Anna Tukaram Pote And Others vs The State Of Maharashtra And ...
2021 Latest Caselaw 8082 Bom

                                       (1)                                  958-wp-6716-2021



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD
                 WRIT PETITION NO.6716 OF 2021

 ANNA S/O TUKARAM POTE & ORS.                                        ..PETITIONER

                  VERSUS

 THE STATE OF MAHARASHTRA & ORS.     ..RESPONDENTS
                        ...
 Mr. A. G. Ambetkar, Advocate for the Petitioner.
 Mr. K. B. Jadhavar, AGP for Respondents-State.
                                             ...

                                 CORAM : S. V. GANGAPURWALA &
                                         M. G. SEWLIKAR, JJ.

DATED : 18th JUNE, 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 18.07.2017 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.

4. It is not disputed that the petitioners are similarly situated as the petitioners in Writ Petition No.5367 of 2016 and 695 of 2016, referred to above and are from the same Department.

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5. The petitioners have retired from service and claimed 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 be 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 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

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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.

    (M. G. SEWLIKAR)                               (S. V. GANGAPURWALA)
             JUDGE                                        JUDGE


 Devendra/June-2021