Bombay High Court
The Chief Executive Officer vs The State Of Maharashtra And ... on 26 February, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION (CIVIL) (ST) NO. 9580 OF 2020
IN WRIT PETITION NO. 3441 OF 2019
The Chief Executive Officer,
Zilla Parishad through
Shrikant Manohar Mangulkar .. Applicant
Versus
The State of Maharashtra and another .. Respondents
Mr. C. D. Biradar, Advocate for the Applicant.
Mr. S. R. Yadav-Lonikar, AGP for Respondent No. 1.
Mr. S. K. Chavan, Advocate for Respondent No. 2.
CORAM : S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
DATED : 26th February, 2021.
PER COURT:-
. The review is sought of the judgment and order passed by this
Court dated 24.09.2019 in Writ Petition No. 3441 of 2019. Under the
said judgment this Court allowed the petition to the extent of recovery.
This Court did not interfere with the repay fixation.
2. The learned counsel for the review applicant relies on the
judgment of the Apex Court in case of High Court of Punjab & Haryana
& Ors. Vs. Jagdev Singh in Civil Appeal No. 3500 of 2006 decided
under the judgment and order dated 29.07.2016 and submits that as
the non applicant had given an undertaking the applicant is entitled for
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recovery.
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3. The order dated 24.09.2019 sought to be reviewed is as under :
"1. Learned counsel for the petitioner and learned
counsel for the respondent Zilla Parishad are ad idem that
the petitioner is similarly situated as the petitioner in Writ
Petition No. 9854 of 2018 decided on 11 th January, 2019.
In light of that we pass the same order.
2. For the reasons recorded under order dated 11 th
January, 2019 in Writ Petition No. 9854/2018, the
impugned order to the extent of recovery only is
quashed and set aside. If any recovery is made pursuant to
the impugned order, the same shall be refunded to the
petitioner within a period of three months."
4 While passing the said order, the learned counsel for the present
applicant and the non applicant no. 2 were at consensus that the
original writ petitioner is similarly situated as the Writ petitioner in
Writ Petition No. 9854 of 2018 decided on 11.01.2019 and we
proceeded to pass the same order. The order in Writ Petition No. 9854
of 2018 dated 11.01.2019 is not reviewed, nor it appears review is
sought.
5. The judgment relied by the review applicant in case of High
Court of Punjab & Haryana & Ors. (supra) was in respect of the Class-I
employee. In the present case, admittedly, the original writ petitioner
was Class-III employee and the recovery was claimed when the original
writ petitioner was on the verge of retirement. The recovery is more
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than five years and above. The parameters laid down in the case of
State of Punjab and others Vs. Rafiq Masih reported in 2015 (4) SCC
334 are squarely applicable in the present case. The said parameters
are as under :
"(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 employees, 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. In the light of the above, no case for review is made out. Review
application is rejected.
( SHRIKANT D. KULKARNI ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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