, J.
DATE : 02ND MARCH 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith and
heard finally by the consent of the parties.
(2) W.P. No. 09756 of 2016
02. While issuing notice, I had considered the
submissions of the learned Advocate for the
petitioner and had recorded the same in my order
dated 28.09.2016 as follows :-
"01. The petitioner has challenged the order dated
21.10.2015 by filing this petition on 14.09.2016, praying for
staying the impugned order.
02. It is submitted that the deceased husband of the
petitioner Madanlal Suklal Bhavsar was receiving family
pension @ 4,610/-. After he passed away on 21.10.2002, the
pension was being paid to the petitioner's wife. Accidentally,
from 06.12.2008, the petitioner received an amount of
family pension of Rs. 7,566/- per month instead of Rs.
4,610/-.
03. It was noticed in October 2015, that the respondent /
Zilla Parishad had inadvertently paid Rs. 3,96,577/- in excess
and hence by the impugned order, recovery of the amount
by deducting Rs. 5,000/- per month from the family pension
has been commenced.
04. The petitioner places reliance upon the view taken by
the Hon'ble Supreme Court Syed Abdul Qadir and others Vs.
State of Bihar and others, 2009(3) SCC 475 and State of
Punjab and others Vs. Rafiq Masih (White Washer) etc.
(2015) 4 SCC 334 = AIR 2015 SC 696 .
05. Issue notice before admission to the respondents,
returnable on 25.10.2016. Considering the fact situation as
above, and that the impugned order has been challenged
after one year, there shall be no interim relief at this stage.
Issue of maintainability of this petition is kept open. "
(3) W.P. No. 09756 of 2016
03. Upon my refusal to grant interim relief, the
petitioner had approached the Hon'ble Supreme Court
in Petition for Special Leave to Appeal (C) No.
36828/2016. By order dated 05.01.2017, the Hon'ble
Apex Court dismissed the Special Leave Petition and
did not grant any interim relief to the petitioner
which she had claimed before this Court.
04. Learned Advocate for the respondent - Zilla
Parishad and the Block Development Officer, on
instructions, states that his submission can be
recorded as under :-
(a) The rule is that, after 07 years of the death of
the employee, the pension which is being paid to the
legal heir, is reduced from 100 % to 70 %.
Consequentially, the pension which the petitioner was
receiving till 21.10.2009, would be reduced by 30 %
from 22.10.2009 onwards.
(b) By oversight, the above stated reduction was not
effected and consequentially, over a period of about
06 years, the petitioner earned Rs. 3,96,577/- in
excess which she is not legitimately entitled to.
(c) It cannot be said as on date, that the petitioner
has fraudulently acquired excess payment.
(d) The petitioner has herself submitted an
application dated 14.10.2015 by way of an undertaking
(4) W.P. No. 09756 of 2016
that in the event, she has received or is receiving
excess pension amount, the Zilla Parishad would be
entitled to recover the said amount from her in
equated monthly instalments and the lowest possible
instalment may be settled since the petitioner has to
survive in the pension amount.
(e) An amount of Rs. 1500/- per month can be a
reasonable instalment and the Zilla Parishad is
willing to recover the excess payment from the
petitioner by the smallest monthly instalment that is
possible.
05. Shri Deshmukh, learned Advocate for the
petitioner, has placed heavy reliance upon the
judgment of the Hon'ble Apex Court in the matter of
State of Punjab & others Vs. Rafiq Masih (White Washer) &
others [(2015) 4 SCC 334]. He draws my attention to
paragraph 18 of the judgment of the Hon'ble Apex
Court which reads as under :-
" 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 hereinabove, we may, as a
ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law :
(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C and
Group D service).
(5) W.P. No. 09756 of 2016
(ii) Recovery from the retired employees, or
the employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from the 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."
06. There is no dispute that the petitioner has
received an excess amount which legitimately does not
belong to her and which she cannot legitimately
claim. It was by oversight of the respondent that
the reduction of the pension as per rules, from 100 %
to 70 % was not carried out. Without effecting the
reduction by 30 %, the whole amount was being paid to
the petitioner from the State exchequer.
07. In a recent judgment delivered by the
Hon'ble Apex Court in the matter of High Court of
Punjab and Haryana & others Vs. Jagdev Singh [AIR 2016 SC
3523], it was concluded by the Hon'ble Apex Court,
(6) W.P. No. 09756 of 2016
that notwithstanding the view taken in State of Punjab
& others (supra), if an employee or the beneficiary
has issued an undertaking that if the payment is made
in excess, same could be recovered or refunded, then
the establishment cannot be precluded from recovering
the said amount. Paragraphs 11, 12 and 13 of the
judgment delivered in the matter of High Court of
Punjab & Haryana & others (supra) read as under :-
"11. The principle enunciated in proposition (ii) above
cannot apply to a situation such as in the present case. In
the present case, the officer to whom the payment was
made in the first instance was clearly placed on notice that
any payment found to have been made in excess would be
required to be refunded. The officer furnished an
undertaking while opting for the revised pay scale. He is
bound by the undertaking.
12. For these reasons, the judgment of the High Court
which set aside the action for recovery is unsustainable.
However, we are of the view that the recovery should be
made in reasonable instalments. We direct that the
recovery be made in equated monthly instalments spread
over a period of two years.
13. The judgment of the High Court is accordingly set
aside. The Civil Appeal shall stand allowed in the above
terms. There shall be no order as to costs. "
08. The petitioner herself has tendered an
application dated 14.10.2015 which is before the
filing of this Writ Petition dated 14.09.2016, that
if the Zilla Parishad has noticed any excess
payments, they would be at liberty to recover the
said amount from the petitioner by settling the
lowest monthly instalment. It cannot be ignored that
after the petitioner tendered this application on
14.10.2015, the respondent commenced recovery by
(7) W.P. No. 09756 of 2016
instalments from the petitioner. Thereafter, in
September 2016, the petitioner has filed this
petition.
09. I find that the voluntary undertaking filed
by the petitioner on 14.10.2015, agreeing for the
recovery of the excess amount can be considered to be
a consent for recovering the excess amount. This
fact would, therefore, be covered by the view taken
by the Hon'ble Apex Court in the judgment delivered
in the matter of High Court of Punjab & Haryana & others
(supra).
10. Considering the above, I do not find any
reason to stall the recovery of the amount of excess
payment. However, the request of the petitioner can
be entertained that the lowest possible instalment be
settled so that she would get a substantial amount of
pension. The statement made by the learned Advocate
for the respondent - Zilla Parishad, on instructions,
that the instalment could be Rs. 1500/- per month, is
accepted.
11. In the light of the above, this petition is
partly allowed only to the extent of reducing the
monthly instalment of recovery from Rs. 5000/- to Rs.
1500/- per month commencing from March, 2017. The
respondent would, therefore, continue to recover the
excess amount from the petitioner, however, by
settling the monthly instalment at Rs. 1500/-.
(8) W.P. No. 09756 of 2016
12. This petition is partly allowed to the
extent set out above and rule is made partly absolute
accordingly.
( Ravindra V. Ghuge )
JUDGE
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puranik / WP9756.16
