High Court

Legal Reasoning

( 1 ) wp 8355.25 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8355 OF 2025Smt. Jayashri Wd/o Sunil Kolhe,Age: 52 years, Occu.: Household, R/o: Plot No. 50, Survey No. 53, Juna Khedi Road, Near Vishweshwar Mahadev Temple, Jamuna Nagar, Jalgaon, Tq. and District Jalgaon....PETITIONERV/s.1.The State of Maharashtra,Through its Secretary, Higher and Technical Education Department, Mantralaya, Mumbai - 32.2.The Accountant General,101, Maharshi Karve Road, Maharashtra, Mumbai-400 020.3.The Joint Director of Higher Education,Jalgaon Division, Jalgaon, District Jalgaon.4.The Accountant,Office of the Joint Director of Higher Education, Jalgaon Division, Jalgaon, District Jalgaon.5.Kavayitri Bahinabai Chaudhari NorthMaharashtra University, UMAVI Nagar, Jalgaon, District Jalgaon Through its Registrar. ... RESPONDENTS ( 2 ) wp 8355.25 …....Mr. Yogesh B. Bolkar, Advocate for the PetitionerMr. A.B. Girase, GP for the Respondent-StateMr. Sandesh R. Patil, Advocate for Respondent No.5 (through VC)…....CORAM : MANISH PITALE &Y.G. KHOBRAGADE, JJ.DATE :11th September, 2025JUDGMENT (Per: Y.G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith. With the consent of boththe sides, it is heard finally at the stage of admission. 2.In the case in hand, a very short question falling for ourconsideration is that, whether the employer can recover the amount paid inexcess to the deceased employee from his legal heirs i.e. the Petitioner thewidow of the employee. On face of record it appears that, Shri Sunil Kolhe, thedeceased husband of the Petitioner was working as “Assistant” with theestablishment of Respondent No.5 University w.e.f. 01.01.1996. The husbandof the Petitioner expired on 02.10.2022. Thereafter, the Petitioner hadrequested the Respondents to release all monetary and pensionary benefitsarising out of service of her deceased husband. However, the Petitioner wasasked to obtain heirship certificate, which was obtained by the petitioner on12.06.2023. Thereafter, the Petitioner approached the Respondents with therequest to process family pension and other monetary benefits accumulated tothe service of her husband. Accordingly, the Respondent No.5 submitted the ( 3 ) wp 8355.25 proposal for releasing the family pension. However, on 20.09.2024 theRespondent No.3/ Joint Director of Higher Education issued impugnedcertificate, certifying that excess payment to the tune of Rs.14,96,836/-(Rs.8,79,172/- w.e.f. 01.01.2006 to 31.12.2015 and Rs.6,17,664/- w.e.f.01.01.2016 to 02.10.2022) was made to the Petitioner’s deceased husband.Thereafter, on 03.01.2025, the Respondent No.5 submitted the proposal offamily pension with the Respondent No.2. However, the Respondent Nos.2 to4 have neither paid family pension nor any monetary benefits to the Petitioner.Therefore, the Petitioner submitted representations on 27.02.2025 and03.04.2025, thereby requesting for release of pensionary and other monetarybenefits accumulated due to service of the Petitioner’s husband. Thereafter, on29.04.2025, the Respondent No.2 sanctioned family pension in favour of thePetitioner but amount of Rs. 14,96,836/- was directed to be recovered from themonetary benefits.3.The learned counsel appearing for the Petitioner canvassed that,the Respondent Nos.2 to 4 have directed to effect recovery from the monetaryand pensionary benefits payable to the Petitioner after sad demise of thePetitioner’s husband and as such no undertaking was obtained from thePetitioner’s husband while fixing the pay at the time of implementing 6th and 7thPay Commission. The husband of the Petitioner was discharging duty being aClass-3 employee, therefore, alleged excess payment made to the deceased ( 4 ) wp 8355.25 husband of the Petitioner cannot be recovered from the monetary andpensionary benefits payable to the Petitioner on account of death of herhusband.4.In support of these submissions, the learned counsel appearing forthe Petitioner placed reliance on the cases of State of Punjab & Ors. V/s. RafiqMasih (White Washer) & Anr.; 2015 (4) SCC 334, Jagdish Prasad Singh V/s.State of Bihar; 2024 SCC OnLine SC 1909, Thomas Danial V/s. State of Kerala;2022 SCC OnLine SC 536 and unreported Judgment dated 27.03.2023 passedby the Coordinate Bench of this Court at Nagpur in Writ Petition No.4835/2021(Smt. Sudha wd/o Bhagirath Meshram)5.Per contra, the Respondent No.5 University has filed affidavit inreply and resisted the claim of the Petitioner. The Respondent No.5 contendedthat, Shri Sunil Kolhe, the deceased husband of the Petitioner was appointed tothe post of “Assistant” w.e.f. 01.01.1996 and subsequently he was promoted tothe post of “Senior Assistant”. The Petitioner’s husband died in harness on02.10.2022. Thereafter, the Respondent No.5 submitted proposal of familypension and other monetary benefits accumulated out of the Petitioner’shusband. However, the Respondent No.4/ Accountant, Joint Director ofHigher Education issued recovery certificate dated 20.09.2024, wherein it wasrevealed about excess payment was made to the Petitioner’s husband during ( 5 ) wp 8355.25 the period from 01.01.2006 to 31.12.2015 and from 01.01.2016 to 02.10.2022amounting to Rs.14,96,836/- and said certificate was issued conditionallyeffecting recovery of excess payment made to the Petitioner’s husband from themonetary and pensionary benefits payable to the Petitioner. It is furthercontended that, on 08.12.2020, the Respondent No.1/ State Governmentissued a Notification for fixation pay scale w.e.f. 01.01.2016 which was madeapplicable w.e.f. 01.11.2020 but no arrears of salary were payable w.e.f.01.01.2016 to 03.10.2020. However, excess payment than the admissiblesalary was made to the Petitioner’s husband due to wrong fixation, hence,recovery is directed. It if further contended that, on 25.05.2024, the Petitionersubmitted an undertaking based on the notification dated 08.12.2020,therefore, the Petitioner is not entitled for any relief, hence prayed for dismissalof the petition.6.It is canvassed on behalf of the Respondent Nos.1, 3 & 4 that, thehusband of the Petitioner was working as an “Assistant” with the RespondentNo.5 and he expired on 02.10.2022. After submitting legal Heirship Certificatethe proposal for pensionary and other monetary benefits was processed,however, Respondent No.4 issued recovery certificate on 20.09.2024 directingrecovery of Rs. 14,96,836/- for the excess payment made to the Petitioner’sdeceased husband due to wrong pay fixation while implementing 6th and 7th ( 6 ) wp 8355.25 pay commissions and husband of the Petitioner was not entitled for the saidrevised pay scale, hence, prayed for dismissal of the petition. 7.Needless to say that in case of Rafiq Masih (White Washer) & Anr.cited (supra) the Hon’ble Supreme Court in para 18 held as under:“12. It is not possible to postulate all situations of hardship, which wouldgovern employees on the issue of recovery, where payments have mistakenlybeen 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 retirewithin one year, of the order recovery.(iii) Recovery from employees, when the excess payment has been made fora period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required todischarge duties of a higher post, and has been paid accordingly, even though heshould have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, thatrecovery if made from the employee, would be iniquitous or harsh or arbitraryto such an extent, as would far outweigh the equitable balance of the employer’sright to recover."8.In case of Jagdish Prasad Singh cited (supra) it is held that, theexcess unauthorized payment is detected within a short period of time, it wouldbe open for the employer to recover the same. Conversely, if the payment had ( 7 ) wp 8355.25 been made for a long duration of time, it would be iniquitous to make anyrecovery and further held that any recovery from an employee wouldtantamount to a punitive action because the same has drastic civil as well asevil consequences. The action of recovery on account of non-adherence to theprinciples of natural justice is also held to be unsustainable in the eyes of law.9.In the case of Thomas Danial cited (supra) it is held that, therecovery is unsustainable, when the employee has not played any fraud ormade any misrepresentation.10.On 27.03.2023, the Coordinate Bench of this Court at NagpurBench passed the judgment in Writ Petition No.4835/2021 (Smt. Sudha wd/oBhagirath Meshram), wherein it is held in paragraph nos.14 and 15 as under: “14. Here is the case, where the deceased employee died in theyear 2016 while he was in service. In the year 2002, his grade paywas fixed. In the year 2009, he had given an undertaking to refundthe amount if excess amount is paid due to incorrect fixation of paygrade by the respondent no.2. Now, after 16 years and almost fiveyears after the death of the deceased employee, the respondent no.2comes up with the case that it had fixed the grade pay of thedeceased employee incorrectly and the petitioner - widow of thedeceased employee has been asked to consent for recovery of theexcess amount paid to the deceased employee from family pension.15. It appears from the record that the petitioner, who is widowis not earning and is doing household work. Considering her age, itis also obvious that her children are also dependent upon her. She is ( 8 ) wp 8355.25 getting Family Pension of Rs.14,250/- per month which is already50% of the original pension. Whereas, an excess amount ofRs.2,62,841/- is sought to be recovered. Considering the facts thatthe deceased employee who died in his early during his serviceleaving behind him, a widow and children; the time gap of 16 years,when the amount has been sought to be recovered; the quantum ofrecovery amount and the amount of Family Pension; we are of theopinion, that it would be iniquitous and harsh to effect the recoveryfrom the Family Pension of the petitioner, who is a widow anddependent entirely on her Family Pension. Though, the deceasedemployee had, at the time of fixation of his salary, given theundertaking but considering the situation mentioned above, it willnot be permissible to recover the excess amount of Rs.2,62,841/-from the Family Pension of the petitioner.”11.Considering the law laid down by the Hon’ble Supreme Court inthe referred case laws, on 03.03.2023, this Court passed an order in WritPetition No.2605/2023 (Suresh Rupchand Sonawane V/s. The State ofMaharashtra & Ors.) and other connected petitions and held that, when theemployees/Petitioners were not involved in any mischief, fraud or deceit inorchestrating their wrongful pay revision, recovery is not permissible.12.Similarly,in the case in hand, it is not in dispute that the Petitioneris a widow of an employee of the Respondent No.5 and she is entitled formonetary and pensionary benefits arising out of services of her husband, whodied on 02.10.2022. However, on 20.09.2024 the Respondent No.3 issued ( 9 ) wp 8355.25 impugned recovery certificate directing recovery of Rs.14,96,836/- from themonetary and pensionary benefits payable to the Petitioner. The Respondentshave not brought anything on record to show that, deceased husband of thePetitioner had derived any benefits by playing mischief, fraud or deceit inorchestrating his wrongful pay revision. 13.Indeed, the Respondent No.5 tried to bring on record that, thePetitioner has furnished an undertaking that, if any anomaly or excess paymentis made then such excess payment shall be adjusted or paid to the Governmentfrom the amount payable to the Petitioner. However, said undertaking isobtained from the Petitioner on the verge of release of monetary andpensionary benefits, which does not appear to be by free will but the sameseems to be forcible. Therefore, the said undertaking is having no force and itis not binding upon the Petitioner.14.In the case in hand, admittedly, the Petitioner’s husband was neversubjected to any departmental enquiry and no proceeding was initiated forrecovery of the said amount, when the Petitioner’s husband was alive and therelationship of “Employer” and “Employee” was in existence. The Respondentshave failed to bring any adverse material on record to show that, after thedeath of the employee, the recovery in respect of excess payment made to theemployee during his lifetime can be made from his legal heirs. Therefore, ( 10 ) wp 8355.25 considering the law laid down in the above cited cases, we are of the view thatthe impugned recovery certificate dated 20.09.2024 issued by the RespondentNo.4 and the order dated 29.04.2024 passed by the Respondent No.2 forrecovery of amount of Rs.14,96,836/- are liable to be quashed and set aside.Accordingly, we answer the question framed in para 2.15.In view of the above discussion, the present petition is allowed.The impugned recovery certificate dated 20.09.2024 issued by the RespondentNo.4 and order dated 29.04.2024 passed by the Respondent No.2 for recoveryof amount of Rs.14,96,836/- are hereby quashed and set aside. Rule is madeabsolute in the above terms. [Y.G. KHOBRAGADE, J.] [MANISH PITALE, J.]mub