Bombay High Court
The State Of Maharashtra And Ors vs Deepak Laxmanrao Kulkarni on 10 November, 2017
Bench: R.V. Ghuge
(1) WP No.1869/2008 & others (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 1869 OF 2008
1 The State of Maharashtra
2 The Collector, Aurangbad.
3 The Director,
Accounts and Treasuries,
Free Press Journal Marg,
Kutir No.15 & 16,
Opposite Mantralaya,
Mumbai.
4 Dy. Director,
Accounts and Treasury,
Treasury Office, Aurangabad.
5 Senior Treasury Officer,
Treasury Office, Aurangabad.
6 The Secretary,
Planning Department, Mantralaya
Mumbai. Petitioners.
Versus
Sahebkha Rasulkha Pathan
Age : 45 yrs, occu. : service
R/o, c/o Sayeed A. Nabi Talathi,
Nehrunagar, Katkat Gate,
Aurangabad. Respondent.
WITH
WRIT PETITION NO. 1874 OF 2008
1 The State of Maharashtra
2 The Collector, Aurangbad.
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(2) WP No.1869/2008 & others (J)
3 The Director,
Accounts and Treasuries,
Free Press Journal Marg,
Kutir No.15 & 16,
Opposite Mantralaya,
Mumbai.
4 Dy. Director,
Accounts and Treasury,
Treasury Office, Aurangabad.
5 Senior Treasury Officer,
Treasury Office, Aurangabad.
6 The Secretary,
Planning Department, Mantralaya
Mumbai. Petitioners.
Versus
Rangnath Somnath Kadam
Age : 49 yrs, occu. : service
R/o At Post : Lasur Station,
Tal. Gangapur, Dist. Aurangabad. Respondent.
WITH
WRIT PETITION NO. 1891 OF 2008
1 The State of Maharashtra
2 The Collector, Aurangbad.
3 The Director,
Accounts and Treasuries,
Free Press Journal Marg,
Kutir No.15 & 16,
Opposite Mantralaya,
Mumbai.
4 Dy. Director,
Accounts and Treasury,
Treasury Office, Aurangabad.
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(3) WP No.1869/2008 & others (J)
5 Senior Treasury Officer,
Treasury Office, Aurangabad.
6 The Secretary,
Planning Department, Mantralaya
Mumbai. Petitioners.
Versus
Deepak s/o Laxmanrao Kulkarni
Age : 45 yrs, occu. : service
R/o, Gavaliwada, Daulatabad,
Aurangabad. Respondent.
***
Smt. V.S. Chaudhary, A.G.P. for petitioners in all three Petitions.
Mr. A.S. Deshmukh, Advocate for respondents in all three Petitions.
***
CORAM : RAVINDRA V. GHUGE
AND
SUNIL K. KOTWAL, JJ.
Dated : 10-11-2017.
ORAL JUDGMENT (PER RAVINDRA V. GHUGE) :-
1. In all these three Petitions, as the original applicants
before the learned Maharashtra Administrative Tribunal are
identically placed, this Court heard these three Petitions and granted
interim relief in terms of prayer Clause-C.
2. Since the three employees in these three Petitions are
identically situated, we have taken up these three Petitions together.
(4) WP No.1869/2008 & others (J)
3. We have considered the strenuous submissions of the
learned A.G.P. on behalf of the petitioners and Mr. Deshmukh, learned
Advocate on behalf of the respondent employees.
4. Respondents herein were working as Mustering
Assistants on Work Charged Establishment under the Employment
Guarantee Scheme. They were being paid their salaries with
allowances as were awarded to them from 01.10.1988 by virtue of
the orders of the Hon'ble High Court and the Hon'ble Supreme Court.
Considering the effect of the Kalelkar Settlement, they continued in
service.
5. From 21.01.2000, these respondents were absorbed as
Peon/Junior Clerk. Absorption has occurred on the basis of the
Government Resolution dated 01.12.1995 by which a scheme for
considering the Mustering Assistants in the State Government for
absorption was presented before the Apex Court. By an order
delivered by the Hon'ble Apex Court in December 1996, the
Government Resolution was approved and the scheme for absorption
was implemented.
6. The controversy before the learned Maharashtra
Administrative Tribunal was that after absorption, the pay fixation
done by the Authorities was implemented. These respondents were
(5) WP No.1869/2008 & others (J)
paid as per the pay fixation which was made notionally effective from
01.01.1996. In 2006, the Authorities of the Establishment with
which these employees were working, noticed that the pay fixation
was wrongly done and an excess payment was being made to these
employees. By notices dated 23.02.2006, 06.03.2006 and
06.03.2006 issued to these three employees, the concerned
Establishment sought to recover the excess payment made. It was, as
against this cause of action, that these respondents approached the
learned Maharashtra Administrative Tribunal by filing original
applications.
7. By judgment dated 17.07.2007, the learned Maharashtra
Administrative Tribunal allowed the original applications filed by
these employees and concluded that as none of these employees were
held responsible for the wrong pay fixation and since there was no
allegation against these employees that the wrong pay fixation had
occurred on account of their misrepresentation or fraud, the learned
Maharashtra Administrative Tribunal quashed the impugned notices
considering the judgments delivered by the Hon'ble Supreme Court in
the matters of Col. (Retd.) B.J. Akkara Vs. Government of India
and others with Retd. Armed Forces Medical Association and
Others Vs. Union of India (2006 AIR SCW 5252), Sahib Ram Vs.
State of Haryana (1995 Supp 1 SCC 18), Shyam Babu Verma Vs.
(6) WP No.1869/2008 & others (J)
Union of India [1994 (2) SCC 521], Union of India Vs. M. Bhaskar
[1996 (4) SCC 416] and Gangaram Vs. Regional Joint Director
(AIR 1997 SC 2776).
8. The learned A.G.P. has strenuously contended that
though the respondent employees may not be guilty of any fraud or
misrepresentation, no employee can be permitted to earn excess
wages/salaries than the wages, which they are duly entitled to. She
submits that excess payment made by mistake by the petitioners has
resulted in draining the public exchequer. The said payment is being
made from the tax payers' money and no employee should be
permitted to retain such amounts or money to which he is not legally
entitled to.
9. In so far as the submissions of the learned A.G.P. are
concerned, no doubt excess payment made to these employees is
from the tax payers' money. However, in recent judgments delivered
by the Hon'ble Supreme Court in the matter of Syed Abdul Quadir
Vs. State of Bihar and others [(2009) 3 SCC 475] and State of
Punjab and others Vs. Rafiq Masih (White Washer) [(2015) 4
SCC 334], it has been held that though recovery is not prohibited in
each and every case, it should be assessed as to whether excess
payment received by the employee is a result of his handiwork. He
should have played a fraud or should have caused misrepresentation
(7) WP No.1869/2008 & others (J)
with the intention to cause a wrong pay fixation and thereby earn
excess amount to which he is not legally entitled to.
10. We do not find from the pleadings on behalf of the
petitioners and the observations of the learned Maharashtra
Administrative Tribunal in the impugned judgments that these
employees have deliberately and intentionally caused
misrepresentation or have played a fraud for causing wrong pay
fixation, so that they would earn excess amounts.
11. We are also informed that the respondent employees
namely Shri Sahebkha Rasulkha and Shri Rangnath Somnath Kadam
in the first two Petitions have already superannuated and Shri Deepak
Laxmanrao Kulkarni in the third Petition is aged 55 years and he is at
the verge of his retirement. Nevertheless, the State Authorities have
not made out a case of deliberate, intentional and willful
misrepresentation or fraud by the respondent employees in relation
to the wrongful pay fixation. We find that these respondents are
squarely covered by the view taken by the Hon'ble Apex Court in the
matter of Syed Abdul Quadir and Rafiq Masih (White Washer)
(supra).
12. Considering the above, we do not find any merit in these
Petitions and the same are, therefore, dismissed. Rule is discharged.
(8) WP No.1869/2008 & others (J)
13. It is made clear that as the maximum amount of Rs.
40,000/- was to be recovered from each of these employees, in the
event of any portion of the said amount has been recovered by the
petitioners from the legal dues or salaries of these respondent
employees, the recovered amount shall be returned to these
employees without interest, within 8 weeks from today.
14. In the event the said amount is not repaid within 8
weeks, it will carry interest @ Rs. 3 % per annum from the date of
the judgment of the learned Maharashtra Administrative Tribunal.
( SUNIL K. KOTWAL) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
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