Bombay High Court
Mangalrao Shridharrao Deshpande vs The State Of Maharashtra And ... on 11 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
946 WRIT PETITION NO.9029 OF 2017
MANGALRAO SHRIDHARRAO DESHPANDE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. Amit A. Mukhedkar.
AGP for Respondent/State: Mr. K. N. Lokhande.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE : 11th August, 2021.
P.C.:
. The petitioner is challenging the amount recovered from
his retiral benefits on the ground that excess salary was paid to the
petitioner while in service.
2 Mr. Mukhedkar, learned counsel submits that the pay
fixation was done by the respondents. The petitioner had never
misrepresented or played fraud upon the respondents. The recovery
of amount is for the period prior to five years of his retirement. The
petitioner retired as Class-III employee. The learned counsel relies on
the judgment of the Apex Court in State of Punjab and others Vs. Rafiq
Masih (White Washer) and others, reported in, (2015) 4 Supreme
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Court Cases 334. According to the learned counsel, the respondents
could not have recovered the amount from the retiral benefits.
3 The AGP submits that the excess amount was paid to the
petitioner on account of wrong pay fixation done. The learned AGP
submits that the respondents are entitled to recover the amount in view
of the provisions of the Maharashtra Civil Services (Pension) Rules,
1982.
4 We have considered the submissions.
5 It is not disputed that the petitioner, at the time of
retirement was working as Class-III employee. The recovery is in
respect of the payment made to the petitioner five years prior to his
retirement. The petitioner had never misrepresented with the
respondents. The pay fixation was done at the behest of the
respondents. It would be inequitable to direct recovery at this, from the
retiral benefits.
6 The Apex Court in the case of Rafiq (supra) has held as
under:
"18. It is not possible to postulate all situations of
hardship which would govern employees on the issue of
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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 hereinabove, 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.
(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 All the aforesaid parameters laid down by the Apex Court
are fulfilled in the present matter.
8 In light of the above, we pass the following order:
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ORDER
I. The respondents shall refund the amount of
Rs.44,715/- to the petitioner within three months.
II. The writ petition is disposed of. No costs.
[ R. N. LADDHA, J. ] [ S. V. GANGAPURWALA, J. ]
nga
