Bombay High Court
Shri. Prasad Vinayak Sohoni vs The Treasury Officer, Thane And ... on 24 February, 2021
Bench: K.K. Tated, R. I. Chagla
29 wp9936-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Trusha T.
Mohite CIVIL APPELLATE JURISDICTION
Digitally signed
by Trusha T.
WRIT PETITION NO.9936 OF 2019
Mohite
Date: 2021.03.01
11:37:59 +0530
Shri Prasad Vinayak Sohoni .. Petitioner
vs.
The Treasury Offcer, Thane
and Ors. .. Respondents
.....
Mr.Sanjay Kulkarni for the Petitioner
Mrs.P.J.Gavhane, A.G.P. for the State
Mr.Rajendra Dhaku Raut, Additional Treasury Offcer
.....
CORAM: K.K.TATED &
R.I.CHAGLA, JJ.
DATED : FEBRUARY 24, 2021
P.C.
. Heard.
2. By this petition, under Article 226 of the Constitution
of India, Petitioner is challenging the communication / letter
dated 28.05.2019 issued by Respondent no.1 to the
Petitioner for recovery from the Petitioner's pension
amount.
3. The learned Counsel for the Petitioner submits that
the Petitioner was appointed on 25.04.1984 as a Clerk in
the High Court, Appellate Side, Bombay. Thereafter,
Petitioner was promoted as Assistant on 03.07.2001.
Petitioner submitted his application for voluntary
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retirement dated 1st August, 2011 to the offce of the
Registrar General, High Court, Mumbai which was accepted.
Thereafter, Petitioner retired voluntarily on 01.11.2011.
Respondents paid amount of Rs.4,43,079/- on 20.01.2012.
4. The learned Counsel for the Petitioner submits that
thereafter, the Respondents started deducting sum of
Rs.5,000/- from his pension amount as per letter dated
28.05.2019 Exhibit 'E' on page 24 on the ground that some
amount is paid by them in excess. He submits that Supreme
Court in the matter of State of Punjab and Others vs. Rafi
Masif (White Washer) and Others, (2015) 4 SCC 334 held
that if employee is belonging to Class III and where
payments have been made mistakenly by the employer, in
excess of their entitlement, recovery by the employers
would be impermissible in law. In support of this contention,
he relies on paragraph 18 of the said judgment which reads
thus:
"18. 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 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 the employees belonging to
Class III and Class IV service (or Group C and
Group D service).
(ii) Recovery from the retired employee, or
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the employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from the employees, when the
excess payment has been made for a period in
excess of fve years, before the order of recovery is
issued.
(iv) Recovery in cases where an employee has
wrongfully been reiuired to discharge duties of a
higher post and has been paid accordingly, even
though he should have rightfully been reiuired to
work again an inferior post.
(v) In any other case, where the court arrives
at the conclusion, that recovery if made from the
employee, would be iniouitous or harsh or
arbitrary to such an extent, as would far outweigh
the eiuitable balance or the employer's right to
recover."
5. The learned Counsel for the Petitioner submits that
Respondents fled their affidavit-in-reply dated 22.02.2021
stating that they already recovered the entire amount of
Rs.3,60,580/- from the Petitioner and therefore, there is no
iuestion of taking any action against the Petitioner on the
basis of letter dated 28.05.2019.
6. The learned Counsel for the Petitioner submits that
amount recovered by the Respondent is contrary to law as
declared by the Apex Court. Hence, Petitioner may be
permitted to take appropriate action against the
Respondent for recovery of the said amount.
7. On the other hand, the learned A.G.P. for the
Respondent State submits that it is specifcally stated in the
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letter dated 28.05.2019 that they have to recover the
amount of Rs.4,174/- per month from the Petitioner from
20.01.2012 to 19.01.2027. She submits that actually they
recovered only arrears of Rs.3,60,580/-. She submits that as
per their calculation, further amount is due and payable by
the Petitioner.
8. The learned A.G.P. for the State submits that she
received instruction from the concerned offcer who is
present in court that for further recovery of amount, if any,
they will issue show cause notice to the Petitioner and then
they will start recovery. She submits that, that liberty may
be granted to the Respondents so that they can recover
remaining amount also by following due process of law.
9. We have heard both the sides at length. It is to be
noted that as on today, Respondent already recovered sum
of Rs.3,60,580/- from the Petitioner. Not only that,
Respondents fled their affidavit-in-reply dated 22.02.2021
where they specifcally stated that they already recovered
amount from the Petitioner and therefore, there is no
iuestion of taking further action on the basis of letter dated
28.05.2019. Paragraph 4 and 5 of the said reply reads thus:
"4. I say that, the Petitioner was working with
the Offce of the Registrar General Offce, Bombay
High Court from 25th April, 1984. I say that, the
Petitioner submitted notice of voluntary
retirement on 1.08.2011 and the same was
accepted and the Petitioner was allowed to retire
voluntarily w.e.f. 1.11.2011 by the Registrar, High
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Court, Appellate Side, Mumbai. I say that, the
Petitioner had already received the full amount of
pension Rs.10435/- without reduction of
commuted pension i.e. Rs.4174/- till 31 March
st
2019. Hence, nearly Rs.3,60,580/- had been
already received by the Petitioner from the period
01/11/2011 to 31/03/2010. Hereto annexed and
marked as Exhibit - A is the copy of the Chart
showing full pension disbursement to the
Petitioner without reduction of commuted pension.
5. I say that it came to the knowledge of the
Respondent No. 1 offce that the Petitioner has
been 1 offce that the Petitioner has been paid full
pension without reduction of the commuted
pension and hence the respondent No. 1 issued
letter dated 28.05.2019 for recovery of amount of
Rs. 360580/- for the period 20.01.2012 to
31.03.2019. I say that, in pursuance to the
communication dated 28.05.2019, the offce of the
Respondent No. 1 has started the process of
recovery from April 2019 to July 2019, whereas an
amount of Rs. 5000/- per month amounting Rs.
20000/- has been recovered. Thereafter, in the
month of August 2019, the arrears of Rs. 340580/-
was recovered as per the arrears of 7th Pay
Commission. Hereto annexed and marked as
Exhibit-B is a copy of the monthly system
generated Chart showing recovery from the
Petitioner."
10. In any case, during the course of argument, the
learned A.G.P. pointed out that it is specifcally stated in the
letter dated 28.05.2019 that they have to recover further
amount also. During the course of argument, she made a
statement after taking instruction from the concerned
offcer before this court that if any further amount is
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remained to be recovered from the Petitioner, that they will
recover after following due process of law. Firstly, they will
issue show cause notice to the Petitioner and after
Petitioner's reply and or hearing they will decide course of
action.
11. It is to be noted that submission made by the learned
Counsel for the Petitioner that whatever amount is
recovered by the Respondents is contrary to the law laid
down by the Apex Court in the matter of State of Punjab and
Others vs. Rafi Masif (White Washer) and Others, (2015) 4
SCC 334. Therefore, oral prayer made by Advocate for the
Petitioner can be accepted that, he can take appropriate
proceeding against the Respondent for recovery of the said
amount.
12. In view of these facts, Petition is disposed of with
following order:
a. Liberty granted to the Petitioner to take out
appropriate proceeding against the Respondents if he so
desires for recovery of sum of Rs.3,60,580/- along with
interest which was deducted by the Respondents from his
pension amount.
b. Liberty granted to the Respondent State to recover
further amount if any, due and payable by the Petitioner
after following due process of law i.e. issuing show cause
notice and after hearing the Petitioner.
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c. With these directions, Writ Petition stands disposed of
accordingly.
d. No order as to costs.
(R.I.CHAGLA, J.) (K.K.TATED, J.)
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