Raghunath Ganpat Khedkar And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 1862 Bom

                                         1                                         924.odt

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                       924 WRIT PETITION NO.1599 OF 2021

                RAGHUNATH GANPAT KHEDKAR AND OTHERS
                                    VERSUS
                 THE STATE OF MAHARASHTRA AND OTHERS
                                       ...
              Advocate for the Petitioners : Shri A. G. Ambetkar
               AGP for Respondent - State : Mrs. P. V. Diggikar
                                       ...

                                    CORAM :   S. V. GANGAPURWALA &
                                              SHRIKANT D. KULKARNI, JJ.

DATED : 28th JANUARY, 2021.

...

PER COURT :

1. Heard the learned counsel for the petitioners and the learned

A.G.P.

2. The learned counsel for the petitioners submits that this Court

in case of similarly situated persons, has set aside the order of

recovery and directed to refund the amount of which recovery was

made on account of wrong fixation.

3. The learned counsel refers to the judgment and order dated

18.7.2017 passed in Writ Petition No. 5367 of 2016 and the judgment

and order dated 12.02.2018 passed in Writ Petition No. 695 of 2016.

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4. It is not disputed that the petitioners are similarly situated as

the petitioners in Writ Petition Nos. 5367 of 2016 and 695 of 2016,

referred to above and are from the same Department.

5. The petitioners have retired from service and claim the refund

of the amount recovered from them on account of wrong fixation. The

petitioners rely on the judgment in the case of State of Punjab and

others vs. Rafiq Masih (White Washer), etc. reported in 2015 (4) SCC

334. The Apex Court in the said judgment 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 employees, would be iniquitous

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or harsh or arbitrary to such an extent, as would far outweigh

the equitable balance of the employers right to recovery.

6. The petitioners were working on Class-III posts on the date of

retirement. It would cause hardship to the petitioners if the said

amount is recovered. All the parameters detailed in the judgment of

the Apex Court in the case of State of Punjab and others vs. Rafiq

Masih (White Washer), etc. (supra) are attracted in the present

matter.

7. In light of the above, the impugned order of recovery is

quashed and set aside. In case the respondents have recovered the

amount from the petitioners, the same shall be refunded to the

petitioners expeditiously and preferably within four months.

8. The Writ Petition is accordingly disposed of. No costs.

(SHRIKANT D. KULKARNI, J.) (S. V. GANGAPURWALA, J.)

shp/-