Bombay High Court
Aabasaheb Dhondiram Kakde vs The State Of Maharashtra And ... on 29 September, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13450 OF 2019
Aabasaheb Dhondiram Kakde .. Petitioner
Versus
The State of Maharashtra and others .. Respondents
Mr. Sudhir K. Chavan, Advocate for the Petitioner.
Mr. P. K. Lakhotiya, AGP for Respondent No. 1.
Mr. N. U. Yadav, Advocate for Respondent Nos. 2 to 4.
WITH
WRIT PETITION NO. 13473 OF 2019
Taher Sandu Deshmukh .. Petitioner
Versus
The State of Maharashtra and others .. Respondents
Mr. Sudhir K. Chavan, Advocate for the Petitioner.
Mr. P. K. Lakhotiya, AGP for Respondent No. 1.
Mr. N. U. Yadav, Advocate for Respondent Nos. 2 to 4.
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 29th September, 2021.
PER COURT:-
1. Mr. Chavan, learned counsel for the petitioners submits
that, under order dated 23.09.2019, repay fixation has been
done and recovery is claimed. The present petitions are filed only
to the extent of recovery claimed. The learned counsel relies on
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the judgment of the Hon'ble Apex Court in the case of State of
Punjab Vs. Rafique Masih (WhiteWasher) etc. reported in AIR
2015 SC 696.
2. The learned counsel for the respondents No. 2 to 4 submits
that, in fact the petitioners had given an undertaking that if pay
fixation is erroneously done, the recovery be claimed. He relies
on the judgment of the Hon'ble Apex Court in the case of High
Court of Punjab & Haryana & Ors. Vs. Jagdev Singh reported in
(2016) 14 SCC 267.
3. In the case of High Court of Punjab & Haryana Vs. Jagdev
Singh (supra), the employee therein was a Judicial Magistrate
First Class and in light of that, the court had held that, recovery
could be claimed.
4. In the present case, the petitioners were Class-III
employees. After their retirement, on 23.09.2019 repay fixation
has been done and recovery is claimed from the retiral benefits.
The same would cause hardship to the petitioners. It is also
accepted by the respondents that the recovery is claimed from
the year 2006 onwards i.e. beyond five years. The parameters as
laid down by the Hon'ble Supreme Court in the case of State of
Punjab (supra) squarely apply to the present cases. The same
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parameters are reproduced below.
12. 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 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.
6. In the light of the above, the impugned order to the extent
of recovery only is quashed and set aside. If any recovery is made
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pursuant to the impugned order, the same shall be refunded to
the petitioners within a period of three months.
7. Writ Petitions are disposed of. No costs.
( R. N. LADDHA ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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