Bombay High Court
Smt. Varsha Kapil Doshi vs The State Of Maharashtra Through The ... on 20 February, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:9425-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.564 OF 2023
Smt.Varsha Kapil Doshi )
Age 59 yrs., Occu : Assistant Public Prosecutor, )
R/at.75/77/79, Cave Lane No.2, )
Bhatia Niwas, Ground Floor, )
Mumbai 400 002. ) .. Petitioner
Versus
1. The State of Maharashtra )
Through the Additional Chief Secretary, )
Home Department, Mantralaya, )
Mumbai - 32. )
2. The Director, )
Directorate of Prosecutor, )
Maharashtra State, Mumbai )
Ketan Bhavan, Sadhika No.8, 5th Floor, )
J. Tata Road, Churchgate - 400 020. ) .. Respondents
---
Mr.Sandeep Dere a/w Ms.Arati Patil & Ms.Sonali Pawar for the
petitioner.
Ms.Reena Salunkhe, AGP for respondents-State.
----
CORAM : A.S. CHANDURKAR &
JITENDRA JAIN, JJ.
DATE : 20 th FEBRUARY 2024
Judgment (Per Jitendra Jain, J.) :-
. Rule. Ms.Salunkhe, learned Assistant Government Pleader
waives service of notice for respondents-State. By consent of the parties,
the writ petition is heard finally.
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2. By this petition under Article 226 of the Constitution of
India, the petitioner seeks to challenge the order dated 25 th September
2019 passed by the Maharashtra Administrative Tribunal ('Tribunal')
whereby the Original Application No.1093 of 2018 (OA) filed by the
petitioner came to be dismissed.
3. Brief facts are as under :-
(i) On 12th August 1993, the petitioner was appointed as a Police
Prosecutor and promoted to the post of Assistant Public Prosecutor on
2nd May 1996.
(ii) As per Maharashtra Government Servant (other than the Judicial
Department Service) Marathi Language Examination Rules, 1987 ('1987
Rules'), the petitioner was required to pass the Lower and Higher
Marathi Language Examination within 2 years from the date of
appointment which in the instant case, expired on 12th August 1995.
(iii) However, the petitioner passed the said exam on 10 th April 2015.
Inspite of the same, she continued to receive increments from 13 th
August 1995 to 18th January 2015. Therefore, on 17 th November 2018,
the respondents initiated an action for recovery of increments released
during the said period between 1995 and 2015. The petitioner retired on
30th January 2019.
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4. Being aggrieved by the order of recovery dated 17 th
November 2018, the petitioner filed OA No.1093 of 2018 before the
Tribunal. The Tribunal vide its order dated 25 th September 2019
dismissed the said OA on the ground that the petitioner did not disclose
that she had not cleared Marathi Language Examination within a period
of 2 years but continued to receive the increments and therefore, the
order of recovery was justified. It is in this backdrop that the petitioner
is before us challenging the order of the Tribunal.
5. The petitioner submits that the respondents themselves in
the reply filed before the Tribunal has admitted that it was due to their
own inadvertence that the increments came to be released and therefore,
the reasoning of the Tribunal that the petitioner had suppressed this fact
is erroneous. The petitioner also submits that the respondents have
admitted in the reply that the work for which the petitioner was
appointed did not get hampered merely because she did not clear the
Marathi Language Examination although the documents which she was
supposed to work while on duty were in Marathi language. The
petitioner relied on the decision of the Supreme Court in case of State of
Punjab & Ors. Vs. Rafiq Masih (White Washer)1 and submitted that the
Tribunal has not appreciated the said judgment correctly and has
1 (2015) 4 SCC 334
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erroneously dismissed the application.
6. Per contra, the respondents submit that the decision in
case of Rafiq Masih (supra) is not applicable since the petitioner has
suppressed that she had not cleared her Marathi Language examination
and continued to receive the increments. The respondents further
submitted that the aforesaid decision of the Supreme Court is not
applicable because the said decision is applicable only to Class-III and
Class-IV services whereas the petitioner was Class-I service. The
respondents, therefore, supported the order of the Tribunal and prayed
for dismissal of the petition.
7. We have heard the learned counsel for the petitioner and
the respondents and with their assistance perused the documents
annexed to the petition.
8. Admittedly, there is no dispute that the petitioner did not
clear Marathi Language Exam within the time specified in the 1987
Rules i.e. within two years from the date of appointment which expired
on 12th August 1995, but the petitioner cleared the exam in 2015. The
respondents in their reply before the Tribunal in para 10 have admitted
that it was their own mistake that the increment came to be released. It
is not the case in the reply of the respondents that there was any
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suppression on the part of the petitioner nor was it the reason given in
the communication dated 17th November 2018 by which the recovery
was sought. Therefore, the reasoning given by the Tribunal that the
petitioner had suppressed this fact is not based on any material on
record nor is it a reason mentioned in the order dated 17 th November
2018. The same is also not the case of the respondents in the reply. It is
a settled position that validity of the order has to be tested on the
touchstone of the original order and nothing can be added or subtracted
thereto. Therefore, the Tribunal was not justified in rejecting the
Original Application on the ground of suppression by the petitioner.
9. The respondents have admitted in the reply before Tribunal
that it was their mistake in releasing the increment. The respondents
have also not stated that on account of the petitioner not clearing her
Marathi Language Exam the works suffered. However, merely because
the work did not suffer it cannot be the sole basis of giving relief to the
petitioner.
10. At this juncture, it is relevant to reproduce the illustrative
situations laid down by the Supreme Court in the case of Rafiq Masih
(supra) where recoveries would be impermissible in law.
(i) Recovery from employees belonging to Class-III and Class-IV 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.
(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 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.
11. The petitioner was to retire on 30th January 2019 and the
order seeking recovery has been passed on 17 th November 2018. The
Supreme Court in the case of Rafiq Masih (supra) has stated that
recovery from employee is impermissible in law when excess payment
has been made for a period in excess of five years before the order of the
recovery is issued. In the instant case, the payment has been made from
1995 which is sought to be recovered in the year 2018 and therefore the
same being in excess of five years, the respondents are not justified in
seeking recovery.
12. The Supreme Court in the case of Rafiq Masih (supra)
further also observed that no recovery is permissible from employees
who are due to retire within one year of the order of the recovery. In the
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instant case, the order of recovery is on 17th November 2018 and the
retirement is on 30th January 2019. Therefore, the case of the petitioner
squarely falls within the parameters laid down by the Supreme Court for
non-recovery of the dues.
13. The contention of the respondents that decision of the
Supreme Court would be applicable only to class III and IV service
employee is not correct. The situations summarized in para 12 of the
said decision, insofar as the clause 1 is concerned is for class III and IV
service employee, whereas with respect to the other situations it is
applicable to all class of employees. Therefore the contentions of the
respondents on this count is also to be rejected.
14. It is not the case of the respondents in the order dated 17 th
November 2018 that the petitioner having not cleared Marathi Language
Examination represented to the respondents as if she cleared the exam.
Therefore the contention of mis-representation at the behest of the
petitioner is also not correct.
15. The other parameters laid down by the Supreme Court is
that recovery if made would be harsh or arbitrary as would outweigh the
equitable balance of the employer's rights to recover. In the instant case,
the respondents themselves have admitted that it was their mistake in
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releasing the increment. Furthermore, work of the petitioner has not
suffered on account of Marathi Language Examination cleared belatedly
and thirdly it would be harsh to recover the increment released during
period between 1995 and 2015 when the employee is on the verge of
the retirement. In our view, considering all these factors the equitable
balance lies in favour of the petitioner and not the respondents to quash
the recovery order dated 17th November 2018. In this connection, it is
also important to note para 8 of the Rafiq Masih's case which reads as
under :-
"8.As between two parties, if a determination is rendered in favour
of the party, which is the weaker of the two, without any serious
detriment to the other (which is truly a welfare State), the issue
resolved would be in consonance with the concept of justice, which
is assured to the citizens of India, even in the preamble of the
Constitution of India. The right to recover being pursued by the
employer, will have to be compared, with the effect of the recovery
on the concerned employee. If the effect of the recovery employee
would be, more unfair, more wrongful, more improper, and more
unwarranted, than the corresponding right of the employer to
recover the amount, then it would be iniquitous and arbitrary, to
effect the recovery. In such a situation, the employee's right would
outbalance, and therefore eclipse, the right of the employer to
recover".
16. In view of above, we pass the following order :-
ORDER
(i) Communication dated 17th November 2018 is quashed and set aside.
(ii) Order passed by the Maharashtra Administrative Tribunal in Original Application No.1093 of 2018 on 26 th September 2019 is set aside.
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(iii) Excess increments paid to the Petitioner for a period from 13th August 1995 to 18th January 2015 are not liable to be recovered.
(iv) The petitioner is entitled to receive pension by calculating her entitlement from the date she cleared the requisite examinations.
(v) Rule is made absolute in the aforesaid terms with no order as to costs.
JITENDRA JAIN, J. A.S. CHANDURKAR, J.
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