Bombay High Court
Suryakant Bhaurao Shahu vs The State Of Maharashtra Through ... on 7 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 wp 10902.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 WRIT PETITION NO.10902 OF 2021
Suryakant S/o. Bhaurao Shahu
Age: 62 years, Occ.: Retired,
R/o. Gojegaon, Tq. Mukhed,
Dist.Nanded .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
General Administrative Department
Mantralaya, Mumbai - 32
2. The Chief Executive Officer,
Zilla Parishad, Nanded
3. The Deputy Account & Finance Officer,
Zilla Parishad, Nanded
4. The Medical Officer,
Primary Health Center,
Shahapur, Tq. Degloor,
Dist.Nanded .. Respondents
...
Advocate for Petitioner:
Mr. Jain Vishwajit R (Kamboj)
AGP for Respondent No. 1: Mr. K. N. Lokhande
Advocate for Respondents No. 2 to 4:
Mr. S. B. Pulkundwar
...
CORAM: S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE: 07th OCTOBER, 2021
2 wp 10902.2021
ORAL JUDGMENT (PER S. V. Gangapurwala, J.):
1. Rule. Rule made returnable forthwith. By
consent of parties, the petition is heard finally
at the stage of admission.
2. The petitioner seeks refund of the amount
deducted from the retiral benefits on account of
excess salary paid. It is not disputed that the
petitioner was working as a Class III employee
with respondent no. 2. An amount of Rs. 55,512/-
is deducted from the retiral benefits of the
petitioner on the ground that the petitioner has
paid excess amount due to wrong pay fixation.
3. We have heard the learned Counsel for the
petitioner and the Mr. Pulkundwar, learned
Advocate for the respondents no. 2 to 4.
4. It is not the case of the respondents that
the petitioner had misrepresented and because of
the misrepresentation the respondents had fixed
wrong pay scale. The pay scale was fixed by the
respondents on their own accord. It is the
contention of the respondents that from the date
3 wp 10902.2021
of appointment wrong fixation was done . The same
was much more than five years prior to the date of
recovery.
5. The petitioner would be put to hardship by
the recovery of the said amount.
6. The Judgment of the Apex Court in the Case of
State of Punjab and others Vs. Rafik Masih (White
Washer) etc. reported in 2015 (4) SCC 334 would be
squarely applicable, wherein the Apex Court has
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 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."
4 wp 10902.2021
7. Excess payment has been made for the period
in excess of five years before the order of
recovery. The petitioner was Class III employee.
The recovery is made from the retiral benefits. It
would be iniquitous and harsh to recover the
amount from the petitioner. All the parameters as
laid down in the case of State of Punjab and
others Vs. Rafik Masih (White Washer) etc. cited
supra are applicable in the present case.
8. In the light of above, the impugned order to
the extent of recovery is quashed and set aside.
The respondents shall refund the amount of
Rs.55,512/- to the petitioner preferably within
three (03) months.
9. Rule is accordingly made absolute in above
terms.
10. Writ Petition accordingly stands disposed of.
No costs.
[R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.]
marathe
