Writ Petition No. 3408 of 2024 · Bombay High Court
Case at a glance
Provisions considered
Key paragraphs
- Para 33. In view of the above, this Writ Petition is partlyallowed. The impugned order dated 13.12.2023 is quashed andset aside with a further direction that there shall be no recovery *3* 947y wp3408o24from the Petitioner with regard to the purported excess paymentmade w.e.f. 2001 onwards.…
Judgment
*1* 947y wp3408o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD947 WRIT PETITION NO. 3408 OF 2024DATTOPANT WAMANRAO PATILVERSUSTHE STATE OF MAHARASHTRA THROUGH ITSSECRETARY AND OTHERS...Shri Avinash A. Khande i/by Shri Ganesh V. Sukale, Advocatesfor the Petitioner. Shri S.J. Salgare, AGP for Respondent No.1/State. Shri V.V. Gujar, Advocate a/w Shri K.A. Sharma, Advocate for Respondent Nos.2 to 4. ... CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 13th June, 2024 Per Court :-
We have considered the strenuous submissions ofthe learned Advocates for the respective sides, especially the Zilla Parishad. It is contended on behalf of the Zilla Parishad thatthis petition should be dismissed with costs of Rs.50,000/-. Therecovery is justified as the excess payment was made to the Petitioner from 01.04.2001 onwards till the superannuation of the Petitioner in 2018. *2* 947y wp3408o242.Having considered the submissions of the learnedAdvocates, it is apparent that the recovery has been initiated videthe order dated 13.12.2023, when the pay re-fixation of the Petitioner was done without an opportunity of hearing. ThePetitioner, by the time the impugned order was passed, hadalmost completed five years of retirement. If the pay fixation wasbeen wrongly done and the Department had noticed it’s mistakepost retirement, the Department could have issued a notice to the Petitioner in order to grant him an opportunity of hearing andthen taken a decision as regards correction in the pay fixation. Nevertheless, there cannot be recovery of the amount in view ofthe law laid down by the Honourable Supreme Court in SyedAbdul Qadir vs. State of Bihar and others, 2009 (3) SCC 475and State of Punjab and other vs. Rafiq Masih (WhiteWasher) etc., (2015) 4 SCC 334 = AIR 2015 SC 696. Theadditional factor is that no undertaking was taken from the Petitioner.
In view of the above, this Writ Petition is partlyallowed. The impugned order dated 13.12.2023 is quashed andset aside with a further direction that there shall be no recovery *3* 947y wp3408o24from the Petitioner with regard to the purported excess paymentmade w.e.f. 2001 onwards. If any amount has been recoveredfrom the Petitioner, the same shall be refunded to him, on orbefore 31.07.2024. If any amount has been deducted from the Petitioner’s gratuity, the same shall be returned to him within thesame timeline, along with interest at the rate of 10% per annum, which is prescribed under the Payment of Gratuity Act, 1972.
We make it clear that if the Respondent-Employerdesires to correct the pay fixation of the Petitioner and re-calculate the pensionary benefits, it would be at liberty to issue anotice of hearing to the Petitioner by giving him at least 15 daysperiod to respond to the said notice or such further reasonableperiod if a reasonable extension of time is sought. Thereafter, anappropriate order on correction in the pay fixation may bepassed. Legal remedy as against such order, is permitted. kps (Y. G. KHOBRAGADE, J.)
(RAVINDRA V. GHUGE, J.)
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