Bombay High Court
Arif Abdul Wahab Shaikh vs The State Of Maharashtra Thr. ... on 2 March, 2023
Bench: Sandeep V. Marne
SALUNKE 1/3
JV 19-WP.8707.2021.
Digitally signed
by SALUNKE J V
Date: 2023.03.03
10:56:37 +0530
Jvs. IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8707 OF 2021
Shri. Arif Abdul Wahab Shaikh } Petitioner
versus
The State of Maharashtra & Ors. } Respondents
Mr. Anuj Tiwari with Ms. Saba Anjum for
the petitioner.
Ms. R. A. Salunkhe, AGP for State.
CORAM : S.V. GANGAPURWALA, ACJ. &
SANDEEP V. MARNE, J.
DATED : MARCH 2, 2023
P.C. :-
1. Heard learned counsel for the petitioner and the learned
AGP. The petitioner is challenging the pension payment order
withholding amount from the gratuity on the ground that the
petitioner during service were paid excess salary due to wrong
fixation.
2. Learned AGP submits that the petitioner's remedy is
before the Maharashtra Administrative Tribunal. The
petitioner has moved this court after six years. According to
the learned AGP as on wrong premise pay fixation was done
and excess salary was paid, respondents are entitled to
recover the same from the retiral benefits.
3. The learned counsel for the petitioner 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.
19-WP.8707.2021.
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 petitioner is 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 petitioner has retired from service and claim the
refund of the amount recovered from them on account of
excess payment made to them towards over payment and
allowances. The petitioner relies 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 petitioner was working on Class-III post on the date
of retirement. It would cause hardship to the petitioner if the
19-WP.8707.2021.
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.
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 petitioner, the same shall be refunded to
the petitioner expeditiously and preferably within four (04)
months.
9. The Writ Petition is accordingly disposed of. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
