Bombay High Court
Chitra W/O Gajanan Deshpande vs State Of Maharashtra, Through ... on 6 October, 2021
Bench: S.B. Shukre, Anil S. Kilor
33-wp 3973-20- 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3973 OF 2020
PETITIONER :- Mrs. Chitra W/o Gajanan Deshpande,
Aged 56 yrs, Occupation Service, R/o
Deshpande Layout, Ward No.11, Main
Road, Malegaon, Tah. Malegaon, dist.
Washim.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through its
Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2. Zilla Parishad, Washim, Through its Chief
Executive Officer, Washim, Dist. Washim.
3. District Health Officer, Zilla Parishad
Washim, Dist. Washim.
4. Medical Officer, Primary Health Centre,
Jaulaka (Railway),Tah. Malegaon, Dist.
Washim.
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Mr. N.D.Thombre, counsel for the petitioner.
Ms.K.S.Joshi, G.P for respondent No.1
Ms.Arti Singh counsel h/f Mr. P. D. Meghe, counsel for respondent
Nos.2 to 4.
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CORAM : SUNIL B.SHUKRE &
ANIL S.KILOR, JJ.
DATE : 06.10.2021.
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ORAL J U D G M E N T (Per :Sunil B.Shukre, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
3. The order of recovery dated 13.03.2020 directing
recovery of the difference in payment of salary arising from wrong
fixation of the Salary/Grade Pay of the petitioner has been
challenged.
4. Learned counsel for the petitioner submits that this
could not have been done in view of the embargo imposed upon
such an action by the Apex Court in the case of State of Punjab Vs.
Rafiq Masih (White Washer) reported in 2014 DGLS (Soft.)904.
5. The Writ Petition is opposed by the learned counsel for
the respondent Nos.2 to 4 contending that the order of recovery
has been issued in accordance with the undertaking given by the
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petitioner. She has relied upon an undertaking given by the
petitioner on 25.03.2019, a blurred and almost black copy of
which has been filed on record which is Annexure R-II-C.
5. In the case of State of Punjab Vs.Rafiq Masih (supra),
the Hon'ble Apex Court has held that recovery of excess payment
made by the employer to the employee would be impermissible in
law in several situations, some of which are listed in paragraph
No.12 of the judgment. For the purposes of this Writ Petition,
situation No.1 stated in paragraph No.12 is relevant, which reads
as under:
"(i) Recovery from employees belonging
to Class-III and Class-IV service (or
Group C and Group D service)".
6. Undoubtedly, the petitioner is a Group-C employee
and therefore, according to the prohibition imposed in the case of
State of Punjab Vs. Rafiq Masih(supra) no recovery of the payment
allegedly made in excess to her could have been directed and
therefore, on this ground alone, the recovery order dated
13.03.2020 deserves to be quashed and set aside. However,
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before we do so, we also need to take into consideration the
objection of respondent Nos.2 to 4 based upon the undertaking
given by the petitioner.
7. We must note here that while respondents have taken
objection and have also filed a copy of the undertaking, the
respondents have not assisted the Court effectively on these
aspects of the case as the copy of the undertaking filed in, at least
one set of this petition, which is the main set, is illegible.
Therefore, we have tried to understand the statements made in
the undertaking by referring to the copy which is available in the
second set. The copy available in the second set, is little better and
after lot of stretching of the eyes, it has become possible for us to
comprehend its contents. They show that the petitioner has
undertaken that if it was found later on that if any salary has been
paid to her which is inconsistent with the provisions made in
Maharashtra Civil Services (Revised Pay) Rules, 2019 (hereinafter
referred to as the 'Rules of 2019'), she would permit the employer
to deduct the same from whatever future payments which were to
be made to her. This undertaking has been given on 25.03.2019.
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A perusal of the recovery order, impugned herein, however, shows
that there is no reference made therein regarding Rules of 2019.
nor is there any such reason stated as the salary having been paid
in violation of the provisions made in the said Rules of 2019.
There is only one reason stated and which is to the effect that
when the pay Unit of Zilla Parishad, Washim in its camp at
Panchayat Samiti, Malegaon verified the salary paid to the
petitioner, it found that excess salary was paid to her on account
of mistakenly fixing grade pay during the period from 01.07.2013
to 29.02.2020. So, it is obvious that the reason for which recovery
has been ordered is not based upon commission of any violation of
the provisions of the Rules of 2019. Besides, the period during
which excess payment of salary was allegedly made was the
period which was before undertaking was given by the petitioner.
We reiterate that the date of the undertaking is 25.03.2019.
8. For the reasons recorded above, we find that,
respondent Nos.2 and 4 would not be justified in taking recourse
to the undertaking given by the petitioner for defending their
action which is otherwise illegal and in violation of the law laid
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down by the Apex Court. Thus, we find that the impugned order
deserves to be quashed and set aside.
9. The Writ Petition is allowed. Rule is made absolute
accordingly. No costs.
(ANIL S. KILOR,J) (SUNIL B. SHUKRE,J)
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