Bombay High Court
Ansar Ismail Beg vs The State Of Maharashtra And Anr on 3 February, 2023
Bench: Sandeep V. Marne
1/4
906-WP-8706-2021.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8706 OF 2021
Ansar Ismail Beg ... Petitioner
vs.
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO. 8705 OF 2021
Vajiuddin Hisamoddin Inamdar ... Petitioner
vs.
The State of Maharashtra and Anr. ... Respondents
Mr. Anuj Tiwari a/w. Ms. Saba A. for the Petitioner in both
Petitions. .
Mr. B. V. Samant, AGP for the State.
CORAM : S.V. GANGAPURWALA, ACJ. &
SANDEEP V. MARNE, J.
DATED : 3 FEBRUARY, 2023
P.C. :-
1. Heard learned counsel for the petitioners and the learned
AGP. The petitioners are challenging the pension payment
order withholding amount from the gratuity on the ground
that the petitioners during service were paid excess salary due
Digitally signed
by RAJESHWARI
RAJESHWARI RAMESH PILLAI
RAMESH
PILLAI
Date:
2023.02.06
to wrong fixation.
12:14:03 +0530
906-WP-8706-2021.doc
2. Learned AGP submits that the petitioner's remedy is
before the Maharashtra Administrative Tribunal. The
petitioners have moved this court after six years. According to
the learned AGP as on wrong premise pay fixation was done
and excess salary was paid. Respondent is entitled to recover
the same from the retiral benefits.
3. The learned counsel for the petitioners submits that this
court in case of similarly situated persons, has set aside the
order of recovery and directed to refund the amount of 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 12.02.2016 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
906-WP-8706-2021.doc
excess payment made to them towards over payment and
allowances. 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 :-
(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 employees, would
be iniquitous or harsh or arbitrary to such an extent, as
would far outweigh the equitable balance of the employers
right to recovery.
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 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.
906-WP-8706-2021.doc
8. In light of the above, the impugned order of recovery is
quashed and set aside. In case the respondents have recovered
the amount from the petitioners, the same shall be refunded to
the petitioners expeditiously and preferably within four (04)
months.
9. The Writ Petitions are accordingly disposed of. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
