RAVINDRA v. GHUGE AND R. M. JOSHI, JJ.DATE
Legal Reasoning
related to computer knowledge an action of withholding the promotionand pay scale was sought therein. Thereafter by Government Resolutiondated 26th November, 2020 has clarified that the extension till 31stDecember, 2007 should be considered as the final extension foremployees in Group-A, Group-B and Group-C. It is claimed that thePetitioner had issued consent letter 19th April, 2022 permitting theCorporation to deduct Rs.2,36,974/- for not furnishing MS-CIT certificatetill April, 2014.4.We have extensively heard rival contentions of learnedAdvocates for both the sides and perused pleadings and documentsplaced on record.5.There is no dispute about the fact that the Petitioner was inthe employment of Respondent-Corporation and had superannuated on30th April, 2022. Undeniably, Petitioner did not acquire MS-CIT certificatetill April, 2014, however, the same has been acquired subsequently in2021. Now question arises before us is as to whether the Respondentscan be permitted to recover the amount for non furnishing of the MS-CITcertificate till April, 2014, at the fag end of her service.6.In order to decide the controversy involved herein it would befruitful to refer to the judgment of the Hon’ble Supreme Court in SyedAbdul Qadir and Others Versus State of Bihar and Others, (2009)3 SCC475, has held in paragraph Nos.57, 58, 59 read as under:wp.2803.24.odt3 of 7 “57. This Court, in a catena of decisions, has grantedrelief against recovery of excess payment ofemoluments/allowances if (a) the excess amount wasnot paid on account of any misrepresentation or fraudon the part of the employee, and (b) if such excesspayment was made by the employer by applying awrong principle for calculating the pay/allowance or onthe basis of a particular interpretation of rule/order,which is subsequently found to be erroneous. 58.The relief against recovery is granted by courts notbecause of any right in the employees, but in equity,exercising judicial discretion to relieve the employeesfrom the hardship that will be caused if recovery isordered. But, if in a given case, it is proved that theemployee had knowledge that the payment received wasin excess of what was due or wrongly paid, or in caseswhere the error is detected or corrected within a shorttime of wrong payment, the matter being in the realm ofjudicial discretion, courts may, on the facts andcircumstances of any particular case, order for recoveryof the amount paid in excess. See Sahib Ram v. State ofHaryana, Shyam Babu Verma v. Union of India, Union ofIndia v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Akkara [Retd.] v. Government of India, Purshottam LalDas v. State of Bihar, Punjab National Bank V. ManjeetSingh and Bihar SEB V. Bijay Bhadur.59.Undoubtedly, the excess amount that has beenpaid to the appellants teachers was not because of anymisrepresentation or fraud on their part and theappellants also had no knowledge that the amount thatwas being paid to them was more than what they wereentitled to. It would not be out of place to mention herethat the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake ontheir part. The excess payment made was the result ofwrong interpretation of the rule that was applicable tothem, for which the appellants cannot be heldresponsible. Rather, the whole confusion was because ofinaction, negligence and carelessness of the officialsconcerned of the Government of Bihar. Learned counselappearing on behalf of the appellants teacherssubmitted that majority of the beneficiaries have eitherretired or are on the verge of it. Keeping in view thepeculiar facts and circumstances of the case at hand andwp.2803.24.odt4 of 7 to avoid any hardship to the appellants teachers, we areof the view that no recovery of the amount that hasbeen paid in excess to the appellants teachers should bemade.”7.Similarly in State of Punjab and others etc. V. Rafiq Masih(White Washer) etc., AIR 2015 SC 696, it is observed that excessunauthorized payment made to the employee, not to be recovered fromthe retired employee or employee about to retire, as making of recoverywould entail extreme hardship on the retired employee. In High Court ofPunjab and Haryana And other Versus Jagdev Singh, (2016) 14 SCC267, while deciding the issue with regard to the permissibility of therecovery of excess amount paid post retirement, it is observed thus:“10 In State of Punjab v. Rafiq Masih this Court held thatwhile it is not possible to postulate all situations ofhardship where payments have mistakenly been made byan employer, in the following situations, a recovery by theemployer would be impermissible in law: (SCC pp.334-35)(i) Recovery from employees belonging to Class IIIand Class IV service (or Group C and Group Dservice).(ii) Recovery from retired employees, or employeeswho are due to retire within one year, of the order ofrecovery.(iii) Recovery from employees, when the excesspayment has been made for a period in excess offive years, before the order of recovery is issued.(iv) Recovery in cases where an employee haswrongfully been required to discharge duties of ahigher post, and has been paid accordingly, eventhough he should have rightfully been required towork against an inferior post.(v) In any other case, where the Court arrives at theconclusion, that recovery if made from thewp.2803.24.odt5 of 7 employee, would be iniquitous or harsh or arbitraryto such an extent, as would far outweigh theequitable balance of the employer's right to recover.” (emphasis supplied).8.Reverting back to the facts of the present case, Respondentshave not come out with the case that the Petitioner misrepresented orplayed fraud upon them in order to get any service benefits. It is theRespondents who did not take action against the Petitioner for therecovery of the amount in spite of there being Government Resolution inthe year 2018 dated 3rd July, 2018 as well as the Government Resolutiondated 26th November, 2020. No undertaking was obtained from thePetitioner during this period, however, on 19th April, 2022 i.e. the monthin which the Petitioner was due for superannuation, an undertaking isobtained from her practically she authorizing the Respondents to carryout deductions from her retiral benefits for not obtainment of MS-CITcertificate. The Hon’ble Supreme Court in High Court of Punjab andHaryana And other Versus Jagdev Singh (supra), has held that therecovery from the retired employees or employees who are due to retirewithin one year of the order of the recovery is not tenable. So also therecovery for the period in excess of five years is not permissible. As faras the undertaking given by the Petitioner is concerned, since she wasdue for retirement and in all probability she could have been refusedretiral benefit for non furnishing of undertaking and hence suchundertaking cannot be treated as voluntary, having regard to thesituation / circumstances in which it was given. We therefore are ofwp.2803.24.odt6 of 7 considered view that no recovery can be initiated on basis of suchundertaking. 9.Having considered the law settled by the Hon’ble SupremeCourt with regard to the recovery of any dues from the retiral benefits ofthe employee, and having regard to the facts and circumstances of thecase we hold that the Respondents have no right to carry out anyrecovery from the retiral benefits of the Petitioner. 10.This Writ Petition stands allowed. The order dated 7th April,2022 is not sustainable and is set aside.11.We are informed that pursuant to the impugned order,recovery has been effected to the extent of Rs.2,36,974/-. TheRespondents, therefore, is directed to refund Rs.2,36,974/- to thePetitioner within a period of 30 days from the date of this order. In failurethereof, the said amount shall carry interest at the rate of 9% perannum. ( R. M. JOSHI, J. )( RAVINDRA V. GHUGE, J. )sspwp.2803.24.odt7 of 7
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2803 OF 2024Smt. Mangala Ramgir Giri,Age : 59 Years, Occupation : Retired/Pensioner,Resident of Mahasoba Nagar, Shrikrupa P.No. 32, G. No. 165/2,Sadgurunagar, Harsool, Taluka and District Aurangabad… PETITIONERVersus1.The State of MaharashtraThrough Secretary Municipal Corporations,Mantralaya, Mumbai-400032.2.The Commissioner,Municipal Corporation Aurangabad3.The Education Officer,Municipal Corporation Aurangabad… RESPONDENTMs. A. N. Ansari, Advocate for the Petitioner Ms. Neha Kamble, AGP for the Respondent/StateMr. S. K. Kamble, Advocate h/f Mr. S. P. Urgunde, Advocate for Respondent Nos. 2 and 3CORAM : RAVINDRA V. GHUGE AND R. M. JOSHI, JJ.DATE:18th APRIL, 2024ORDER (PER – R. M. JOSHI, J.) :-1.The Petitioner being aggrieved by the order letter No. MCA/Education/332/2022 dated 7th April, 2022 issued by the Commissioner,Municipal Corporation, Aurangabad for recovery from retiral benefits onaccount of not passing MS-CIT examination in time, has preferred thisPetition.wp.2803.24.odt1 of 7 2.It is the case of the Petitioner that she was appointed asAssistant Teacher Primary on 2nd September, 1987 and since then till thecompletion of her tenure of service she performed her dutiescontinuously. On 30th April, 2022 she retired from service on attainingage of superannuation. It is her case that during the course of servicethe Government has adopted policy of passing of MS-CIT examination byall the employees in service and time schedule was given for the same.The Petitioner could not complete MS-CIT within time limit but acquiredthe said qualification in 2021. Though initially Government had providedthe consequence of recovery of the payment and reversion in case ofpromotion for not completing MS-CIT course but the said Resolutioncame to be stayed on 27th November, 2022. According to the Petitionerby the order dated 14th February, 2022 recovery is sought to be madefrom the retiral benefits of the Petitioner on the basis of order dated 11thMay, 2021 of of Chief Audit Officer of Respondent-Corporation.3.Respondent Nos.2 and 3 opposed the Petition by filingaffidavit-in-reply of Mr. Ankush A. Pandhare, Dy. Commissioner, MunicipalCorporation, Aurangabad. Though there is no dispute made with regardto the tenure of service of the Petitioner, it is claimed that in the year2018 i.e. on 3rd July, 2018 the Government Resolution came to be issueddirecting the authorities to take care to consider provisions ofMaharashtra Civil Services (Knowledge of Computer Handling/Use)(Amendment) Rules, 2018, in case of non submission of certificateswp.2803.24.odt2 of 7