Vishwanath Dattatry Hingane v. The State Of Maharashtra Through Its Secretary And Others

1 wp 11260.21

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 11260 OF 2021 Vishwanath Dattatry Hingane .. Petitioner

Versus

The State of Maharashtra and others .. Respondents Shri Vishwajit R.Jain (Kamboj), Advocate for the Petitioner. Shri S. K. Tambe, A.G.P. for the Respondent No. 1. Shri S. B. Pulkundwar, Advocate for Respondent Nos. 2 and 3. CORAM :

S. V. GANGAPURWALA AND R. N. LADDHA, JJ.

DATE :

11TH OCTOBER, 2021.

ORDER :

.

The petitioner seeks refund of the amount deducted from the retiral benefits on account of excess salary paid. It is not disputed that the petitioner was working as a Class III employee with respondent No. 2. An amount of Rs.1,79,167/- is deducted from the retiral benefits of the petitioner on the ground that the petitioner Is paid excess amount due to wrong pay fixation. 2.

We have heard the learned counsel for the petitioner, the learned A. G. P. for the respondent No. 1 and Mr. Pulkundwar, learned advocate for the respondent Nos. 2 and 3. 3.

Mr. Pulkundwar, the learned counsel for respondent Nos. 2 and 3 submits that, the petitioner cannot be benefited because of

2 wp 11260.21 wrong pay fixation. The respondents have rightly passed the order for recovery of an amount of Rs. 1,79,167/-. 4.

It is not the case of the respondents that the petitioner had misrepresented and because of the misrepresentation the respondents had fixed wrong pay scale. The pay scale was fixed by the respondents on their own accord. It is the contention of the respondents that from the date of appointment wrong fixation was done. The same was much more than five years prior to the date of recovery.

5.

The petitioner would be put to hardship by the recovery of the said amount.

6.

The judgment of the Apex Court in the case of State of Punjab and Ors. Vs. Rafik Masih (White Washer) etc. reported in 2015

(4) SCC 334 would be squarely applicable, wherein the Apex Court has 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.

3 wp 11260.21 (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.

Excess payment has been made for the period in excess of five years before the order of recovery. The petitioner was Class III employee. The recovery is made from the retiral benefits. It would be iniquitous and harsh to recover the amount from the petitioner. All the parameters as laid down in the case of Rafik cited supra are applicable in the present case. 8.

In the light of above, the impugned order to the extent of recovery is quashed and set aside. The respondents shall refund the amount of Rs. 1,79,167/- to the petitioner preferably within three months from today.

9.

The writ petition is accordingly disposed of. No costs. [R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.] bsb/Oct.21