Bombay High Court
Abdul Halim Abdul Munir And Others vs The State Of Maharashtra And ... on 19 January, 2022
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
1 wp 1040.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
978 WRIT PETITION NO.1040 OF 2022
ABDUL HALIM ABDUL MUNIR AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners:
Mr. Ketan Pote h/f. Mr. Ambetkar Arvind G
AGP for Respondents: Mr. S. B. Yawalkar
...
CORAM: S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI,J.
DATE: 19th JANUARY, 2022
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
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which recovery was made on account of wrong
fixation.
4. The learned Counsel refers to the
Judgment and Order 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 :-
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"(i) Recovery from employees belonging to
Class-III and Class-IV service (or Group
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. 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
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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) months from the date
the petitioners submitting the details and the
chart.
10. The Writ Petition is accordingly disposed
of. No costs.
[SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.]
marathe
