RAVINDRA v. GHUGE & R.M. JOSHI, JJ. DATE
Legal Reasoning
*1* 903wp13494o18IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13494 OF 2018Padmanath S/o Gotiram Lande,Age: 64 years, Occu: Nil,R/o: Plot No. 24, Gajanan Colony, Garkheda Parisar, Aurangabad.....PETITIONER-VERSUS-1. The State of Maharashtra,Through its Secretary, Water Supply and Sanitation Department, Mantralaya, Mumbai-32.2. The Member Secretary,Maharashtra Jeewan Pradhikaran, Express Tower, Nariman Point, Mumbai-32.3. The Chief Administrative Officer,Maharashtra Jeewan Pradhikaran, CIDCO Bhavan, Belapur, New Mumbai.4. The Superintending Engineer andPresident Circle Committee, Maharashtra Jeewan Pradhikaran, Shantipura, Chavani, Aurangabad.5. The Executive Engineer,Maharashtra Jeewan Pradhikaran, Rural and Urban Water Supply Scheme Division Vedant Nagar, Near Railway Station, Aurangabad, Dist. Aurangabad.6.The Dy. Chief Account Officer (II), *2* 903wp13494o18Maharashtra Jeewan Pradhikaran, CIDCO Bhawan (South Wing), Belapur, Navi Mumbai.…Shri U.R. Awate, Advocate i/by Talekar and Associates, for thePetitioner.Shri S.K. Tambe, AGP, for Respondent No.1/State.Shri S.S. Randive, Advocate for Respondent Nos.2 to 6.... CORAM : RAVINDRA V. GHUGE & R.M. JOSHI, JJ. DATE :- 02nd April, 2024ORAL JUDGMENT ( Per Ravindra V. Ghuge, J. ):- 1.Rule. Rule made returnable forthwith and heardfinally by the consent of the parties.2.At the outset, we need to record that though thismatter is pending for almost 5 years and notice having beenissued on 05.12.2018, the Respondents/ Maharashtra JeevanPradhikaran (MJP) did not file it’s affidavit in reply. After wegave an ultimatum notice to the MJP vide our order dated28.03.2024, that the MJP has tendered an affidavit in reply acrossthe Bar, dated 30.03.2024. Despite the strong objection of the *3* 903wp13494o18learned Advocate for the Petitioner, we are accepting the affidaviton record on the condition and with the consent of the Petitioner,that the MJP would donate an amount of Rs.5,000/- (Fivethousand only) to the Advocates’ Association of Bombay HighCourt, Bench at Aurangabad, on or before 15.04.2024, failingwhich, the said amount shall be recovered from the salary of theExecutive Engineer Shri Deepak Hanumant Koli, who has swornthe affidavit.3.We have considered the strenuous submissions ofthe learned Advocates for the respective sides and have perusedthe petition paper book. This is an open and shut case. ThePetitioner has retired on 31.12.2012. The first order of recoverywas issued by the employer on 14.12.2015. The Petitionerapproached this Court in Writ Petition No.9423/2015 which wasdecided by an extensive order dated 15.07.2016. The impugnedorder was set aside and the MJP was directed to issue a notice ofhearing to the Petitioner. The observations in paragraph Nos.8, 9and 10 of the judgment dated 15.07.2016, read as under:-“8. For the reasons aforesaid, the impugned orderdated 18th December, 2012, to the extent it hasreduced the amount of gratuity stands quashed
Legal Reasoning
*4* 903wp13494o18and set aside. The Respondents, in particular,Respondent Nos. 5 and 6 are directed to issuenotice to the petitioner within two weeks fromtoday, indicating therein particular date forappearance of the petitioner before RespondentNo.5. The petitioner, after receiving the noticefrom the concerned Respondents, shall appearbefore the said authority and if necessary filehis reply with documents in support of hiscontentions.9. Upon receiving such reply with documents, ifany, the concerned Respondents shall takeappropriate decision and pass order afresh, onits own merits, keeping in view the relevantrules, about the entitlement of the petitioner forpension and gratuity amount. In case thepetitioner's contentions raised on merits arefound to be correct, in that case, theRespondents shall resubmit the proposal ofpension and also issue fresh order for paymentof gratuity, as expeditiously as possible, andpreferably, within two weeks from taking suchfresh decision/passing the order. However, itwill be open for the concerned respondent toadjust the amount already paid, if any, to thepetitioner towards pension or gratuity.10. We direct Respondent Nos. 2 to 6 to completethe entire exercise, as expeditiously as possible,and preferably within 10 weeks from today andcommunicate the said decision to the petitioner.We make it clear that we have not entered uponthe merits of the contentions raised by thepetitioner or by Respondent Nos. 2 to 6.”4.On 12.07.2017, the Deputy Chief Auditor (1) passeda short order concluding that excess payment was made to thePetitioner and the said amount deserves to be recovered. In *5* 903wp13494o18support of this order, the MJP has set out the reasons in it’saffidavit in reply filed today in paragraph No.4 and an exercisefor the recalculation of the dues payable and the excess amountto be recovered, are set out in paragraph No.5. The justificationreason for concluding that excess amount was paid to thePetitioner, is set out in paragraph No.6, which reads as under:-“6.It is submitted that, after the hearing to thepetitioner and after considering his say,respondent reconsidered the case of thepetitioner in the light of applicable Govt.Resolution pertaining to the time boundpromotion scheme and assured carrierprogression scheme, on merit and thus foundthat the earlier order passed in the matterneeds no change hence, order dated12.07.2017 has been passed. It is thereforedenied that, order dated 12.07.2017 is just areiteration of the earlier order dated18.12.2012.” 5.It is, thus, apparent that the Petitioner has beensubjected to recovery only on account of the stand taken by theMJP that excess payment was made to the Petitioner, calculationswere incorrect and under a wrong belief, several monetarybenefits were given to him. The fact remains that the MJP wokeup from deep slumber in December 2015 after three years ofretirement of the Petitioner. The law laid down by the *6* 903wp13494o18Honourable Supreme Court in Syed Abdul Qadir vs. State ofBihar and others, 2009 (3) SCC 475 and State of Punjab andother vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334= AIR 2015 SC 696, would squarely apply to this case.6. In view of the above, this Writ Petition is allowedin terms of prayer clause B, C and D, which read as under:-“B. To quash the impugned order/communicationdated 12.07.2017 issued by Dy. Auditor,Maharashtra Jeevan Pradhikaran, Mumbai byissuing a writ of Certiorari or any other orderor direction of like nature.C. To direct the Respondents to fix the pension ofthe petitioner as per the last pay scale drawnby him and release the pension and the amountand other retiral benefits to the petitioner byissuing a writ of mandamus or any other orderor direction of like nature.D. To direct the respondents to release the amountrecovered from the petitioner from his pensionand other retiral benefits as expeditiously aspossible, pending hearing and final disposal ofthis petition.”7.Rule is made absolute in the above terms. kps ( R.M. JOSHI, J. ) ( RAVINDRA V. GHUGE, J. )