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Arif Abdul Wahab Shaikh v. the State of Maharashtra Thr. Secretary Home Dept. and Ors.

Bombay HC2 Mar 2023WP/8707/2021

Case brief

AI extract

What is this about?

High Court quashed an order withholding pension amount due to excess salary paid during service, relying on principles of equity and the Supreme Court's judgment in the Rafiq Masih case. The court directed the refund of any amount recovered within four months.

What did the court decide?

The impugned order of recovery is quashed and set aside, and the respondents are directed to refund the recovered amount expeditiously within four months.

Arif Abdul Wahab Shaikh Vs the State of… — Pension and Retirement Benefits | Bombay HC (2023)

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SALUNKE J V

19-WP.8707.2021.

Digitally signed by SALUNKE J V Date: 2023.03.03 10:56:37 +0530 Jvs.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 8707 OF 2021

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Shri. Arif Abdul Wahab Shaikh } Petitioner versus The State of Maharashtra & Ors. } Respondents

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Mr. Anuj Tiwari with Ms. Saba Anjum for the petitioner.

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Ms. R. A. Salunkhe, AGP for State.

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CORAM : S.V. GANGAPURWALA, ACJ. &

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SANDEEP V. MARNE, J.

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DATED : MARCH 2, 2023

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P.C. :-

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Heard learned counsel for the petitioner and the learned AGP. The petitioner is challenging the pension payment order withholding amount from the gratuity on the ground that the petitioner during service were paid excess salary due to wrong fixation.

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Learned AGP submits that the petitioner’s remedy is before the Maharashtra Administrative Tribunal. The petitioner has moved this court after six years. According to the learned AGP as on wrong premise pay fixation was done and excess salary was paid, respondents are entitled to recover the same from the retiral benefits.

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The learned counsel for the petitioner submits that this court in case of similarly situated persons, has set aside the order of recovery and directed to refund the amount of which recovery was made on account of wrong fixation.

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19-WP.8707.2021.

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The learned counsel refers to the judgment and order dated 18.07.2017 passed in Writ Petition No.5367 of 2016 and the judgment and order dated 12.02.2016 passed in Writ Petition No.695 of 2016.

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It is not disputed that the petitioner is similarly situated as the petitioners in Writ Petition Nos.5367 of 2016 and 695 of 2016, referred to above and are from the same Department.

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The petitioner has retired from service and claim the refund of the amount recovered from them on account of excess payment made to them towards over payment and allowances. The petitioner relies on the judgment in the case of State of Punjab and others vs. Rafiq Masih (White Washer), etc. reported in 2015(4) SCC 334. The Apex Court in the said judgment laid down the following parameters: -

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(i) Recovery from employees belonging to Class-III and ClassIV service (or Group C and Group D service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(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 have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employees, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recovery.

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The petitioner was working on Class-III post on the date of retirement. It would cause hardship to the petitioner if the

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19-WP.8707.2021.

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said amount is recovered. All the parameters detailed in the judgment of the Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer), etc. (supra) are attracted in the present matter.

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In light of the above, the impugned order of recovery is quashed and set aside. In case the respondents have recovered the amount from the petitioner, the same shall be refunded to the petitioner expeditiously and preferably within four (04) months.

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The Writ Petition is accordingly disposed of. No costs.

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(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)

Arif Abdul Wahab Shaikh v. the State of Maharashtra Thr. Secretary Home Dept. and Ors.

Case brief

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Arif Abdul Wahab Shaikh v. the State of Maharashtra Thr. Secretary Home Dept. and Ors.

Case brief

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What did the court decide?

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