Babruwan Antoba Lokhande vs The State Of Maharashtra And ...
2017 Latest Caselaw 594 Bom

                                        1            WP-4610-16.odt


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                   WRIT PETITION NO.4610 OF 2016

Babruwan s/o. Antoba Lokhande,
Age:65 years, Occ. Pensioner/Retd. Clerk,
r/o. Near New Bus Stand, Georai,
Tq. Georai, Dist. Beed              ..Petitioner
               Vs.
1. The State of Maharashtra,
   through the Accountant Officer,
   Office of the Accountant General, 
   (Accountants and Establishment)-II,
   Nagpur - 44001

2. The District Collector,
   Beed

3. Tahsildar,
   Tahsil Office, Georai,
   Tq. Georai, Dist. Beed                           ..Respondents

                        --
Mr.A.L.Kanade, Advocate for petitioner
Mr.A.R.Borulkar, AGP for respondents 
                        --

                                 CORAM :  T.V. NALAWADE AND
                                          SANGITRAO S. PATIL, JJ. 
                                 DATE  :  MARCH 08, 2017

JUDGMENT (Per Sangitrao S. Patil, J.) :

Rule, returnable forthwith. Heard finally

with the consent of the learned Counsel for the

contesting parties.

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2. The petitioner, who was serving as a

Clerk in Tahsil Office at Georai, has sought

direction against the respondents restraining them

from making recovery of excess payment of pension

of Rs.640/- per month from 01.02.2013 to

31.10.2015 from his pension as mentioned in the

letter dated 15/17.02.2016 issued by respondent

no.1.

3. The learned Counsel for the petitioner

submits that the petitioner retired on 30.06.2009

on attaining the age of superannuation. He was a

Class-III employee. The excess payment of pension

was not made to him because of any fraud played or

representation made by him. It was the mistake of

the office of respondent no.3, due to which excess

payment has been made. He, therefore, submits that

in view of the judgment in the case of State of

Punjab and others etc. Vs. Rafiq Masih (White

Washer) and ors., (2015)4 SCC 334 and the judgment

of this Court in the case of Sumangala d/o.

3 WP-4610-16.odt

Meghashyam Palsikar Vs. The State of Maharashtra

and ors. (Writ Petition No.1941 of 2016) decided

on 09.02.2017, excess payment of pension cannot be

recovered from the petitioner.

4. On the other hand, the learned AGP

relying on the reply filed on behalf of respondent

nos.2 and 3 and particularly, Rule 134-A of the

Maharashtra Civil Services (Pension) Rules, 1982

("the Rules", for short), submits that the

respondents are empowered to recover from the

petitioner the excess amount paid to him due to

any reason whatsoever during the period of his

service or after retirement. He submits that the

excess amount of pension of Rs.640/- per month has

been paid to the petitioner from 01.02.2013 to

31.10.2015, which is liable to be recovered from

him.

5. We are not inclined to accept the

contentions of the learned AGP. The petitioner was

4 WP-4610-16.odt

a Class-III employee. After his retirement, his

income certainly must have reduced to a

considerable extent. If the amount of excess

payment of pension made to him is ordered to be

recovered at this stage, it would certainly put to

him to a great hardship. In the case of State of

Punjab and others (supra), in paragraph 18, it is

observed as under :

12. 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 herein-above, 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).

(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.

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(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."

In view of the circumstances referred to above and

particularly, the circumstances referred to in

Clauses (i) and (ii), the amount of excess payment

of pension made to the petitioner cannot be

allowed to be recovered since such recovery would

be iniquitous, arbitrary and in violation of

Article 14 of the Constitution of India.

Consequently, Rule 134-A of the Rules, in the

facts of the present case, would not come in the

aid of the respondents in getting the excess

payment of pension recovered from the petitioner.

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6. In the result, we pass the following

order :-

(i) The Writ Petition is allowed.

(ii) The respondents are directed not

to recover the excess payment of pension

from the petitioner.

(iii) The respondents would be at

liberty to re-fix the pension of the

petitioner according to law.

(iv) Rule is made absolute in the above terms.

(v) Writ Petition is disposed of. No costs.

         Sd/-                                            Sd/-
[SANGITRAO S. PATIL, J.]                        [T.V. NALAWADE, J.]

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