Baburao Kisan Darkonde v. The Zilla Parishad Jalgaon Through Its Chief Executive Officer And Another

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD WRIT PETITION NO.11190 OF 2019 Shaikh Humayun Shaikh Nayyar .. Petitioner The Zilla Parishad, Jalgaon .. Respondents Mr Maheshkumar S. Sonawane, Advocate for respondent no.1 WRIT PETITION NO.340 OF 2018 Dattatray Shankar Bhusande WRIT PETITION NO.341 OF 2018 Laxman Dattatray Wani WRIT WRIT PETITION NO.342 OF 2018 Dhanraj Natthu Chavan ..petitioner

WRIT WRIT PETITION NO.343 OF 2018 Prakash Navalsingh Baviskar WRIT PETITION NO.344 OF 2018 Ravindra Sitaram Mahajan WRIT PETITION NO.345 OF 2018 Pandharinath Bhika Patil WRIT PETITION NO.346 OF 2018 Usha Ranjitsing Rathod

WRIT PETITION NO.347 OF 2018 Baburao Kisan Darkonde WRIT PETITION NO.348 OF 2018 Namdeo Dhondu Patil WRIT PETITION NO.349 OF 2018 Ashok Kruparam Chinchole WRIT PETITION NO.350 OF 2018 Nimba Sonu Teli

WRIT PETITION NO.351 OF 2018 Harchand Balchand Marathe WRIT PETITION NO.352 OF 2018 Shantaram Dayaram Khodke WRIT PETITION NO.353 OF 2018 Ramabai Baburao Dhole AND WRIT PETITION NO.2020 OF 2018 Sushila Ashok Deshmukh .. Respondents

Mr S.B. Munde, Advocate for respondent no.1 WRIT PETITION NO.2025 OF 2018 Kashinath Rama Shimpi .. Respondents Mr S.B. Munde, Advocate for respondent no.1 WRIT PETITION NO.2026 OF 2018 Mansing Padamsing Rajput through its Chief Executive Officer and ors.

.. Respondents Mr S.B. Munde, Advocate for respondent no.1 AND WRIT PETITION NO.8538 OF 2018 Satish Laxman Todkar through its Chief Executive Officer and ors.

.. Respondents Mr S.B. Munde, Advocate for respondent no.1 CORAM : S.V. GANGAPURWALA AND ANIL S. KILOR, JJ.

DATE : 11.09.2019

ORAL ORDER :

1.

The petitioners are challenging the recovery made by the respondents from the retiral benefits.

2.

Mr Patil, learned Counsel for the petitioners relies on the judgment of Apex Court in the case of State of Punjab Vs. Rafiq Masih (White washer), reported in 2015 (4) SCC 334. Learned Counsel submits that after retirement, recovery is made by the respondents from the retiral benefits on the ground that pay fixation was wrongly done. It is not disputed that the petitioners are retired as Class-III employees. 3.

Learned Counsel for respondent-Zilla Parishad submits that the petitioners cannot take advantage of erroneous pay fixation. If the directions are given to refund the amount to the petitioners, then the petitioners would be unjustly enriched. The respondents have authority to recover the amount paid by mistake.

4.

Pay fixation was done in the year 2013. The case of the petitioners is covered by the judgment of Apex Court of State of Punjab Vs. Rafiq Masih (White washer) (supra), wherein the Apex Court 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 employer's right to recover.

5.

All the parameters laid down in the judgment of State of Punjab Vs. Rafiq Masih (supra) are fulfilled. In light of the above, orders to the extent of recovery are quashed and set aside. The respondents shall return the amount recovered from the petitioners within a period of four months from today.

6.

Writ Petitions are disposed of accordingly. No costs. ( ANIL S. KILOR, J.) ( S.V. GANGAPURWALA, J.) vvr