Ram Sukhdeo Kamble vs State Of Mah & Anr
2017 Latest Caselaw 7087 Bom

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

                   WRIT PETITION NO. 6397 OF 2005

     Shri. Ram S/o Sukhdeo Kamble,
     Age : 48 years, Occ. Service,
     R/o. Vidya Nagar, Sailu,
     Tq. Sailu, Dist.Parbhani       ...Petitioner 

                       VERSUS 

1.   The State of Maharashtra,

2.   The Director, 
     Municipal Administration,
     Government Transport Service 
     Building, 3rd Floor, 
     Sir Pokharanwala Road,
     Worli, Mumbai- 400 030.

3.   Chief Officer, 
     Municipal Council, 
     Sailu, Tq. Sailu, 
     Dist. Parbhani.

4.   Collector,
     Parbhani                               ..Respondents 

                                AND 
                   WRIT PETITION NO. 6398 OF 2005

     Shri. Ashok S/o Manikrao Kasar,
     Age : 46 years, Occ. Service,
     R/o. Hemant Nagar, Sailu,
     Tq. Sailu, Dist. Parbhani.      ..Petitioner 

              VERSUS 




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                                         2   DB-SPD AND SSP Writ Petition No. 6397 of 2005 and
W.P.. 6398 of 2005

1.       The State of Maharashtra,

2.       The Director, 
         Municipal Administration,
         Government Transport Service 
         Building, 3rd Floor, 
         Sir Pokharanwala Road,
         Worli, Mumbai- 400 030.

3.       Chief Officer, 
         Municipal Council,
         Sailu, Tq. Sailu, 
         Dist. Parbhani.

4.       Collector,
         Parbhani                                       ..Respondents 

                          ..
Shri.A.S.Deshmukh, Advocate for petitioners

Shri.S.K.Tambe, A.G.P for respondent Nos.1,2, and 4 

Shri.Ashok Bhagure, Advocate for respondent No.3
                          ..

                     CORAM : SUNIL P. DESHMUKH AND
                             SANGITRAO S. PATIL JJ.
                     DATE  : SEPTEMBER 13, 2017


 
COMMON
       JUDGMENT 

(PER SANGITRAO S. PATIL, J.):

Heard the learned Counsel for the

petitioners, the learned A.G.P representing the State

and the learned counsel for respondent No.3.

3 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

2. Since common questions of law and facts are

involved in these petitions, they are being decided

by this common judgment.

3. The petitioners were serving as Recovery

Clerks in Municipal Council, Sailu, Tq. Sailu, Dist.

Parbhani. As per the recommendations of 4th Pay

Commission, they were given pay-scale of Rs.1400-2600

vide order dated 01.10.1997. However, the said order

was reviewed by respondent No.2 as per the order

dated 09.03.2005 and instead of the pay scale of

Rs.1400-2600, their pay scale was fixed at Rs.1200-

2040. Further, respondent No.2 directed recovery of

the excess amount paid to the petitioners on account

of wrong pay fixation.

4. The learned Counsel for the petitioners

submits that the petitioners are class-III employees

of the Municipal Council. One of the petitioners has

retired on attaining the age of superannuation and

another is on the verge of retirement. He submits

4 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

that the petitioners were rightly given the pay-scale

of Rs.1400-2600 as per the order dated 01.10.1997

passed by respondent no.2. He submits that even if it

is accepted, for a while, that there was mistake in

fixation of pay-scale of the petitioners, it was on

the part of the office of the petitioners. The said

mistake was not the result of any fraud or

misrepresentation on the part of the petitioners. If

the excess amount is ordered to be recovered from the

petitioners, they will be put to a great harassment.

The learned Counsel submits that in view of the

judgment in the case of State of Punjab and others

etc Vs. Rafiq Masih (White Washer) etc. AIR 2015 S.C.

696, the amount of excess payment made due to wrong

fixation of pay of the petitioners cannot be

recovered from them since they are Class III

employees and one of them has been retired, while the

other is on the verge of retirement.

5. The learned AGP submits that since the pay-

scale of the petitioners was wrongly fixed, after

5 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

noticing the mistake, it was decided to recover the

amount of excess payment already made to them. He

submits that the respondents are entitled to recover

the amount of excess payment made to the petitioners

on account of wrong fixation of pay.

6. It is not the case the respondents that the

pay scale of the petitioners was wrongly fixed at

Rs.1400-2600 because of any misrepresentation or

fraud played by them. There is nothing on record to

show that the petitioners had knowledge that they

were being paid excess pay, to which they were not

legitimately entitled. The petitioners cannot be held

responsible for the excess payment made to them on

account of wrong pay fixation. In the circumstances,

the law laid down by the Hon'ble Apex Court in the

case of State of Punjab and others (supra) cited by

the learned counsel for the petitioners, would be

applicable to the facts of the present case. In the

said judgment, the Hon'ble Apex Court has summarized

6 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

some of the situations when recovery by the employer

would be impermissible in law. They are as under :-

(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.

(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.

7 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

(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.

7. The petitioners are class-III employees.

One of the petitioners has retired on attaining the

age of superannuation and another is on the verge of

the retirement. As per the impugned order dated

09.03.2005, the amount of excess payment made to the

petitioners from the year 1997 ( i.e. for a period of

more than five years) has been sought to be

recovered. Considering the status and income of the

petitioners, it would be iniquitous and harsh to

recover the amount of excess payment made to them at

this stage. The case of the petitioners would fall

in Clauses (i),(ii), (iii) and (v) referred to above.

In the circumstances, the impugned order, dated 9 th

March, 2005 to the extent it directs recovery of

8 DB-SPD AND SSP Writ Petition No. 6397 of 2005 and W.P.. 6398 of 2005

excess payment made to the petitioners, being not

sustainable, will have to be quashed and set aside.

As a consequence thereof, the order dated 05.04.2005

passed by Respondent No.3 to the extent it directs

recovery of excess payment made to the petitioners

also will have to be quashed and set aside. In the

result, we pass the following order :-

O R D E R

(i) The orders dated 09th March, 2005 and 05th

April, 2005 passed by respondent Nos.2 and

3 respectively, to the extent they direct

recovery of excess payment made to the

petitioners, are quashed and set aside.

(ii) Rule is made absolute accordingly.

(iii) Writ Petitions are disposed of.

(iv)                 No costs.

                                 

 (SANGITRAO S. PATIL)                              (SUNIL P. DESHMUKH)
         JUDGE                                             JUDGE 

YSK