Bombay High Court
Hari Mohan Pathe And Others vs The State Of Maharashtra Through ... on 4 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 33 WP.11036.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
33 WRIT PETITION NO.11036 OF 2021
HARI S/O MOHAN PATHE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA,
THROUGH ITS SECRETARY AND OTHERS
...
Advocate for Petitioners : Mr. Arvind G. Ambetkar.
AGP for Respondent/State: Mr. A. R. Kale.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE : 04th October, 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 A.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.
4. The learned Counsel refers to the judgment and order
2 33 WP.11036.21.odt
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.
3 33 WP.11036.21.odt
(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 employee,
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.
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.
9. The petitioners shall give details of the amount recovered.
The respondents shall verify the same from the record and if the
amount is recovered from the retiral benefits on account of excess
payment made, the same shall be refunded within a period of four (04)
4 33 WP.11036.21.odt
months from the date the petitioners submitting the details and the
chart.
10. The Writ Petition is accordingly disposed of. No costs.
[ R. N. LADDHA, J. ] [ S. V. GANGAPURWALA, J. ]
nga
