Bombay High Court
Laxminarayan Sayanna Kadewar vs The State Of Maharashtra And Another on 12 September, 2024
Author: Ravindra V Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:22196-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.15156 OF 2019
Laxminarayan s/o Sayanna Kadewar,
Age-59 years, Occu-Nil,
R/o Near Saptashringi Mata Mandir,
Rameshwar Colony, Plot No.9, Mehrun,
Tq.Mehrun, Dist. Jalgaon -- PETITIONER
VERSUS
1. The State of Maharashtra,
through its Secretary,
Welfare of Vimukta Jatis, Nomadic Tribe,
Other Backward Class and
Special Backward Class Department,
Mantralaya, Mumbai - 32.
2. The Managing Director,
Vasantrao Naik Vimukta Jatis
and Nomadic Tribes Development
Corporation Ltd.,
Juhu Supreme Shopping Center,
Gulmohar Cross Road No.9,
J(RAUTT) Maski D.P.V. Ville Parle (West)
Mumbai - 400 049 -- RESPONDENTS
Mr.V.S.Valse, Advocate for the Petitioner.
Mr.N.D.Batule, AGP for Respondent No.1.
Mr.N.N.Patil, Advocate for Respondent No.2.
( CORAM : RAVINDRA V. GHUGE AND
Y.G.KHOBRAGADE, JJ.)
DATE : SEPTEMBER 12, 2024
khs/Sep.2024/15156
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ORAL JUDGMENT [ Per Ravindra V Ghuge, J] :
1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. The Petitioner has put forth prayer clause B, C and D as
under :-
"B. Be pleased to quash and set aside the communication dated
15.10.2019 (Exh."H") issued by the Managing Director of Vasantrao
Naik Vimukta Jatis and Nomadic Tribes Development Corporation Ltd.,
Mumbai.
C. Be pleased to direct the Manging Director of Vasantrao Naik Vimukta
Jatis and Nomadic Tribes Development Corporation Ltd., Mumbai to
release the pensionary and retirement benefits of the Petitioner of
Rs.6,69,440/- at the earliest, preferably within one month.
D. Pending hearing and final disposal of this writ petition, be pleased to
stay the effect and operation of the communication dated 15.10.2019
issued by the Manging Director of Vasantrao Naik Vimukta Jatis and
Nomadic Tribes Development Corporation Ltd., Mumbai."
3. By the first order passed by this Court [S.V.Gangapurwala
(as his Lordship then was) and Avinash G.Gharote, JJ.] dated
17.12.2019, the Respondent/Employer was injuncted from making
further recovery of amounts in pursuance to the impugned order dated
15.10.2019.
4. The Petitioner was appointed on daily wages as a Peon on
03.03.1986 . On 26.06.2012, the Government Resolution was issued
applying the 6th Pay Commission Recommendations to the employees of
the Vasantrao Naik Vimukta Jati and Bhatkya Jamati Vikas
Mahamandal/Respondent No.2 herein. On 31.05.2018, the Petitioner
superannuated as a Peon from the Class 4 category.
5. The impugned order is issued on 15.10.2019, after 17
months of the retirement of the Petitioner, thereby concluding that he
was wrongfully paid increments as well as difference of salary, as per
the 6th Pay Commission Recommendations and which had an effect on
the calculations of his leave encashment for 300 days. As per the
calculations of the employer, the Petitioner stood to earn Rs.2,27,960/-
towards leave encashment and group gratuity amount of Rs.4,51,480/-.
The total amount was Rs.6,79,440/-. Since the employer concluded
that excess amount was paid to the Petitioner, an amount of
Rs.1,53,112/- towards the pay scale and an amount of Rs.2,15,959/- on
the basis of the added increment, viz. total amount of Rs.3,69,071/-,
was sought to be recovered. Accordingly, the said amount was
deducted from the total retiral benefits and the Petitioner was paid
Rs.3,10,369/-.
6. The employer has taken a stand vide the affidavit in reply
that excess payment was made to the Petitioner by virtue of the GR
dated 26.06.2012. The GR indicated that all the employees on regular
employment of V.J.N.T.Corporation are to be granted revised pay scale
as per the recommendations of the 6 th Pay Commission. According to
the employer, the GR proposed that such employees of V.J.N.T. category,
who are not eligible for such benefits, would suffer stoppage of
payment of such benefits, to be recovered from their salaries.
7. According to the employer, the Managing Director
contravened the GR dated 26.06.2012 and granted the 6 th Pay
Commission benefits with arrears and difference of pay w.e.f.
01.01.2006. This was noticed in October 2019, after the Petitioner
superannuated, on 31.05.2018. The Petitioner was deprived of the
retiral benefits and a remainder portion of the said benefits was paid to
the Petitioner after 17 months of his retirement, by with holding an
amount of Rs.3,69,071/-
8. The learned Advocate for the employer points out an
undertaking purportedly executed by the Petitioner. We have perused
the said undertaking. On page no.86, there is a signature scribbled on
a revenue stamp below the date, which is in typed form. Neither the
name of the Petitioner nor his designation as a Peon, neither the District
Collector's office where he was working, nor his address, is mentioned
in the said undertaking. The undertaking carries a date 07.09.2022.
The learned Advocate for the employer submits that the date has
mistakenly appeared on the said document. According to him, there is
no date on the said undertaking.
9. The Employer relies upon the judgment delivered by the
Hon'ble Supreme Court in High Court of Punjab and Haryana and
Others Vs. Jagdev Singh [AIR 2016 SCW 3523]. The facts of the case in
the said judgment are distinguishable. In this case, the undertaking is
undated according to the employer. As a date 07.09.2022 appears on
the undertaking, the same does not seem to be executed earlier in point
of time.
10. In Syed Abdul Qadir and others Vs.State of Bihar and
others, 2009(3) SCC 475 and State of Punjab and others Vs.Rafiq Masih
(White Washer) etc., (2015) 4 SCC 334 = AIR 2015 SC 696, the Law is
settled that firstly the recoveries at the stroke of retirement would be
impermissible. Secondly, the recovery from a Class I employee at the
stroke of retirement or on the verge of retirement, would not be
permitted.
11. In view of Jagdev Singh (supra), we are of the view that, if
an undertaking is executed on the date when the payment, increments
or payment of the monetary benefits commences, such an undertaking
could be pressed into service. In the instant case, the Petitioner is a
Class IV employee. Deductions are carried out 17 months after his
retirement. The undertaking is doubtful. No opportunity of hearing
has been given to him. The Law laid down in Syed Abdul Qadir and
Rafiq Masih (White Washer) (supra), has apparently been ignored by
the employer.
12. In view of the above, this Writ Petition is allowed. The
impugned order dated 15.10.2019 is quashed and set aside. The
deducted amount shall be paid to the Petitioner by Respondent No.2,
within 30 days from today. Interest on the gratuity amount shall be
calculated as is statutorily provided under The Payment of Gratuity Act,
1972 and the same shall be added to the amount withheld, to be paid
within 30 days.
13. Rule is made absolute in the above terms.
( Y.G.KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J.)
