RAVINDRA v. GHUGEAND Y. G. KHOBRAGADE, JJ
Legal Reasoning
7970.24wp etc(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 911 WRIT PETITION NO. 7970 OF 2024HIRAMAN BABU SONAVANEVERSUSTHE STATE OF MAHARASHTRA THR THE SECRETARYAND OTHERSWITHWRIT PETITION NO. 7971 OF 2024SURESH GOVINDRAO KURHADEVERSUSTHE STATE OF MAHARASHTRA AND OTHERS ….Mr Balaji S. Shinde, Advocate for Petitioners in both PetitionsMs Neha Kamble, A.G.P. for Respondent Nos.1 & 2 in both PetitionsMr P. S. Patil, Advocate for Respondent Nos.3 to 5 in both Petitions CORAM : RAVINDRA V. GHUGEAND Y. G. KHOBRAGADE, JJ. DATE : 30th July, 2024PER COURT:1.In both these matters, the Petitioners are identicallyplaced. Both of them are Class-III employees working on the postof Arogya Sevak. Both of them were granted revision in pay scalein terms of the “one step pay scale” that is made available for
Decision
7970.24wp etc(2) working in the tribal/PESA areas. All of them retired on attainingthe age of superannuation, in 2023 and 2018, respectively. Anundertaking was extracted from both of them at the stroke of theirretirement.2.Following is the chart indicating the Writ Petition, thenames of the Petitioners, the dates of superannuation, dates ofrecovery, total amount recovered and the reason for recovery :-SRNOWRITPETITIONNUMBERNAME OFPETITIONERDATE OF SUPER-ANNUATIONDATE OF RECOVERYTOTALAMOUNTRECOVEREDFROMPETITIONERRECOVERY TOWARDS17970/2024Hiraman Babu Sonavane31.05.202321.06.20236,70,206/-Wrong payfixation ofone steppay scale27971/2024Suresh Govindrao Kurhade30.04.201828.08.20182,20,936/-Wrong payfixation ofone steppay scale3. The learned Advocate representing the Respondent/Zilla Parishad, Nandurbar has strenuously opposed these Petitionson the following grounds:-(a) None of these Petitioners protested while executing theundertaking. 7970.24wp etc(3) (b)The amounts which were found to have been paid inexcess, have already been recovered from the retiraldues of these Petitioners.(c) It will have to be verified as to whether thesePetitioners were actually working in the tribal/PESAarea. (d)The Petitioners could have raised a grievance with theZilla Parishad, instead of approaching this Courtdirectly.(e) It would be appropriate to dispose off these Petitionsand direct the Petitioners to approach the ZillaParishad. 4.There are several judgments and orders passed by theBombay High Court in such cases in the light of the judgmentsdelivered by the Hon’ble Supreme Court in Syed Abdul Qadirand others Vs. State of Bihar and others – (2009) 3 SCC 475 andState of Punjab and others Vs. Rafiq Masih (White Washer) andothers – (2015) 4 SCC 334. This Court has also considered thetendency of employers in extracting written undertakings from theemployees at the stroke of their retirement, vide the judgmentdelivered dated 14.03.2024 in Writ Petition No.2810 of 2024 7970.24wp etc(4) (Vijaya Khandu Tayade Vs. the State of Maharashtra and others)and Writ Petition No.2863 of 2024 (Asha Dhanraj Nimbalkar Vs.the State of Maharashtra and others). It would be apposite toreproduce paragraph Nos. 4 to 7 hereunder:-“4.We have considered the strenuous submissions of thelearned Advocates. It is, however, undisputed that none ofthese Petitioners had played any fraud or were personallyinvolved in a wrongful revision of their pay scales ororchestrating wrongful revision by manipulating the record.There is no allegation of fraud or deceit against any ofthem. No undertaking was acquired from them as and whenthe revised pay scales become payable. In some cases, atthe stroke of retirement, a condition was imposed that theyshould execute an undertaking and it is in these coercivecircumstances, that undertakings were extracted from someof them.5.The learned Advocate representing the Zilla Parishadas well as the learned A.G.P., submit that once anundertaking is executed, the case of the Petitioners wouldbe covered by the law laid down by the Hon’ble SupremeCourt in High Court of Punjab and Haryana and othersvs. Jagdev Singh, 2016 AIR (SCW) 3523. Reliance isplaced on the judgment delivered by this Court on 7970.24wp etc(5) 01.09.2021, in Writ Petition No.13262 of 2018 filed byAnanda Vikram Baviskar Vs. State of Maharashtra andothers. 6. We have referred to the law laid down by the Hon’bleSupreme Court in High Court of Punjab and Haryana andothers vs. Jagdev Singh (supra). However, the recordreveals that no undertaking was taken from thesePetitioners when the pay scales were revised. Theundertakings from some of them were taken at the stroke oftheir retirement. An undertaking has to be taken from thecandidate on the day the revised pay scale is madeapplicable to him and the payment commences. At thestroke of superannuation of the said employee, asking himto tender an undertaking, practically amounts to anafterthought on the part of the employer and a mode ofcompelling the candidate to execute an undertaking sincethey are apprehensive that their retiral benefits would notbe released until such undertaking is executed. Such anundertaking will not have the same sanctity of anundertaking executed when the payment of revised payscale had commenced. We, therefore, respectfully concludethat the view taken in High Court of Punjab and Haryanaand others vs. Jagdev Singh (supra), would not beapplicable to the case of these Petitioners, more so since therecovery is initiated after their superannuation. 7970.24wp etc(6) 7. Taking into account that these Petitioners were notinvolved in any mischief, fraud or deceit in orchestratingtheir wrongful pay revision, the law laid down by theHon’ble Supreme Court in Syed Abdul Qadir vs. State ofBihar and others, 2009 (3) SCC 475 and State of Punjaband other vs. Rafiq Masih (White Washer) etc. (2015) 4SCC 334 = AIR 2015 SC 696, would apply to these cases.”5.It is undisputed that, no fraud or ulterior motives havebeen attributed to the conduct of the Petitioners. It is also not thecase of the Zilla Parishad that they were instrumental inmanipulating their pay scales and allotting one extra increment intheir favour. The learned Advocate for the Zilla Parishad hascanvassed that the Zilla Parishad should be given an opportunityto verify as to whether any of these Petitioners were actuallyworking in the tribal/PESA area.6.The learned Advocate for the Petitioners counters thesaid submission on the basis of the pleadings on oath in thePetitions and further submits that barring Taluka and DistrictNandurbar, all other Talukas in District Nandurbar, fall in the 7970.24wp etc(7) tribal/PESA areas and these Petitioners were working in suchtribal/PESA areas. They were paid the one step extra incrementonly because they were working in tribal/PESA areas. 7.In the light of the above, the law laid down in SyedAbdul Qadir (supra) and Rafiq Masih (supra), would beapplicable to the case of the Petitioners. On the issue of theundertaking, this Court has already concluded that, an undertakingextracted at the stroke of retirement, is taking advantage of thehelplessness of such Petitioners. They are at the verge of theretirement and at the time of calculating their retiral benefits, anundertaking is extracted. There are instances when the Petitionershave approached this Court as the employers have not released theretiral benefits, since the Petitioners did not accede to the demandof an amount. 8.As such, these Writ Petitions are allowed. Theimpugned orders directing recoveries, are quashed and set aside.The recovered amounts shall be repaid to the Petitioners within 60days from today, and if such payment is paid within the timeline,to balance the equities, we would not impose interest. If the 7970.24wp etc(8) amounts are not paid within 60 days, the said amounts shall carryinterest at the rate of 6% p.a. from the date of the recoveries andthe interest component shall be recovered, not from the Stateexchequer, but from such officer of the Zilla Parishad on whoseconduct, the delay in payment has occurred. (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)sjk