Bombay High Court
Laxman Mhaisaji Bodke vs The State Of Maharashtra And ... on 10 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
984 WRIT PETITION NO. 15170 OF 2019
Gangadhar S/o Jalba Kadam
Age : 61 years, Occu. : Pensioner,
R/o, Bh Arya Bhawan Shivaji Nagar
Dharmabad, Tq. Dharmabad, Dist. Nanded .. Petitioner
Versus
1) The State of Maharashtra,
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) The Chief Executive Officer
Zilla Parishad Nanded.
3) The Accounts Officer
Zilla Parishad Nanded.
4) The Block Development Officer
Panchayat Samiti Umri. .. Respondents
WITH
WRIT PETITION NO. 15158 OF 2019
Laxman S/o Mhaisaji Bodke
Age : 56 years, Occu. : Pensioner,
R/o, Phule Nagar Kandhar
Tq. Kandhar, Dist. Nanded .. Petitioner
Versus
1) The State of Maharashtra,
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) The Chief Executive Officer
Zilla Parishad Nanded.
3) The Accounts Officer
Zilla Parishad Nanded.
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4) The Block Development Officer
Panchayat Samiti Dharmabad .. Respondents
WITH
WRIT PETITION NO. 15245 OF 2019
Murlidhar S/o Shankarrao Bone
Age : 60 years, Occu. : Pensioner,
R/o, Karadkhed, Tq. Degloor, Dist. Nanded .. Petitioner
Versus
1) The State of Maharashtra,
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) The Chief Executive Officer
Zilla Parishad Nanded.
3) The Accounts Officer
Zilla Parishad Nanded.
4) The Block Development Officer
Panchayat Samiti Degloor. .. Respondents
AND
1000 WRIT PETITION NO. 4373 OF 2021
Laxman Vishram Pawar
Age : 61 years, Occu. : Pensioner,
R/o, Vivek Nagar, Tamsa Road Ardhapur
Tq. Ardhapur, Dist. Nanded .. Petitioner
Versus
1) The State of Maharashtra,
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) The Chief Executive Officer
Zilla Parishad Nanded.
3) The Accounts Officer
Zilla Parishad Nanded.
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4) The District Health Officer
Zilla Parishad Nanded .. Respondents
Mr. Girish N. Kulkarni (Mardikar), Advocate for the Petitioners in all
matters.
Mr. K. N. Lokhande, AGP for Respondent No. 1 in W.P. No. 15170 of
2019 with W. P. No. 15158 of 2019 with W. P. No. 15245 of 2019.
Mrs. V. N. Patil-Jadhav, AGP for Respondent No. 1 in W. P. No. 4373 of
2021.
Mr. S. B. Pulkundwar, Advocate for Respondent Nos. 2 to 4 in all
matters.
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 10th AUGUST, 2021.
ORAL JUDGMENT (PER S. V. GANGAPURWALA, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of
parties, taken up for final hearing at admission stage.
2. In all these matters, the petitioners assail the orders
claiming recovery from them on account of wrong pay fixation.
3. Mr. Kulkarni, the learned counsel for petitioners,
strenuously contends that recovery in all these matters is beyond five
(05) years. Some of the petitioners have retired and some of the
petitioners are on the verge of retirement. The learned counsel submits
that in such cases, recovery cannot be claimed against the petitioners
even assuming that the pay fixation was wrong. According to the
learned counsel, the pay fixation was not on account of any
misrepresentation on the part of the petitioners. In such cases, recovery
cannot be claimed. The counsel for the petitioners placed reliance on
the judgment of the Apex Court in a case of State of Punjab and others
v/s. Rafiq Masih (White Washer) dated 18.12.2014.
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4. The learned AGP and Mr. Pulkundwar, learned counsel for
Zilla Parishad submit that wrong pay fixation was done and wrongly
excess payment has been paid to the petitioners. As such, respondents
have every right to recover the same.
5. It is not disputed that in all these matters some of the
petitioners have retired and some of the petitioners are on the verge of
retirement. It is also not disputed that recovery claimed is beyond five
(5) years. The Apex Court, in a case of State of Punjab (supra) in
paragraph no. 12, has observed as under:
"12. It is not possible to postulate all situations of hardship,
which would govern employees on the issue of recovery,
where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may,
based on the decisions referred to herein above, we may,
as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would be
impermissible in law:
(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.
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(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."
6. The case of the present petitioners would be squarely
covered by the judgment in the case of State of Punjab (Supra ). Some
of the petitioners have retired and some are on the verge of retirement.
The recovery also is for a period beyond 5 years, as such the present
case is covered by eventualities as laid down in paragraph nos. 12(ii)
and (iii) of the judgment of Apex Court in the case of State of Punjab
(referred supra).
7. In the light of the above, the writ petitions are allowed.
The impugned orders claiming recovery against the petitioners are
quashed and set aside. In case the respondents, pursuant to the said
orders of recovery, have recovered some amount from the petitioners,
then the respondents shall refund the said amount to the petitioners
expeditiously and preferably within a period of six (06) months.
8. Rule is accordingly made absolute in above terms. No
costs.
( R. N. LADDHA ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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