Ghansham Baburao Jawale And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 6650 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                   920 WRIT PETITION NO.6225 OF 2021

               GHANSHAM BABURAO JAWALE AND OTHERS
                              VERSUS
               THE STATE OF MAHARASHTRA AND OTHERS

Mr. Arvind G. Ambetkar, Advocate for the petitioners
Mr. K. N. Lokhande, AGP for the respondents/State.


                                    CORAM : S. V. GANGAPURWALA &
                                            SHRIKANT D. KULKARNI, JJ.

DATED : 23-04-2021

PER COURT :-

1. Heard the learned counsel for the petitioners and the

learned A.G.P.

2. The learned counsel for the petitioners submits that this

court in case of similarly situated persons, has set aside the order of

recovery and directed to refund the amount of which recovery was

made on account of wrong fixation.

3. The learned counsel refers to the judgment and order

dated 18.7.2017 passed in Writ Petition No. 5367 of 2016 and the

judgment and order dated 12.02.2018 passed in Writ Petition No.

695 of 2016.

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4. It is not disputed that the petitioners are similarly

situated as the petitioners in Writ Petition Nos. 5367 of 2016 and

695 of 2016, referred to above and are from the same Department.

5. The petitioners have retired from service and claim the

refund of the amount recovered from them on account of wrong

fixation. The petitioners rely on the judgment in the case of State of

Punjab and others vs. Rafiq Masih (White Washer), etc. Reported in

2015(4) SCC 334. The Apex Court in the said judgment laid down

the following parameters :-

(i) Recovery from employees belonging to Class-III and Class-IV

service (or Group C and Group D service).

(ii) Recovery from retired employees, or employees who are due

to retire within one year, of the order of recovery.

(iii) Recovery from 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,





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that recovery if made from the employees, would be iniquitous or

harsh or arbitrary to such an extent, as would far outweigh the

equitable balance of the employers right to recovery.

6. The petitioners were working on Class-III posts on the

date of retirement. It would cause hardship to the petitioners if the

said amount is recovered. All the parameters detailed in the

judgment of the Apex Court in the case of State of Punjab and

others vs. Rafiq Masih (White Washer), etc. (supra) are attracted in

the present matter.

7. In light of the above, the impugned order of recovery is

quashed and set aside. In case the respondents have recovered the

amount from the petitioners, the same shall be refunded to the

petitioners expeditiously and preferably within four months.

8. The Writ Petition is accordingly disposed of. No costs.

     (SHRIKANT D. KULKARNI)                     (S. V. GANGAPURWALA)
             JUDGE                                       JUDGE




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