Writ Petition No.7885 of 2016

13th February, 2018.

Petitioner Counsel: Mr. S.B. SOLANKE
Respondent Counsel: Mr. S.B. YAWALKAR

Cases Cited:
State of Punjab and ors. etc. Vs. Rafiq Masih (White Washer) etc., 2015(1) ALL MR 957 (S.C.)=2015(4)S.C.C. 334 [Para 5,14]
High Court of Punjab and Haryana and ors. Vs. Jagdev Singh, 2016 ALL SCR 1676=(2016) 14 S.C.C. 267 [Para 14,15]

JUDGMENT

S. S. SHINDE, J. :- Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel appearing for the parties.

2. This Petition under Article 226 of the Constitution of India, is filed with following prayers:

"(a) By issuing writ of mandamus or any other writ, order or directions in the like nature, this Hon'ble Court may be pleased to direct the respondents no.2 to 5 to refund the amount of Rs.2,24,312/- which is recovered from the Petitioner within stipulated period and for that purpose issue necessary orders.

(b) By issuing writ of mandamus or any other writ, order or directions in the like nature, this Hon'ble Court may be pleased to direct the respondent nos.2 to 5 to grant leave encashment for 150 days to the petitioner and for that purpose issue necessary orders."

3. It is contended by the Petitioner that he had worked with Respondent No.5 on the post of Assistant Teacher and he came to be retired due to superannuation, on 28th February, 2013. At the time of preparation of pension proposal of the Petitioner, the authorities found that some amount is paid in excess to the Petitioner due to wrong pay fixation at the hands of the respondent authorities and therefore, the entry in respect of making recovery of Rs.1,46,034/- was taken in the service book of the Petitioner. It is further contended that Respondent No.5 thereafter issued a letter dated 23rd April, 2013 to the Accounts Officer, Aurangabad thereby stating that though the amount of recovery from the Petitioner is shown as Rs.1,46,034/-, it should be Rs.2,24,312/- and requested to replace the amount of recovery by Rs.2,24,312/-.

4. It is further contended by the Petitioner that though he had prayed for encashment of his 150 leaves but the Respondent authorities had granted leave encashment for only 79 leaves thereby stating that, no such leave encashment can be granted in favour of the Petitioner. The Petitioner has referred to the Government Resolution dated 6th December, 1996 and submitted that in the said Resolution it is clearly provided that the provisions of leave encashment are also applicable to the persons working with the departments having long vacations. It is further submitted that by Government Resolution dated 15th January, 2001 the number of leaves which can be encashed, are extended to 300 days and therefore the Respondent authorities ought to have granted leave encashment for 150 leaves, which were at the credit of the Petitioner. Hence this Petition.

5. Learned counsel appearing for the Petitioner referring to the averments in the Petition, submits that the pay of the Petitioner was fixed by the Respondent authorities and there was no mistake on the part of the Petitioner in the said alleged wrong pay fixation. It is submitted that Respondents have wrongly deducted an amount of Rs.2,24,312/- from the retirement dues of the Petitioner and it is prayed that the Respondents may be directed to repay the said amount to the Petitioner. In support of his submissions, learned counsel placed reliance upon the exposition of law laid down by the Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc., 2015(4)S.C.C. 334 : [2015(1) ALL MR 957 (S.C.)] Learned counsel further submitted that though the Petitioner is entitled to get leave encashment for his 150 earned leaves, the Respondent authorities have granted leave encashment for only 79 days, which is contrary to the policy of the State Government. He therefore submits that the Writ Petition deserves to be allowed.

6. On the other hand learned Additional Government Pleader appearing for the Respondents, referring to the affidavit-in-reply filed on behalf of Respondent Nos.1 to 4 submits that while granting new pay-scale to the employees, the employees have to give undertaking as per Clause 15.6 of Government Circular bearing (Marathi) No.Vepura-1209/ Pra.Kra.69/Seva-9 dated 29th April, 2009 that, if there would be any wrong fixation and if there would be any excess payment made to the employee, due to wrong fixation, he/she would be liable to repay the same to the Government. In view of the said circular, the Petitioner has given undertaking while fixation of pay and he has specifically stated that if there is any wrong pay fixation and excess payment if paid, then he is bound to refund that amount.

7. Learned Additional Government Pleader has further submitted that, so far as prayer for leave encashment of 150 days is concerned, by order dated 20th January, 2017 the permission has been granted to leave encashment. An amount of Rs.2,28,330/-was withdrawn from District Treasury Office, Beed vide voucher No.30 dated 2nd February, 2017 and paid to the Petitioner through cheque.

8. Learned Additional Government Pleader submitted that the Petitioner was initially appointed as supervisor, thereafter he was absorbed as Assistant Project Officer due to surplus in the said cadre. It is submitted that as per Government Notification in Finance Department dated 10th December, 1998 the pay-scale applicable to the post of Assistant Project Officer is Rs.5000-8000/. However, while fixing the revised pay-scale of the Petitioner, his pay was wrongly fixed in the pay-scale of Rs.5500-9000. Due to wrong fixation clarified by the Pay Verification Unit (Squad), Aurangabad, the Accountant General NagpurII sanctioned the pension case of the Petitioner in the pay-scale of Rs.5000-8000, which is applicable to the post of Assistant Project Officer. When service book of the Petitioner was sent to Pay Verification Unit, Aurangabad, it has made objection that pay scale of Rs.5500-9000 has been wrongly granted to the Petitioner. In respect of the allegations made by the Petitioner that before deducting the said amount the Petitioner was not heard, it is submitted that as per the Government Notification, the recovery has been made and therefore there was no need to give personal hearing to the Petitioner. It is submitted that in accordance with the policy of the Government of Maharashtra, as excess amount was paid to the Petitioner due to wrong pay fixation, as per the undertaking given by the Petitioner, the said excess amount was recovered from the Petitioner, which action on the part of the Respondent authorities is perfectly legal. Therefore, it is prayed that the Writ Petition may be rejected.

9. We have given careful consideration to the submissions of the learned counsel appearing for the Petitioner and learned Additional Government Pleader appearing for the State. With their able assistance, we have carefully perused the averments in the Petition, the documents placed on record and also the reply filed on behalf of the Respondents and the annexures thereto, including the relevant Government Resolutions and Notifications.

10. So far as the grievance of the Petitioner that he is entitled to get leave encashment for his 150 earned leaves which were at his credit at the time of retirement is concerned, the Respondents have placed on record copy of the order dated 20th January, 2017 issued by the Deputy Director of Education, Aurangabad Region, Aurangabad, whereby permission has been granted to encash 150 days earned leaves which were at the credit of the Petitioner. It is specifically submitted by the Respondents in the affidavit that an amount of Rs.2,28,330/-was withdrawn from District Treasury Office, Beed vide Voucher No.30 dated 2nd February, 2017. The said facts are not disputed on behalf of the Petitioner. Thus, it is clear that the grievance raised by the Petitioner in respect of leave encashment already stands redressed.

11. From the perusal of the contents of the affidavit filed on behalf of the Respondents it is clear that initially the Petitioner was appointed as Supervisor in the pay-scale of Rs.335680 in Third Pay Commission, thereafter he was absorbed as Assistant Project Officer in the pay-scale of Rs.1400-2600. However, while revising his pay-scale in Fifth Pay Commission, instead of pay-scale of Rs.5000-8000, his pay was wrongly fixed in the pay-scale of Rs.5500-9000. We have perused the Notification dated 10th December, 1998 issued by the Government of Maharashtra in its Finance Department, wherein old pay-scales and revised pay-scales are mentioned. The post of Assistant Project Officer is at Sr. No.136 of the said Notification, wherein old pay-scale is shown as Rs.1400-2600 and revised pay-scale is shown as Rs.5000-8000. Thus, it is crystal clear that in the Fifth Pay Commission, the pay-scale applicable to the post held by the Petitioner was Rs.5000-8000, however due to the mistake on the part of the Respondent authorities, the pay of the Petitioner was wrongly fixed in the pay-scale of Rs.5500-9000.

12. We have perused the Circular dated 29th April, 2009 issued by the Government of Maharashtra in its Finance Department. It is specifically mentioned in the said Circular that if there is any wrong pay fixation and excess payment paid, the concerned employee is bound to refund the said amount. The relevant portion of the Circular dated 29th April, 2009 reads as under:

"15-6 iwoZ rikl.khP;k vHkkoh dkgh Fkdckdh pqdhus ifjxf.kr dj.;kr ;s.;kph 'kD;rk vkgs vkf.k rh vfriznku Eg.kwu BjY;kl R;kph uarj olqyh djkoh ykxsy- vkgj.k o laforj.k vf/kdk&;kaUkh Fkdckdhph jDde Hkfo"; fuokZg fu/kh [kkR;kr tek djrkuka R;kaP;k fu;a=.kk[kkyhy 'kkldh; deZpk&;kauk vls Li"V djkos dh] tek dj.;kr ;s.kkjh jDde] uarj fun'kZ.kkl ;s.kk&;k folaxrh y{kkr ?ksÅu R;kaP;kdMwu ns; gks.kkjh jDde lek;ksftr dj.;kP;k vf/ku jkghy- ;klkBh izR;sd deZpk&;kyk lq/kkfjr lajpusrhy osru izFke vnk dj.;kr ;sbZy R;kosGh vFkok R;kuarj ;klkscrP;k tksMi= 2 vuqlkj vls ys[kh opu i= n;kos ykxsy dh] osrukP;k fuf'prheqGs dkgh tkLr jDde tek >kyh vls vk

13. As stipulated in the Circular dated 29th April, 2009, referred above, the Petitioner has given an undertaking that, in case it is transpired in future that due to wrong pay fixation excess payment is made to him, he would repay the said amount to the Government of Maharashtra. The copy of the undertaking so furnished by the Petitioner is placed on record by the Respondents, which reads as under

“opui=””

eh] vls opu nsrks dh] pqdhP;k osru fuf’prheqGs fdaok iq<s osrufuf’prh e/;s folaxrh vk<Gwu vkY;keqGs eyk vfriznku >kY;kps fun’kZukl vkY;kl rs eyk Hkkfo”;kr eyk iznku dj.;kr ;s.kk&;k jdesrwu lek;ksthr d:u fdaok brj izdkjs eh 'kklukl ijr djhu-

I hereby undertake that any excess payment that may be found to have been made as a result of incorrect of pay or any excess payment detected in to the Government either by adjustment future payments due to me or otherwise

lgh

fBdk.k usduqj rk-ft- uko Jh- f’kjlkB chM okYehd flrkjke fnukad 29@06@2009 inuke lgf’k{kd

lgh izkpk;Z 'kkldh; v/;kid fon;ky;] usduwj rk-ft-chM dk;kZy; izeq[k”

14. We have carefully perused the ratio laid down by the Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc., [2015(1) ALL MR 957 (S.C.)] relied upon by learned counsel appearing for the Petitioner. However, in support of his submissions, learned Additional Government Pleader has placed reliance upon the exposition of law laid down by the Supreme Court in the recent Judgment in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, (2016) 14 SCC 267 : [2016 ALL SCR 1676], wherein in Para 10, 11 and 12 of the Judgment it is observed that:

"10. In State of Punjab and Ors. etc. v. Rafiq Mashi (White Washer) etc. MANU/SC/1195/2014: (2015) 4 SCC 334 this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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 of 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 wrongly been required to discharge duties of a higher post, and has been paid accordingly, even though he should have 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 employer's right to recover. (emphasis supplied)

11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished and undertaking while opting for the revised pay scale. He is bound by the undertaking.

12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."

15. The facts in the present case are similar to that of the facts in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, [2016 ALL SCR 1676] cited supra and, therefore the ratio laid down is squarely applicable. In the present case in hand also the Petitioner was put on notice that any payment found to have been made in excess would be required to be refunded. The Petitioner has furnished an undertaking while opting for the revised pay-scale and therefore he is bound by the said undertaking.

16. The recovery of the excess amount paid to the Petitioner has already been made from the retirement dues payable to the Petitioner. The action taken by the Respondents for recovering the excess amount is in accordance with the policy and guidelines laid down by the Government of Maharashtra in that behalf. No case is made out by the Petitioner for interference in exercise of writ jurisdiction of this Court. There is no merit in the Writ Petition.

17. For the reasons aforestated, the Writ Petition is rejected. Rule stands discharged. There shall be no order as to the costs.

Petition dismissed.