Bombay High Court
Dr. Naresh Rangraoji Raut vs The State Of Maharashtra Through ... on 27 March, 2023
Bench: Sandeep V. Marne
2023:BHC-AS:9344-DB
16-WP-14575-2018
Jvs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14575 OF 2018
Dr. Dnyanaba Baliram Range .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 268 OF 2019
Dr. Ganesh Pundalikrao Nichat .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION ST. NO. 12937 OF 2018
Dr. Chandrakant B. Dixit .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 14576 OF 2018
Dr. Naresh Ranraoji Raut .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
Mr. N. V. Bandiwadekar, Senior
Advocate i/b. Ms. Ashwini bandiwadekar
for the petitioners.
Ms. R. A. Salunkhe, AGP for respondent
no. 1 (State).
Mr. Shankar P. Thorat for respondents 2
and 3.
CORAM: S. V. GANGAPURWALA, ACTING CJ. &
SANDEEP V. MARNE, J.
DATE: MARCH 27, 2023
16-WP-14575-2018
ORAL ORDER: (Per - the Acting Chief Justice)
1. Rule. Rule is made returnable forthwith. By consent of the
parties, taken up for final disposal.
2. All these petitioners retired as Extension Officers (Health).
It is not disputed that the same is Class-III post. It appears that
re-pay fixation was done at the time of their retirements. It
transpired that in the years 2006 to 2008, on account of
erroneous pay fixation, excess amount was paid to the
petitioners. After re-pay fixation was done, recovery is also
claimed from the retiral benefits of the petitioners.
3. The learned senior advocate for the petitioners submits that
all these persons retired as Class-III employees. It was not on
account of misrepresentation or fraud by the petitioners that the
respondents had done erroneous pay fixation in the years 2006
to 2008. The petitioners, from time to time, received salary as per
the pay fixation done. It is only at the time of retirement the re-
pay fixation was done and recovery is claimed from the
petitioners. According to the learned senior advocate, the same is
not permissible. Reliance is placed on the decision of the Apex
Court in the case of State of Punjab and others vs. Rafiq Masih
(White Washer) & Ors. reported in 2015 (4) SCC 334.
4. The learned advocate for the respondents submits that the
petitioners can file appeal against re-pay fixation done and/or
recovery claimed under Rule 14 of the Maharashtra Zilla
Parishads District Services (Discipline and Appeal) Rules, 1964.
According to the learned advocate, these petitioners have given
undertakings that if due to erroneous pay fixation excess amount
is paid, they would repay the same or that the respondents would
be entitled to recover the same. Once the undertakings have been
given, the petitioners now cannot agitate that recovery cannot be
made. Reliance is placed upon the judgment of the Apex Court in
16-WP-14575-2018
the case of High Court of Punjab & Haryana & Ors. vs. Jagdev
Singh, reported in AIR 2016 SC 3523.
5. We have considered the submissions canvassed by the
parties.
6. Petitioner Mr. Dixit seems to have given undertaking on
14th March 2014. Petitioner Mr. Range seems to have given
undertaking on 15th October 2014. The undertaking of petitioner
Mr. Nichat, it appears, is of the year 2015. No such undertaking is
said to have been given by petitioner Mr. Raut. Mr. Range retired
on 31st December 2012, Mr. Raut retired on 30th November 2013,
Mr. Dixit retired on 30th June 2016 and Mr. Nichat retired on 31st
January 2016. The pay fixation, it appears, is done in the year
2008 and at that time, it appears that the respondents committed
an error of granting higher Grade-Pay. All these undertakings are
much subsequent to the benefit given. The undertaking of
Mr.Range is after his retirement. The undertaking of Mr. Dixit is
just prior to his retirement. Mr. Nichat's undertaking also
appears to be in the year 2015 and he retired in January 2016.
At the time of grant of higher grade pay, no such undertakings
were given. The first time-bound benefit was given on 10th April
2008 with effect from 10th January 1990 and at that time, some
erroneous pay fixation was done.
7. The Apex Court in the case of Rafiq Masih (supra) has laid
down the following parameters: -
"18. It is not possible to postulate all situations of hardship
which would govern employees on the issue of recovery,
where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may,
based on the decisions referred to hereinabove, we may, as a
ready reference, summarise the following few situations,
wherein recoveries by the employers, would be impermissible
in law:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group C and Group D service).
16-WP-14575-2018
(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.
8. The aforesaid criteria laid down by the Apex Court is
attracted in the present case. Recovery is claimed from the retiral
benefits of the petitioners. Wrong pay fixation is not at the behest
of the petitioners nor on account of their misrepresentation. It
would be iniquitous to recover the amount from the retiral
benefits. Hardship would be caused to the petitioners.
9. In the case of Jagdev Singh (supra), the recovery claimed
was from a Class-I officer. The respondent therein was a judicial
officer. He was initially placed under suspension and then
compulsorily retired. In the said case, the revised pay-scale was
granted to him after he furnished an undertaking. In the present
case, at the time of granting the benefit of the revised pay-scale,
no undertaking was taken from the petitioners. The undertakings
were taken later on; in some cases, after retirement. The
judgment in Jagdev Singh (supra) would therefore not apply to
the facts in the present case. The facts of the present case are
similar to the facts in the case of Rafiq Masih (supra).
10. In light of the above discussion, we pass the following order:
(i) The impugned order to the extent of recovery is
quashed and set aside.
16-WP-14575-2018
(ii) The order with regard to re-pay fixation done is not
interfered with.
(iii) The amount, if recovered from the petitioners, shall be
refunded to them within 4 (four) months.
11. Rule is made absolute in the aforesaid terms. The writ
petitions are disposed of.
12. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
