Recovery of excess amount from retiral benefits, especially from retired employees or employees belonging to Class-III and Class-IV service, may be impermissible in law, considering the hardship caused and the fundamental principles of justice.

JUDGMENT

Abhay Ahuja, J. - Rule. Rule made returnable forthwith. Heard learned counsel for the parties finally, with consent.

2. Learned counsel Mr. Tandale, appearing for the petitioner submits that by an order dated 04.01.1997 passed by Superintending Engineer, Aurangabad, Irrigation Circle, benefit of time bound promotional pay scale had been granted to the petitioner with effect from 01-01-1996 and accordingly respondent no.2 under its order dated 15-04-1997 had fixed the pay. Subsequently, in 2004 the pay fixation had been done in accordance with the Fifth Pay Commission giving effect to from 01-01-1996. The petitioner had also received benefit of higher pay scale in the meanwhile. However, while the petitioner retired on superannuation on 31-05-2013, a recovery of Rs.77,446/- from the pensionary benefits and gratuity had been directed vide order dated 18-04- 2013 referring to cancellation order dated 24-09-2012 of higher pay scale since an objection was raised by Pay Verification Unit, Aurangabad and pay scale of petitioner had been revised with effect from 01-05-1996. Learned counsel submits that petitioner had been working as a junior clerk in Class-III category, the recovery sought on the verge of superannuation from retiral / gratuity benefit is unsustainable. It is not that the petitioner was at fault in receiving the amount recovered with reference to order dated 24-09-2012.

3. He further submits that the impugned order dated 18-04-2013 had been passed without giving notice to him. He refers to decision of Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer), 2015 AIR SC 969 and an order dated 05-12-2019 in Writ Petition 3205 of 2019 of this court.

4. Learned counsel Mr. Tandale, therefore, urges to allow the writ petition and quash and set aside the impugned order dated 18-04- 2013 and direct refund of the amount so recovered.

5. Learned counsel Mr. Dhongade and learned AGP appearing for respondents submit that due to wrong pay fixation, petitioner had received excess amount than otherwise due and its recovery is permissible having regard to Maharashtra Civil Services (Pension) Rules.

6. From the aforesaid submissions it is not disputed that petitioner has retired as junior clerk Class-III employee and recoveries have been made from this retiral benefits. The division bench of this Court while deciding Writ Petition No. 3205 of 2019 (supra) has referred to following extract from the decision of Supreme Court in the case of Rafiq Masih (White Washer) (supra).

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred 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 retire within one year, of the order recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, 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 the employers right to recover".

8. If any recovery is claimed from the petitioner the same shall be refunded to the petitioner preferably within four months. We regard to the deduction of pension and fresh pay fixation the petitioner may take appr