RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON
Legal Reasoning
WP-6844-2024-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6844 OF 2024Hanmant s/o Pundaji Makhanikar Age: 60 years, Occ: Retired,R/o: Ambedkar Nagar, Rampur Road,Tq. Degloor, Dist. Nanded … PETITIONER VERSUS1]The State of Maharashtra Through its Secretary,General Administration Department,Mantralaya, Mumbai-32 2]The Chief Executive Officer Zilla Parishad, Nanded, Dist. Nanded 3]The Joint Accountant,Zilla Parishad, Nanded … RESPONDENTS .…Mr. V. R. Jain, Advocate for Petitioner Mr. M. M. Nerlikar, AGP for Respondent No.1 Mr. R. K. Ingole, Advocate for Respondent Nos. 2 and 3 .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON :: 22.07.2024 02.08.2024JUDGMENT (Per – Y. G. Khobragade, J.) :- 1.Rule. Rule made returnable forthwith. Heard finallywith the consent of the parties. 1 of 11
Legal Reasoning
(( 2 ))WP-6844-2024-Judgment2.By the present Petition under Article 226 of theConstitution of India, the Petitioner prays for issuance of Writ ofMandamus for quashment of order dated 21.03.2023, issued byRespondent No. 3, directing refund of amount of Rs. 1,30,144/- withinterest, which was deducted from gratuity amount of the Petitioner. 3.We have, considered the strenuous submissions canvassedon behalf of the respective parties. Perused the Petition and ReplyAffidavit filed on behalf of Respondent Nos. 2 and 3. The Petitionerwas working as a Junior Assistant with Respondent No.2 / ZillaParishad, Nanded and he superannuated on attaining the age ofsuperannuation, on 30.09.2022. Respondent No. 3 sanctioned retiralbenefits and gratuity vide order dated 21.03.2023 to the tune of Rs.6,76,500/-. However, by impugned order dated 21.03.2023 issued byRespondent No. 3, the recovery of excess payment of salary onaccount of wrong pay fixation, has been directed. 4. The learned Counsel appearing for the Petitioner places relianceon the case of State of Punjab and others Vs. Rafiq Masih (WhiteWasher) and others, (2014) 8 SCC 883, wherein recoveries againstClass-III and Class-IV employees held impermissible. Further herelied on following judicial pronouncement :- 2 of 11 (( 3 ))WP-6844-2024-Judgmenti. Judgment Dt. 22.12.2017 passed in WP No.4616 of 2016 - Smt. Jayshree Trimbak Takalkar Vs. The Chief Executive Officer, Zilla Parishad, Aurangabad and another;ii. Judgment Dt. 15.11.2021 passed in WP No.7379 of 2020 - Smt. Pramila Manohar Pawar Vs. The State of Maharashtra and others and iii. Ananda Vikram Baviskar Vs. State of Maharashtra and others – 2022(2) Mh.L.J. 698.5.Ms. Yogita Dayanand Chamle, Medical Officer, P.H.C.,Markhel, Zilla Parishad, Nanded, has filed an Affidavit-in-Reply onbehalf of Respondent Nos. 2 and 3 and strongly resisted the Petitionon the ground that the Petitioner was appointed on the Post ofParichar on 18.10.1985 and subsequently he was promoted to thepost of Junior Assistant. As per the recommendation of 7th paycommission, the pay scale of the Petitioner revised on 22.09.2014.Accordingly, the pay scale was revised and paid to the Petitioner.However, the Petitioner had already furnished undertaking at the timeof pay fixation on 28.01.1999 stating that in case if excess paymentbeing paid to him wrongly, in that event, he would return the saidexcess amount. According to the Respondents, in the month ofSeptember 2009, the Petitioner had furnished an undertaking aboutreturn of excess payment due to incorrect pay fixation, if any.Further, on 24.11.2022, the Petitioner had furnished an undertakingabout refund of excess payment on account of wrong pay fixation. 3 of 11 (( 4 ))WP-6844-2024-Judgment6.The Respondents contended that due to wrong fixation,excess amount of Rs. 1,30,144/- have been paid to the petitioner,therefore, the recovery of said amount is directed. FurtherRespondents submitted that since the Petitioner executed promissorynote by execution of undertaking and agreed for repayment of anyexcess payment due to wrong pay fixation, he is not entitled for anyrelief, and prayed for dismissal of the Petition. In support of thesesubmissions, the learned Counsel appearing for Respondent Nos. 2and 3 relied on the case of High Court of Punjab and Haryana andothers Vs. Jagdev Singh – 2016 A.I.R. (SCW) 3523. 7.Needless to state that the grievance of the Petitioner isthat he was receiving higher pay scale on the post of Junior Assistantunder the recommendation of 7th pay commission. His pay wasrevised with effect from 22.09.2014. The Respondents havefurnished details about excess payment of pay scale on account ofwrong pay fixation in tabular form from the month of July 2007,whereby the Petitioner was paid excess amount of Rs. 1,30,144/- i.e.Rs. 92,249/- for the period July 2007 to May 2019 and Rs. 37895/-for the period of January 2019 to April 2021. 4 of 11 (( 5 ))WP-6844-2024-Judgment8.The Respondents have placed on record aboutentitlement of pay scale of the Petitioner under 7th pay commissionand also pay fixation with effect from 1 July 2007. The Petitioner hasnot countered the said fact. 9.The Respondents have also produced the undertakingfurnished by the Petitioner at the time of fixation of his pay scale.The Petitioner has not countered the undertaking/note executed byhim about refund of any excess payment deducted in the light ofdiscrepancies if noticed subsequently. In the case of Rafiq Masih(supra), the Hon’ble Apex Court has held that the benefit of nonrecovery cannot be extended to employees merely because, they arenot responsible for mistake committed by the employer or they arenot guilty of furnishing any incorrect information, fraud ormisrepresentation. However, recoveries are held to be impermissiblein the following circumstances:-“(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 aredue to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment hasbeen made for a period in excess of five years, before theorder of recovery is issued. 5 of 11 (( 6 ))WP-6844-2024-Judgment(iv) Recovery in cases where an employee has wrongfully beenrequired to discharge duties of a higher post, and has beenpaid accordingly, even though he should have rightfullybeen required to work against an inferior post. (v) In any other case, where the Court arrives at theconclusion, 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 theemployer's right to recover.” 10.In High Court of Punjab and Haryana and others vsJagdev Singh, (supra), the Hon’ble Supreme Court has observed inPara Nos. 8 and 9, as under:"8. The order of the High Court has been challenged in theseproceedings. From the record of the proceedings, it isevident that when the Respondent opted for the revised payscale, he furnished an undertaking to the effect that he wouldbe liable to refund any excess payment made to him. In thecounter affidavit which has been filed by the Respondent inthese proceedings, this position has been specifically admitted.Subsequently, when the rules were revised and notified on 7May 2003 it was found that a payment in excess had beenmade to the Respondent. On 18 February, 2004, the excesspayment was sought to be recovered in terms of theundertaking.9.The submission of the Respondent, which found favourwith the High Court, was that a payment which has been madein excess cannot be recovered from an employee who hasretired from the service of the state. This, in our view, will haveno application to a situation such as the present where anundertaking was specifically furnished by the officer at the timewhen his pay was initially revised accepting that any paymentfound to have been made in excess would be liable to be 6 of 11 (( 7 ))WP-6844-2024-Judgmentadjusted. While opting for the benefit of the revised pay scale,the Respondent was clearly on notice of the fact that a futurere-fixation or revision may warrant an adjustment of the excesspayment, if any, made. 11.In the case of Ananda Vikram Baviskar (supra), thisCourt has concluded in Para Nos. 7 to 10 as under:-“7.Our Courts are dealing with hundreds of such cases.On each day, we have at least one such case before us.Considering the law laid down in Rafiq Masih (Supra), ourCourts have been quashing notices for recovery on the groundthat such notices have been issued long after the retirement ofan employee and especially in the cases of Class-IV employees,who would find it difficult to shell out large sums of moneytowards recovery/payment. Consequentially, we have pardonedseveral Class-IV employees and protected them as againstrecovery. 8.We are conscious of the fact that the Hon’ble ApexCourt has delivered a judgment in Jagdev Singh (Supra) afternoticing that an undertaking was issued by an officer videwhich, he had agreed to refund/repay the excess amount.9.This Court at the Nagpur Bench has dealt with WritPetition No.4919 of 2018 filed by the State of Maharashtra andOthers Vs. Sureshchandra S/o. Dharamchand Jain and Othersfor challenging the judgment of the learned MaharashtraAdministrative Tribunal, Nagpur Bench dated 18.04.2017. Inthe said matter, the learned Tribunal had relied on Rafiq Masih(Supra) and had granted the relief to the appellant who was aClass-III employee. The learned Division Bench has observed inparagraph nos.4 to 7 as under:4. The argument submitted in defence is fallacious.An undertaking has the effect of solemnity in law andif argument is to be accepted which has been 7 of 11 (( 8 ))WP-6844-2024-Judgmentsubmitted on behalf of the respondents, the majesty oflaw would be lowered and there would be a travestyof justice. Besides, the undertaking is about wrong payfixation and consequent excess payment. Theundertaking is not about grant of higher pay on thebasis of right pay fixation. Had it been an undertakingas regards the later dimension of the case, one couldhave perhaps said that the undertaking was only aformality. When the undertaking takes into accountthe contingency of the wrongful pay fixation, theundertaking has to be said to have been givenintentionally and with a view to be acted upon, in casethe contingency did really arrive.5. So, what we have before us is an undertaking givenconsciously and intentionally by the respondents andthe respondents would have to be held bound by thisundertaking. That means in the present case, no equitywhatsoever has been created in favour of therespondents while making the excess payment and assuch there is no question of any hardship visiting therespondents.6. The reason weighing with the Hon'ble Apex Courtimposing prohibition against recovery of excesspayment in Rafiq Masih (supra) was of hardshipresulting from creation of awkward situation becauseof the mistake committed by the employer and therebeing no fault whatsoever on the part of the employee.In order to balance the equities created in such asituation, the Hon'ble Apex Court in Rafiq Masih, gavethe direction that so far as Class-III and IV employeeswere concerned, and who were found to be not havingvery sound economic footing, would have to beexempted from the consequence of recovery of theexcess payment, if considerable period of time haspassed by in between. But, as stated earlier, even in 8 of 11 (( 9 ))WP-6844-2024-Judgmentcase of such an employee, there would be no hardshipfor something which has been accepted by himconsciously with an understanding that it could betaken away at any point of time, if mistake is detected.Clarifying the law on the subject, the Hon'ble ApexCourt, in its recent judgment rendered in the case ofHigh Court of Punjab and Haryana and others vs.Jagdev Singh reported in 2016 AIR (SCW) 3523, inparagraph 11 it observed thus :“the principle enunciated in proposition (ii)above cannot apply to a situation such as inthe present case. In the present case, theofficer to whom the payment was made in thefirst instance was clearly placed on notice thatany payment found to have been made inexcess would be required to be refunded. Theofficer furnished an undertaking while optingfor the revised pay scale. He is bound by theundertaking.” 7. The fact situation of the present case is squarelycovered by the above referred observations. These arethe crucial aspects of the present case and theMaharashtra Administrative Tribunal, Nagpur Bench,Nagpur appears to have missed out on them and theresult is of passing of an order which cannot besustained in the eye of law.”10.We have a similar case in hand. The petitioner hasspecifically given an undertaking prior to his retirement that ifhe has received any amount in excess to what he waslegitimately entitled to, the said amount would be repaid or canbe recovered. Such undertaking, if ignored, would be reducedto the value of a waste paper. An undertaking has it’s ownmeaning and effect. If an undertaking is not to bind a personissuing it, there would be no sanctity to an undertaking. Wecannot accept such an argument canvassed by an employee that 9 of 11 (( 10 ))WP-6844-2024-Judgmentan undertaking is a mere formality and should be ignored, lest,we ourselves would be party to neutralising the value of anundertaking.”[EMPHASIS SUPPLIED]12.Similarly, in the case in hand, the Petitioner hasspecifically given an undertaking at the actual time of his pay fixationthat if he has received any amount in excess to what he waslegitimately entitled to, then said amount would be repaid by him orsame can be recovered by the employer. Therefore, if suchundertaking is ignored, it would be reduced to the value of a wastepaper. An undertaking has it’s own meaning and effect. If anundertaking is not to bind a person issuing it, there would be nosanctity to an undertaking. We cannot accept such an argumentcanvassed by an employee that an undertaking is a mere formalityand should be ignored.13.Since, in the case in hand, it clearly appears that whilegranting higher pay scale to the Petitioner under the 7th paycommission, an excess amount of Rs. 1,30,144/- is being wronglypaid to the petitioner. Therefore, the recovery of excess paymentagainst the Petitioner has been directed. Therefore, taking intoconsideration law laid down in the case of Jagdev Singh and Ananda 10 of 11
Decision
(( 11 ))WP-6844-2024-JudgmentVikram Baviskar, (supra), the Petitioner is not entitled to any relief asclaimed. 14.In view of the above discussions, the present Writ Petitionis devoid of any merit. Hence, it is dismissed. Accordingly, Rule isdischarged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 11 of 11