Allowed

Akram Khan Burhan Khan v. the Zilla Parishad Jalgaon and Another

Bombay HC15 Sept 2021WP/3480/2020

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging the recovery of an erroneously paid excess amount from the petitioner's retirement benefits. While acknowledging the grounds for recovery, the Court granted relief due to coordination with similar cases, directing a refund and imposing a directive for mandatory undertakings on excessive payments.

What did the court decide?

Allowed the petition; directed respondents to refund the recovered amount of Rs. 1,83,699/- without interest within eight weeks; directed Chief Secretary to mandate undertakings for future recovery of

Akram Khan Burhan Khan Vs the Zilla Parishad… — Pension and Retirement Benefits | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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918 WRIT PETITION NO.3480 OF 2020

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Akram Khan Burhan Khan Age: 58 years, Occu: Retired, R/o. Rahemat Nagar, In front of Manoj Garage, Canal Road, Wadalagaon, Nashik, Dist. Nashik.

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...Petitioner

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Versus

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The Zilla Parishad, Jalgaon, Through its Chief Executive Ofcer.

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The Education Ofcer rPrimary) Zilla Parishad, Jalgaon.

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...Respondents

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Mr. V.B. Patil, Advocate for the Petitioner. Ms. Chaitali Choudhary – Kutti, Advocate for Respondent Nos.1 & 2.

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CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J. DATED : 15^th SEPTEMBER, 2021

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ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.) :-

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Rule. Rule made returnable forthwith and heard fnally by the consent of the parties.

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The petitioner has put-forth prayer clause rB) and rC) as

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under:

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“B. By appropriate writ, order or direction in the like nature of writ, the order passed by Respondent No.2 dated 13.12.2019 in respect of recovery of amount of Rs.1,83,699/deducted/recovered from the retiral benefts of the Petitioner r EXHIBIT ‘B’ ) may please kindly be quash and set aside.

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C. By appropriate writ, order or direction in the like nature

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of writ, may please kindly be direct the Respondents to refund an amount of Rs.1,83,699/- deducted/recovered from the retiral benefts of the Petitioner as per order dated 13.12.2019 r EXHIBIT ‘B’ ) and for that purpose appropriate orders may kindly be passed.”

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The petitioner relies upon an order passed by a coordinate bench of this Court rCoram: S.V. Gangapurwala and Anil S. Kilor, JJ.) dated 11.09.2019 in Writ Petition No.11190 of 2019 Shaikh Humayun Shaikh Nayyar Vs. Zilla Parishad Jalgaon and Writ Petition No.340 of 2018 till 353 of 2018 with 2020 of 2018, 2025 of 2018 to 2026 of 2018 and 8538 of 2018, wherein this Court relied upon State of Punjab Vs. Rafiq Masih (White Washer), 2015 (4) SCC 334 and set aside the impugned orders to the extent of directing recovery and further directed returning of the amount already recovered. All the employees were working in the Class-III and Class-IV categories.

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The learned advocate representing the respondents submits that the pay fxation of the petitioner was carried out on 01.06.1996. Due to passage of almost 25 years, it would be difcult to state as to whether the petitioner was involved directly in his pay fxation and whether he instrumentalieed his pay fxation. She submits that the petitioner retired on 31.05.2019 and after a close scrutiny of the calculation of retiral benefts, it was noticed that the petitioner was inadvertently paid an amount of Rs.1,83,699/-.

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She further draws our attention to the fact that the petitioner was entitled for Rs.23,41,785/- as retiral benefts. Out of this

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total amount, the respondents recovered only Rs. 1,83,699/- as it was towards excessive payment made when the pay fxation was erroneously carried out. The petitioner cannot be said to be a man with a humble background and it also cannot be said that he has no funds to make the repayment of excess amount, as was the case in Rafiq Masih rSupra). She relied upon a view recently taken by this Court rCoram: Ravindra V. Ghuge and S.G. Mehare, JJ.) in the matter of Ananda Vikram Baviskar Vs. The State of Maharashtra and Others in Writ Petition No.13262 of 2018, wherein this Court concluded that in every case of recovery, the law laid down in Rafiq Masih rSupra) would not be applicable and the view taken by the Hon’ble Apex Court in Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others, AIR 2012 SC 2951 and High Court of Punjab and Haryana and Others Vs. Jagdev Singh, 2016 AIR (SCW) 3523: (2016) 14 SCC 267 would apply .

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She further submits that barring conditions like recovery from Class-III and Class-IV categories and recovery within a year to retirement, none other conditions in Rafiq Masih rSupra) would apply to this case. She strenuously submits that the petitioner cannot canvass hardships in relation to the recovery of the amount because he is being paid lump sum retiral benefts amount of Rs.23,41,785/- and, therefore, recovery of Rs.1,83,699/- would be a paltry amount.

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We fnd that the submissions of Miss Choudhary on behalf of the respondents appears to be convincing. However, since a co-

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ordinate bench of this Court has allowed a group of petitions, who are co-employees identically placed as the petitioner and are the employees of the same respondents before us, any diferent view to be taken in this case, would cause prejudice to the petitioner. The learned advocate for the respondents submits that as there was no undertaking taken from the petitioner and as the record does not reveal any fraud played by the petitioner.

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As such, this petition is allowed in terms of prayer clause rB) and rC) reproduced above. The respondents shall refund the recovered amount, without interest within eight weeks from today.

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Before parting with this matter, we deem it appropriate to record that we are coming across such cases practically everyday. Most of the cases are in connection with the various eilla parishads and State instrumentalities. In most of the cases, there is no undertaking executed by the benefciary. We cannot ignore the fact that in such cases, the employee, though disentitled, has pocketed the tax payers amount.

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We, therefore, deem it appropriate to direct the Chief Secretary of the State of Maharashtra to issue appropriate directions to all the departments of the State Government and local authorities/bodies, to mandate executing of undertakings from employees, who would be benefciaries of pay fxation or calculations of increments or any similar calculations with regard to monetary benefts.

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It shall be stated in such undertakings that they would refund excess amounts if subsequently found to have been paid in excess. This would be in the interest of the State Exchequer and would also control excess payments which cannot be recovered subsequently. The Chief Secretary shall consider the judgment delivered by the Hon’ble Apex in Jagdev Singh rSupra), wherein the Hon’ble Apex Court has concluded that if an undertaking is executed by such a benefciary at the time of receiving monetary benefts, he would be liable to repay the said amount to the employer.

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11. Rule is made absolute in the above terms.

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(S.G. MEHARE. J.)

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(RAVINDRA V. GHUGE, J.)

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Mujaheed//

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Akram Khan Burhan Khan v. the Zilla Parishad Jalgaon and Another

Case brief

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Akram Khan Burhan Khan v. the Zilla Parishad Jalgaon and Another

Case brief

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