Shri. Satish Bhagwan Ranmale vs The Executive Engineer, Ehv (O And ...
2023 Latest Caselaw 893 Bom

                                                                   51.8414.19-wp.docx

         Digitally
         signed by
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         BASAVRAJ                       CIVIL APPELLATE JURISDICTION
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL    Date:
         2023.01.30                    WRIT PETITION NO. 8414 OF 2019
         14:30:12
         +0530

                      Satish Bhagwan Ranmale                        ..... Petitioner

                             Vs.

                      The Executive Engineer, EHV (O and M)
                      Division, Mah. State Electricity
                      Transmission Co. Ltd. & Anr.                  ..... Respondents


                      Mr. Bhushan A. Bandiwadekar for the Petitioner
                      Ms. Niyati Merchant I/b. MDP & Partners for Respondent Nos.1 & 2


                                             CORAM:      S.V.GANGAPURWALA, ACJ &
                                                         SANDEEP V. MARNE, J.

                                             DATED :     JANUARY 27, 2023

                      P.C.

1. The Petitioner assails the impugned orders/ communications

thereby directing the recovery from the Petitioner towards excess

amount paid.

2. The learned Counsel for the Petitioner submits that on or about

7th November 2008, the Respondents were aware about the

allowances paid to the Petitioner. Though, in the year 2008 they

were aware about the allowances paid to the Petitioner, the

impugned order is passed in the year 2019 seeking recovery of the

amount paid from the year 2008 onwards. The recovery could not

have been claimed after the payment is made prior to five years. The

Basavraj 1/5 51.8414.19-wp.docx

learned Counsel submits that the excess payment allegedly made by

the Respondents is not on account of fraud or misrepresentation on

the part of the Petitioner. The Petitioner has not given any

undertaking that if excess payment is made or wrong pay fixation is

done, the Petitioner would refund the same. The undertaking

obtained by the Respondents in the year 2022 would be of no avail,

as the same is after the recovery order is issued. The learned

Counsel, to substantiate his contentions relies on the judgment of the

Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih

(White Washer) & Ors. 2015 (4) SCC 334).

3. The learned Counsel for the Respondent supports the

impugned order and submits that the Petitioner cannot take benefit

of allowances erroneously paid. The Petitioner is working as a Class-I

Officer.

4. We have considered the submissions canvassed by the parties.

It appears that the Petitioner was paid excess amount from the year

2008 on account of incentive for serving at Padghe. The Petitioner

was transferred on promotion from Padghe to Aurangabad.

Naturally, after being transferred to Aurangabad, the allowance

which is paid to the Petitioner while working at Padaghe (tribal

area) could not have been continued.

Basavraj                                                          2/5
                                               51.8414.19-wp.docx




5.    The Petitioner is working as a Class-I Officer.          In fact the

Petitioner ought to have pointed out this fact to the officer concerned

that he is not entitled for bhatta / allowances to be paid on account of

serving at tribal and/or difficult area, as he was transferred to

Aurangabad which is a non tribal area and also not a hard station.

6. The Petitioner is in service. Recovery claimed is in

installments. It is submitted that Rs.3,24,124/- is already recovered

and the remaining amount due is about Rs.2 lacs and odd. The

Apex Court, in the case of Rafiq Masih (supra), has laid down the

following parameters:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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

Basavraj 3/5 51.8414.19-wp.docx

the employer's right to recover."

7. Admittedly, the Petitioner is not a class-III or class-IV

employee. He is working as a Class-I Officer. The Petitioner is still in

service and recovery claimed is through installments. As the

Petitioner is working as a Class-I officer and still in service, it would

not be iniquitous to claim recovery from the Petitioner. The

Petitioner cannot be permitted to retain the benefits which

knowingly he was not entitled to on the basis of principle of unjust

enrichment.

8. Only because the recovery made is in respect of the excess

allowances paid from the year 2008 that may in itself not entitle the

Petitioner the benefit of judgment of the Apex Court in the case of

Rafiq Masih (supra).

9. The Petitioner was issued with salary slips every month. Upon

being transferred on promotion, the Petitioner was not entitled for

the allowances of serving in tribal/difficult area. The Petitioner

knowingly did not bring this to the notice of the employer. In fact, it

was the duty of the Petitioner who is a Class-I Officer to bring it to

the notice of the employer about he not being entitled to special

allowance payable for Padghe station upon his promotion and

transfer to Aurangabad. It is not the case of wrong pay fixation, but

Basavraj 4/5 51.8414.19-wp.docx

knowingly enjoying the benefits of allowances which he was not

entitled to. Such a conduct is not expected from Class-I Officer.

10. It is submitted by the learned Counsel for the Petitioner that

the Petitioner has paid tax on the amount which is sought to be

recovered. The Petitioner has been benefited with the amount

unjustly for a long time and the Government is not seeking recovery

of amount along with interest. It is only seeking recovery of the

principal amount paid in excess to him. The Petitioner is benefited

with the interest amount for the period during which he enjoyed the

said amount.

11 In light of the above, we are not inclined to accept the

contention of the learned Counsel for the Petitioner. No further

orders are necessary. The Writ Petition is dismissed. No costs.

12    Rule is discharged.




(SANDEEP V. MARNE, J)                    (ACTING CHIEF JUSTICE)




Basavraj                                                           5/5