Bombay High Court
Prakash Devsing Rathod vs The State Of Maharashtra And ... on 23 September, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 996-wp 9729-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9729 OF 2021
Prakash Devsing Rathod
Age : 61 years, Occu. Retired,
R/o Amne (Khurd), Tq. Mahagaon
Dist. Yevatmal .. Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
General Administrative Department
Mantralaya, Mumbai - 32.
2. The Chief Executive Officer
Zilha Parishad, Nanded
3. The Deputy Account & Finance Officer
Zilha Parishad, Nanded
4. The Medical Officer
Primary Health Center
Evaleshwar, Tq. Mahur Dist. Nanded .. Respondents
Mr. Vishwajeet R. Jain (Kamboj), Advocate for the Petitioner.
Mrs. V. N. Patil-Jadhav, AGP for Respondent No. 1.
Mr. S. B. Pulkundwar, Advocate for Respondent Nos. 2 to 4.
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 23rd September, 2021.
ORAL JUDGMENT (PER S. V. GANGAPURWALA, J.) :-
. Rule. Rule made returnable forthwith. By consent of parties, the
petition is heard finally at the stage of admission.
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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.1,65,885/- 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
Mr. Pulkundwar, learned advocate for the respondent Nos. 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 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 Ors. 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 :-
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"(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."
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 Rafik cited supra are applicable
in the present case.
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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. 1,65,885/- to the petitioner preferably within a period of
three (03) months from today.
9. Rule is accordingly made absolute in above terms. No costs.
( R. N. LADDHA ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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