Babasaheb Nivrutti Borude And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 8776 Bom

                                 .. 1 ..                          7305.2021WP.

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      40 WRIT PETITION NO.7305 OF 2021

BABASAHEB NIVRUTTI BORUDE AND OTHERS                             .. Petitioners
          VERSUS
THE STATE OF MAHARASHTRA AND OTHERS                    .. Respondents
                                   ...
Advocate for the Petitioners : Mr Arvind G Ambetkar
Addl. G.P. for the Respondent / State : Mrs M.A. Deshpande
                                   ...

                               CORAM : S. V. GANGAPURWALA &
                                       R.N. LADDHA, JJ.

DATE : 05-07-2021

PER COURT : -

1. The learned Counsel for the petitioners submits that, the

petitioners were Class-III employees at the time of retirement and

the recovery has been claimed by the respondents.

2. Heard the learned Counsel for the petitioners and the

learned Addl. G.P.

3. The learned Counsel for the petitioners submits that this

Court in the 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.

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4. The learned counsel refers to the judgment and order

dated 18-07-2017 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.

5. 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.

6. 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

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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 employers right to recovery.

7. 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.

8. 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.

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

      [ R.N. LADDHA ]                             [ S. V. GANGAPURWALA ]
          JUDGE                                            JUDGE
                                            ...

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