Bombay High Court
Pandurang Dnyanobga Nagare vs The State Of Maharashtra Thr Its ... on 9 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
W.P. No.5756/2021
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 5756 OF 2021
Pandurang s/o. Dnyanoba Nagare,
Age 60 years, Occu. Retired,
R/o. Near Diksha Buddha Vihar,
Cidco, Nanded. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Secretary,
General Administration Department,
Mantralaya, Mumbai.
2. The Chief Executive Ofcer,
Zilla Parishad, Nanded.
3. The Deputy Account & Finance Ofcer,
Zilla Parishad, Nanded.
4. The Senior Accountant,
Zilla Parishad, Nanded.
5. The Medical Ofcer,
Primary Health Center, Wai (Bz),
Tq. Mahur, Dist. Nanded. ....Respondents.
Mr. V.R. Jain (Kamboj), Advocate for the petitioner.
Mr. S.P. Tiwari, A.G.P. for respondent No. 1/State.
Mr. S.B. Pulkundwar, Advocate for respondent Nos. 2 to 4.
CORAM : S.V. GANGAPURWALA &
R.N. LADDHA, JJ.
DATED : 09/08/2021.
ORAL JUDGMENT : [PER S.V. GANGAPURWALA, J.]
. Rule. Rule made returnable forthwith. By consent of
parties, the petition is heard finally at the stage of admission.
W.P. No.5756/2021
2. The petitioner seeks refund of the amount deducted from
the retiral benefits on account of excess salary paid. It is not
disputed that the petitioner was working as a Class III employee
with respondent No. 2. An amount of Rs.1,72,179/- is deducted from
the retiral benefits of the petitioner on the ground that the petitioner
has paid excess amount due to wrong pay fixation.
3. We have heard the learned counsel for the petitioner and
Mr. Pulkundwar, learned advocate for the respondent Nos. 2 to 4.
4. It is not the case of the respondents that the petitioner
had misrepresented and because of the misrepresentation the
respondents had fixed wrong pay scale. The pay scale was fixed by
the respondents on their own accord. It is the contention of the
respondents that from the date of appointment wrong fixation was
done. The same was much more than five years prior to the date of
recovery.
5. The petitioner would be put to hardship by the recovery
of the said amount.
6. The judgment of the Apex Court in the case of State of
Punjab and Ors. Vs. Rafik Masih (White Washer) etc. reported in
W.P. No.5756/2021
2015 (4) SCC 334 would be squarely applicable, wherein the Apex
Court has 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, 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. Excess payment has been made for the period in excess
of five years before the order of recovery. The petitioner was Class
III employee. The recovery is made from the retiral benefits. It
W.P. No.5756/2021
would be iniquitous and harsh to recover the amount from the
petitioner. All the parameters as laid down in the case of Rafik cited
supra are applicable in the present case.
8. In the light of above, the impugned order to the extent
of recovery is quashed and set aside. The respondents shall refund
the amount of Rs. 1,72,179/- to the petitioner preferably within
three months.
9. The writ petition is accordingly disposed of. No costs.
Rule is accordingly made absolute in above terms.
[ R.N. LADDHA, J.] [S.V. GANGAPURWALA, J.]
ssc/
