Bombay High Court
Rajaram Tukaram Malghe And Ors vs The State Of Maharashtra Thru ... on 12 March, 2021
Bench: K.K. Tated, R. I. Chagla
10 wp1890-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Trusha T.
Mohite CIVIL APPELLATE SIDE JURISDICTION
Digitally signed by
Trusha T. Mohite
Date: 2021.03.16
15:45:01 +0530
WRIT PETITION NO.1890 OF 2020
Rajaram Tukaram Malghe and Ors. ..... Petitioners
Vs.
The State of Maharashtra Thru
Secretary, Dept. of Finance and Ors. ..... Respondents
Mr.Vinod Sangvikar a/w Ms.Vaishnavi Gholave for the
Petitioner
Mr.A.P.Vanarase, A.G.P. for the State
Mr.Rajesh Datar for the Respondent nos.2 and 3
CORAM: K.K.TATED &
RIYAZ I. CHAGLA, JJ.
DATED : MARCH 12, 2021
P.C.
. Heard.
2. By this petition, under Article 226 and 227 of the
Constitution of India, Petitioner is seeking an order
restraining Respondents from recovering the excess
payment from their salary as per order/letter dated
20.07.2019 issued by the District Court, Pune.
3. It is the case of the Petitioners that Petitioners are
working as Class IV employees with the Respondents. They
Mohite 1/5
10 wp1890-20.odt
received payment as per 6th pay commission since 2009.
Thereafter, the Government informed to the District Court
that some excess payment is made to the Petitioners and
same be recovered.
4. The learned counsel for the Petitioners submits that in
view of the Apex Court Judgment in the matter of State of
Punjab and Others vs. Rafi Masih (White Washer) and
Others, (2015) 4 SCC 334, there is no iuestion of recovering
the said excess amount. 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 herein above, we may, as
a ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law:
(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
fve years, before the order of recovery is issued.
Mohite 2/5
10 wp1890-20.odt
(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 against an inferior post.
(v) In any other case, where the Court arrives at
the conclusion, that recovery if made from the
employee, would be iniiuitous or harsh or
arbitrary to such an extent, as would far outweigh
the eiuitable balance of the employer's right to
recover.
5. On the other hand, Mr.Datar for Respondent nos.2 and
3 submit that he reiuires some time to fle his reply. He
further submits that judgment of the Apex Court in the
matter of State of Punjab and Others vs. Rafi Masih (White
Washer) and Others (Supra) is referred in subseiuent
judgment of the Apex Court in the matter of High Court of
Punjab and Haryana and Others reported in 2016 (14) SCC
267. He submits that by this order, Apex Court clarifed in
which case they can recover the amount. He relies on
paragraph 10 of the said judgment which reads thus:
"10. In State of Punjab and Ors. etc. v. Rafi
Masih (White Washer) etc. (2015) 4 SCC 334 this
Court held that while it is not possible to postulate
all situations of hardship where payments have
mistakenly been made by an employer, in the
following situations, a recovery by the employer
would be impermissible in law:
Mohite 3/5
10 wp1890-20.odt
(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
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 against an inferior post.
(v) In any other case, where the Court arrives at
the conclusion, that recovery if made from the
employee, would be iniiuitous or harsh or
arbitrary to such an extent, as would far outweigh
the eiuitable balance of the employer's right to
recover.
(Emphasis supplied).
6. In any case, Respondent nos.1 and 2 reiuires some
time to fle their reply. Hence, the following order is passed:
a. Liberty granted to the Respondents to fle their reply
on or before 25.03.2021 with copy to other side.
b. Rejoinder, if any, be fled on or before 06.04.2021 with
Mohite 4/5
10 wp1890-20.odt
copy to other side.
c. Matter to appear on board on 16.04.2021.
d. Till next date, Respondents are restrained from
recovering any amount from the Petitioners as per their
letter cum order dated 20.07.2019 issued by the Registrar,
District Court, Pune being Exhibit 'E' at page 29 of the
petition.
(RIYAZ I. CHAGLA, J.) (K.K.TATED, J.)
Mohite 5/5
