Bombay High Court
Luis Santana Rosario Estibeiro vs The Registrar, Goa State Consumer ... on 13 March, 2025
Author: M.S. Sonak
Bench: M. S. Sonak
2025:BHC-GOA:471-DB 24 WP 21 OF 2025.ODT
2025:BHC-GOA:471-DB
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 21 OF 2025
Luis Santana Rosario Estibeiro, aged 62
years, retired Bailiff, R/o H. No. V-180,
Mhalea-Tollem, Panchawadi, Ponda,
Goa. ... PETITIONER
Versus
1. The Registrar, Goa State Consumer
Disputes Redressal Commission,
State of Goa, 5th Floor, Junta House
Building, Panaji-Goa.
2. The Department of Civil Supplies
and Consumer Affairs, Through its
Director, II-Floor, Junta House
Building, Panaji-Goa.
3. The State of Goa, Through Chief
Secretary, Administrative Block,
Porvorim-Goa. ... RESPONDENTS
***
Mr. Vallabh D. Pangam, Advocate for the Petitioner.
Mr. Devidas J. Pangam, Advocate General with Mr. Geetesh
Shetye, Additional Government Advocate for the Respondents.
CORAM: ALOK ARADHE, CJ. &
M. S. SONAK, J.
DATED: 13th MARCH 2025
ORAL JUDGMENT: [per M.S. Sonak, J.]
1. Heard Mr. Vallabh Pangam, learned Counsel for the
Petitioner and the learned Advocate General appearing along with
Mr. Shetye, learned Additional Government Advocate for the
Respondents.
13th March 2025
24 WP 21 OF 2025.ODT
2. Rule. The Rule is made returnable immediately at the
request and with the consent of the learned Counsel for the
parties.
3. The Petitioner is a Group 'D' employee, who retired as a
Bailiff from the Consumer Affairs Division, Department of Civil
Supplies and Consumer Affairs, State of Goa on 29.04.2022. The
Petitioner's retiral dues were paid after deducting an amount of
Rs.1,82,587/- on the grounds of incorrect pay fixation. There is no
allegation that the Petitioner was in any manner responsible for
this alleged incorrect pay fixation. There is also no record of any
compliance with the principles of natural justice and fair play
before this conclusion was reached and deduction made.
4. Mr. Vallabh Pangam relied on the decision of the Hon'ble
Supreme Court in the case of Thomas Daniel Vs. State of
Kerala & Others, 2022 AIR (SC) 2153 and State of Punjab
& Others Vs. Rafiq Masih (White Washer) & Others, 2015
4 SCC 334, to submit that no recoveries could be made from a
Group 'D' employee, post-retirement.
5. Mr. Vallabh Pangam also relied upon the office
memorandum dated 07.03.2017 read with the office
memorandum dated 02.03.2016, to submit that recoveries were
13th March 2025
24 WP 21 OF 2025.ODT
contrary to law and in breach of the decision of the Hon'ble
Supreme Court in Rafiq Masih (supra).
6. In Rafiq Masih (supra), the Hon'ble Supreme Court has
summarized certain 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).
(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 employee,
would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of
the employer's right to recover."
7. Based on the decision of the Hon'ble Supreme Court, the
Central Government has issued an office memorandum dated
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24 WP 21 OF 2025.ODT
02.03.2016, which has been adopted by the State Government
dated 07.03.2017.
8. The recoveries in the present case are in breach of the office
memoranda and the decision of the Hon'ble Supreme Court in the
case of Rafiq Masih (supra). Learned Advocate General fairly did
not defend the recoveries and stated that this amount of
Rs.1,82,587/- would be paid to the Petitioner within two months
from today.
9. Accordingly, we set aside the order dated 27.09.2024 and
direct the Respondents to refund the amount of Rs.1,82,587/- as
expeditiously as possible and in any event, within two months
from today. However, if there is any delay in refunding the said
amount, then this amount shall carry interest at the rate of 6% per
annum from the date this amount became due i.e. the date on
which the other retiral benefits were paid to the Petitioner, till
actual payment.
10. The Rule is made absolute in the above terms with no cost
order.
M. S. SONAK, J. CHIEF JUSTICE
13th March 2025
