Maroti Virbhadra Gagilge v. The State Of Maharashtra And Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 7814 OF 2014 Vilas s/o Ganpatrao Mahajan, Age : 56 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Mukhed, R/o: Nanded, District Nanded.

Deputy Engineer (Construction) Sub Division Zilla Parishad, Mukhed.

Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7851 OF 2014 Vaijanath s/o Laxman Galande, Age : 57 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Nanded, R/o: Nanded, District Nanded.

-2Deputy Engineer (Construction) Sub Division Zilla Parishad, Nanded.

Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam. WRIT PETITION NO. 7882 OF 2014 Renukadas s/o Vasantrao pande, Age : 59 years, Occ: Pensioner, R/o: Kinwat, District Nanded.

AGP for respondent no. 1 : Mr. D. R. Korde Advocate for respondent nos. 2 and 3 : Mr. N. S. Kadam.

-3WRIT PETITION NO. 7883 OF 2014 Shobha d/o Pandurang Kalaskar, Age : 54 years, Occ: Civil Engineer Asst.

Panchayat Samiti, Nanded, R/o: Nanded, District Nanded.

Block Development Officer Class-1, Panchayat Samiti, Nanded.

Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7884 OF 2014 Umesh s/o Digambarrao Joshi Age : 56 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Kandhar, R/o: Kandhar, District Nanded.

-4Deputy Engineer (Construction) Sub Division Zilla Parishad, Kandhar, Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7885 OF 2014 Shaikh Md. Nawaj Md. Maulana, Age : 56 years, Occ: Civil Engineer Asst.

Pandhayat Samiti Naigaon-Khairgaon, R/o: Junegaon, Naigaon Bazar, Taluka : Naigaon-Khairgaon, Block Development Officer Class-1,

-5Panchayat Samiti Naigaon (Khairgaon), Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7886 OF 2014 Laxman s/o Apparao Kore, Age : 57 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Biloli, R/o: Gadga, Taluka : Naigaon, Deputy Engineer (Works) Zilla Parishad Sub Division, Biloli, Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam.

-6WRIT PETITION NO. 7887 OF 2014 Syed Kareem Sarvar, Age : 53 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Bhokar, R/o: Nanded, District Nanded.

Deputy Engineer (Construction) Zilla parishad Sub Division, Bhokar, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam. WRIT PETITION NO. 7888 OF 2014 Manik Deorao Tatewad, Died through Lrs.

Yamunabai w/o Manik Tatewad, Age : 55 years, Occ: H.H.

R/o: Kinwat, District Nanded.

-7AGP for respondent no. 1 : Mr. D. R. Korde Advocate for respondent nos. 2 and 3 : Mr. N. S. Kadam. WRIT PETITION NO. 7889 OF 2014 Gangadhar s/o Mariba Karandikar, Age : 57 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Hadgaon, R/o: Bhokar, District Nanded.

Deputy Engineer (Construction) Sub Division Zilla Parishad, Hadgaon, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam.

-8WRIT PETITION NO. 7890 OF 2014 Raju s/o Gajananrao Thorkar, Age : 50 years, Occ: Civil Engineer Asst.

Panchatay Samiti Ardhapur, R/o: Nanded, District Nanded.

Block Development Officer, Panchayat Samiti, Mahur, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam. WRIT PETITION NO. 7891 OF 2014 Maroti s/o Virbhadra Gagilge, Age : 59 years, Occ: Pensioner, R/o: Nanded, District Nanded.

-9Deputy Engineer (Construction) Sub Division Zilla Parishad, Biloli, Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7892 OF 2014 Revan s/o Sidhappa Hegu, Age : 57 years, Occ: Civil Engineer Asst.

Panchayat Samiti Ardhapur, R/o: Nanded, District Nanded.

Block Development Officer,

-10Panchayat Samiti Ardhapur, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam. WRIT PETITION NO. 7893 OF 2014 Shankar s/o Ramlu Katkam, Age : 56 years, Occ: Civil Engineer Asst.

Zilla Parishad Sub Diviaion Bhokar, R/o: Bhokar, District Nanded.

Deputy Engineer (Construction) Sub Division Zilla Parishad, Bhokar, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam.

-11WRIT PETITION NO. 7894 OF 2014 Shridhar s/o Bhagwantrao Kulkarni, Age : 53 years, Occ : Civil Engineer Asst.

Zilla Parishad Sub Diviaion Biloli, R/o: Degloor, Taluka : Degloor, Deputy Engineer (Works) Zilla Parishad Sub Division Biloli, Advocate for respondent nos. 3 to 6 : Mr. N. S. Kadam. WRIT PETITION NO. 7895 OF 2014 Usman Akramkhan Pathan, Age : 57 years, Occ: Civil Engineer Asst.

Panchayat Samiti Himayatnagar, R/o: Nanded, District Nanded.

-12Block Development Officer, Panchayat Samiti Himayat Nagar, Advocate for respondent nos. 3 and 4 : Mr. N. S. Kadam. WRIT PETITION NO. 8454 OF 2014 Sudhakar s/o Rambhat Joshi, Age : 63 years, Occ: Pensioner, R/o: Sagroli, Taluka Biloli, AGP for respondent no. 1 : Mr. D. R. Korde Advocate for respondent nos. 2 and 3 : Mr. N. S. Kadam.

-13WRIT PETITION NO. 8462 OF 2014 Ibrahim Peer Ahmed, Age : 60 years, Occ: Pensioner, R/o: Nanded, Taluka Nanded, AGP for respondent no. 1 : Mr. D. R. Korde Advocate for respondent nos. 2 and 3 : Mr. N. S. Kadam. CORAM : S. V. GANGAPURWALA AND V. K. JADHAV, JJ.

DATED : 2nd JULY, 2015 ORAL JUDGMENT (PER S. V. GANGAPURWALA, J.) :- Rule. Rule returnable forthwith. By consent of parties, taken up for final hearing at admission stage.

In all these matters, the petitioners assail the orders claiming recovery from them on account of wrong pay fixation.

-14Mr. Sakolkar, the learned counsel for petitioners, strenuously contends that recovery in all these matters is beyond five (05) years. Some of the petitioners have retired and some of the petitioners are on the verge of retirement. The learned counsel submits that in such cases, recovery cannot be claimed against the petitioners even assuming that the pay fixation was wrong. According to the learned counsel, the pay fixation was not on account of any misrepresentation on the part of the petitioners. In such cases, recovery cannot be claimed. The counsel for the petitioners placed reliance on the judgment of the Apex Court in a case of State of Punjab and others v/s. Rafiq Masih (White Washer) dated 18.12.2014.

The learned AGP and Mr. Kadam, learned counsel for Zilla Parishad submit that wrong pay fixation was done and wrongly excess payment has been paid to the petitioners. As such, respondents have every right to recover the same. It is not disputed that in all these matters some of the petitioners have retired and some of the petitioners are on the verge of retirement. It is also not disputed that recovery claimed is beyond five (5) years. The Apex Court, in a case of State of Punjab (supra) in paragraph no. 12, has observed as under:

-15- "12. 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 herein above, 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). (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."

-16The case of the present petitioners would be squarely covered by the judgment in the case of State of Punjab (Supra). Some of the petitioners have retired and some are on the verge of retirement. The recovery also is for a period beyond 5 years, as such the present case is covered by eventualities as laid down in paragraph nos. 12(ii) and (iii) of the judgment of Apex Court in the case of State of Punjab (referred supra).

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In the light of the above, the writ petitions are allowed. The impugned orders claiming recovery against the petitioners are quashed and set aside. In case the respondents, pursuant to the said orders of recovery, have recovered some amount from the petitioners, then the respondents shall refund the said amount to the petitioners expeditiously and preferably within a period of six (06) months.

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Rule is accordingly made absolute. No costs. ( V. K. JADHAV, J.) ( S. V. GANGAPURWALA, J. ) rlj/

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