Bombay High Court
Indrajeet S/O Laxman Patle vs State Of Maharashtra, Thr. Secretary, ... on 22 December, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17626-DB
61.wp7599.2022jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7599 OF 2022
Indrajeet s/o Laxman Patle
Aged about 60 years,
Occupation - Nil, R/o. T.B. Toli, ... Petitioner
At and post - Gondia,
Tah. & District - Gondia
Versus
1. State of Maharashtra,
Through its Secretary,
General Administrative Department,
Mantralaya, Mumbai - 400 032.
2. Zilla Parishad, Gondia,
Through its Chief Executive Officer, ... Respondents
Gondia, Tah. & District - Gondia.
3. Deputy Chief Accounts and Finance Officer,
Zilla Parishad, Gondia,
Tah. & District - Gondia.
4. Block Development Officer,
Panchayat Samiti, Gondia,
Tah. & District - Gondia.
Mr. I.N. Choudhari, Advocate for petitioner.
Ms. Ritu Sharma, AGP for respondent No.1.
Mr. A.M. Dixit, Advocate for respondent Nos.2 to 4.
CORAM : SMT. ANUJA PRABHUDESSAI, AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT : 11.12.2023.
DATE OF PRONOUNCEMENT OF JUDGMENT : 22.12.2023
JUDGMENT :
(PER: Mrs.Anuja Prabhudessai, J)
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RULE. Rule made returnable forthwith. Heard finally by
consent of both the learned counsel for the parties.
2. By this petition, filed under Article 226 of the Constitution
of India, the petitioner seeks following reliefs :
(i) To quash and set aside order dated 18.12.2018
issued by respondent No.3 - The Deputy Chief Accounts
and Finance Officer, Zilla Parishad, Gondia, to the extent
of recovery of Rs.2,30,456/- towards alleged computer
recovery and held that the impugned recovery is bad and
illegal ;
(ii) Direct the respondents to pay the recovered
amount of Rs.2,30,456/- towards computer recvoery
amount from the death cum service gratuity amount as
per order dated 18.12.2018 to the petitioner along with
18% interest.
3. The brief facts necessary to decide this petition are as
under :-
The wife of the petitioner was appointed on 21.11.1986 as
Assistant Teacher in Primary School run by Zilla Parishad, Bhandara,
Tah. & District - Bhandara. She was lateron transferred to Zilla
Parishad Primary School, Kudwa (Gondia). She died on 03.12.2017
while in service.
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4. The respondent No.3 - Deputy Chief Accounts and Finance
Officer, Zilla Parishad, Gondia, issued Family Pension payment release
order and Death cum Service Gratuity release order on 13.12.2018 and
18.12.2018, respectively. The respondent no.3, by order dated
18.12.2018 withheld an amount of Rs.2,30,456/- from the death cum
retiral benefits payable to the petitioner on the ground that the wife of
the petitioner had not submitted Computer Training Certificate within
the prescribed time.
5. The reply filed by the respondents indicates that the
recovery is directed on the premise that wife of the petitioner had
failed to submit the Computer Training Certificate on or before
31.12.2007. It is further submitted that the wife of the petitioner,
while opting for the benefit of pay scale, had given an undertaking to
refund the excess payment, if any. It is stated that the petitioner is
bound by the said undertaking.
6. Learned counsel for the petitioner submits that the
respondent has neither conducted any enquiry nor sought to recover
the excess amount during the life time of the deceased employee. It is
stated that such belated recovery is arbitrary, illegal and unjustified
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and would result in immense mental trauma and hardship. He has
placed reliance on the decision of the Apex Court in State of
Punjab .vs. Rafiq Masih, reported at (2014) 8 SCC 883 and the
decision of Division Bench of this Court in Writ Petition No.
2566/2022 (Smt. Pramila Wd/o Purushottam Bopche .vs. State of
Maharashtra and others) with bunch of petitions.
7. Per contra, learned counsel for respondents- Zilla Parishad
submits that while opting for the benefit of pay-scale, the deceased
employee had furnished an undertaking that the excess amount, if any,
would be refunded. He relied on the decision of the Apex Court in
State of Punjab .vs. Jagdeo Singh, reported at (2016) 14 SCC 267. He
submits that the petitioner is bound by the said undertaking and
cannot avoid recovery of the amount paid in excess.
8. We have perused the records and considered the
submissions made by learned counsel for the respective parties.
9. Before adverting to the facts of the present case, it would
be useful to refer to the decision of the Apex Court in Thomas
Danial .vs. State of Kerala, reported at 2022 SCC Online SC 536
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=(2022 Live Law (SC) 238), in which the the Apex Court has observed
as follows :
"9. This Court in a catena of decisions has
consistently held that if the excess amount was not
paid on account of any misrepresentation or fraud of
the employee or if such excess payment was made by
the employer by applying a wrong principle for
calculating the pay/allowance or on the basis of a
particular interpretation of rule/order which is
subsequently found to be erroneous, such excess
payment of emoluments or allowances are not
recoverable. This relief against the recovery is
granted not because of any right of the employees
but in equity, exercising judicial discretion to provide
relief to the employees from the hardship that will be
caused if the recovery is ordered. This Court has
further held that if in a given case, it is proved that
an employee had knowledge that the payment
received was in excess of what was due or wrongly
paid, or in cases where error is detected or corrected
within a short time of wrong payment, the matter
being in the realm of judicial discretion, the courts
may on the facts and circumstances of any particular
case order for recovery of amount paid in excess."
10. In the instant case, the records indicate that the wife of the
petitioner was required to furnish Computer Training Certificate on or
before 31.12.2007. She was paid the increment even though she had
failed to submit the said certificate. The amount paid in excess is
sought to be recovered after death of the employee on the basis of an
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undertaking given by her at the time of opting for benefit of pay-scale
to refund the excess amount, if any. Such recovery is sought by totally
ignoring the fact that said computer certificate was in fact submitted in
the year 2014. The facts of the case do not indicate that the amount
was paid on the basis of misrepresentation or fraud on the part of
deceased employee. Moreover, no action was taken during the life
time of the employee. In such circumstances, the action of recovery is
arbitrary, illegal, unjustified and would entail undue hardship and
hence, the same cannot be approved.
11. In the light of the above, the writ petition is allowed in
terms of prayer clauses (i) and (ii). Rule is made absolute. No order
as to costs.
[MRS.VRUSHALI V. JOSHI, J.] [SMT. ANUJA PRABHUDESSAI J.]
Signed by: DIWALE PPDiwale, PAGE 6 OF 6
Designation: PS To Honourable Judge
Date: 26/12/2023 14:37:22
