Bombay High Court
Sheshrao Kondiba Avhad And Others vs The State Of Maharashtra And ... on 2 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 wp 8209.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
44 WRIT PETITION NO.8209 OF 2021
SHESHRAO KONDIBA AVHAD AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners: Mr. Ambetkar Arvind G
AGP for Respondents: Mr. P. K. Lakhotiya
...
CORAM: S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE: 02nd AUGUST, 2021
PER COURT:
1. The learned Counsel for the petitioners
submits that, the petitioners were Class-III
employees at the time of retirement and the
recovery has been claimed by the respondents.
2. Heard the learned Counsel for the petitioners
and the learned A.G.P.
3. The learned Counsel for the petitioners
submits that this Court in the case of similarly
situated persons, has set aside the order of
recovery and directed to refund the amount of
2 wp 8209.2021
which recovery was made on account of wrong
fixation.
4. The learned Counsel refers to the judgment
and order dated 18.07.2017 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.
5. 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.
6. 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:-
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(I) Recovery from employees belonging to
Class-III and Class-IV service (or Group
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, 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.
7. 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.
8. In light of the above, the impugned order of
recovery is quashed and set aside.
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9. The petitioners shall give details of the
amount recovered. The respondents shall verify the
same from the record and if the amount is
recovered from the retiral benefits on account of
excess payment made, the same shall be refunded
within a period of four (04) months from the date
the petitioners submitting the details and the
chart.
10. The Writ Petition is accordingly disposed of.
No costs.
[R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.]
marathe
