Bombay High Court
Divekar Kishanrao Kakde vs The State Of Maharashtra And Others on 8 January, 2020
Author: Anil S. Kilor
Bench: Prasanna B. Varale, Anil S. Kilor
This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4346 OF 2017
Divakar S/o Kishanrao Kakde
Age : 59 years, Occ. pensioner
r/o Baleshwar Krupa
Krishisarthi Colony, Basmat Road,
Parbhani - 431401. ...Petitioner
VERSUS
1. The State of Maharashtra,
Through the Secretary
Agriculture, Mantralaya,
Mumbai - 400 032
2. The Vice-Chancellor,
Vasantrao Naik Marathwada
Agriculture University, Parbhani
3. The Registrar
Vasantrao Naik Marathwada
Agriculture University, Parbhani
4. The Comptroller,
Vasantrao Naik Marathwada
Agriculture University, Parbhani ...Respondents
Shri S.V. Kurundkar, Advocate for the Petitioner
Shri S.B. Yawalkar, AGP for Respondent No. 1
Shri E.P. Sawant, Advocate holding for
Shri Mahesh P Kale, Advocate for Respondent Nos. 2 to 4
CORAM : PRASANNA B. VARALE AND
ANIL S. KILOR, JJ.
DATE : 8TH JANUARY, 2020
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This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020
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ORAL JUDGMENT : ( Per : Anil S. Kilor, J. )
1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, the matter is taken up for final disposal at admission stage.
2. By the present petition, the petitioner is challenging recovery made by the respondent-University, towards excess amount paid to the petitioner while he was in service.
3. The facts leading to the present writ petition, are as follows :-
The petitioner was initially appointed as a Stenographer (Lower Grade) (English) on 13.06.1980 and thereafter, he was promoted as a Higher Grade Stenographer in the year 1982.
4. He was given pay scale of Personal Assistant under In- service Assured Career Progression Scheme as per Government Resolution dated 20.07.2001, w.e.f. 01.10.1994.
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5. As per Government Resolution dated 06.05.1991, the respondent-University issued a circular dated 02.05.2005 and made it mandatory for English Stenographers (Lower/Higher/Selection Grade) working in the University to acquire Marathi stenography skill and Marathi typing skill and pass respective Marathi shorthand test at 80 words per minute and Marathi typing at 30 words per minute within a period of two years from 02.05.2005.
6. The said circular further states that failure to acquire such qualification would result in stoppage of annual increments with retrospective efect and recovery of payment so made towards it from future salaries as well.
7. Thereafter, the petitioner after going through the direct recruitment process, was nominated and appointed as 'Assistant Comptroller' vide appointment order dated 27.08.2008.
8. On 30.08.2014, when the petitioner was at the fag end of his service career as an Assistant Comptroller, he was informed vide letter dated 13.08.2014, by the University ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {4} 935-WP-4346-2017-J-
that there will be huge recovery from his gratuity amount owing to the fact that he did not pass ad-hoc board's Marathi stenography tests at 80 words per minute and Marathi typing 30 words per minute when he was working as a Stenographer.
9. The petitioner submitted a representation on 24.07.2015 requesting thereby for grant of exemption from circular dated 01.05.2005 and requested not to initiate recovery in the light of ratio laid down in the case of State of Punjab and others Vs. Rafi Masih (White Washer) and others reported in (2015) 4 SCC 334.
10. However, the said representation was rejected by the respondent-University. Thereafter, the petitioner got superannuated on 29.02.2016 on attainment of age of superannuation.
11. The respondent-University after superannuation of the petitioner issued order of payment of gratuity on 10.03.2016, thereby, total amount of gratuity was calculated by the respondent-University to the tune of Rs.5,75,520/-.
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12. However, the amount of excess payment to the tune of Rs. 3,87,798/- was recovered from the said amount of the gratuity on the ground that the petitioner did not acquire qualification of Marathi shorthand test at 80 words per minute and Marathi typing at 30 words per minute as per circular dated 01.05.2005. The said recovery done by the respondent University from the gratuity amount is under challenge by the present petitioner.
13. Heard Shri Kurundkar, learned Counsel for the petitioner, Shri Eknath Sawant, learned Counsel for the respondent Nos. 2 to 4 Agriculture-University and Shri Yawalkar, learned Assistant Government Pleader for respondent No. 1 - State of Maharashtra.
14. Shri Kurundkar, learned Counsel for the petitioner submits that the initial appointment of the petitioner as Stenographer (Lower Grade) and thereafter, promotion to the higher grade Stenographer (English) was in Group-C cadre.
15. He further points out that the subsequent appointment of the petitioner on the post of Assistant Comptroller was by ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {6} 935-WP-4346-2017-J-
nomination and it was not a promotion as the said post is in diferent cadre from the cadre of Stenographer. Thus, according to him, prior to the nomination of petitioner to the post of Assistant Comptroller, the petitioner was in Group-C cadre.
16. He has further drawn our attention to the judgment of the Hon'ble the Apex Court in the case of State of Punjab Vs. Rafi Masih (White Washer) to support his contention that the recovery against the petitioner is illegal and the same is not permissible.
17. The learned Counsel for the petitioner further argues that the recovery of excess amount paid to the petitioner was made from the amount of the gratuity and as per the provisions of Gratuity Act, more particularly, section 13 of the Gratuity Act, such recovery is not permissible. Thus, according to him, the impugned action of recovery made by the respondent-University is illegal.
18. The learned Counsel for the petitioner has pointed out that the respondent Agriculture-University, on the one hand, made recovery of excess amount paid to the petitioner on ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {7} 935-WP-4346-2017-J-
the ground that the petitioner failed to acquire Marathi stenography skill at 80 words per minute and Marathi typing test at 30 words per minute as per circular of the University dated 02.05.2005 and on the other hand, the University has granted exemption to many employees, who have not acquired said skill.
19. The learned Counsel for the petitioner submits that the object behind putting the condition of passing Marathi stenography and Marathi typing test was to learn language Marathi by those, who are working in the State of Maharashtra, but not having the knowledge of Marathi. He submits that the petitioner is borne and brought up in Maharashtra and he knows Marathi very well. He points out that University has granted exemption to many employees on the same ground that those employees know Marathi language. Thus, according to the learned Counsel for the petitioner, the respondents have made discrimination amongst employees similarly circumstanced and thereby, made illegal recovery against the petitioner.
20. Shri Eknath Sawant, learned Counsel for the respondent-University has drawn our attention to the pay ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {8} 935-WP-4346-2017-J-
scale of Assistant Comptroller and pointed out that now the State of Maharashtra vide Govt. Order dated 27.05.2016, has clarified the doubts in respect of diferent cadres in view of the pay band, the employees are receiving. According to him, the pay band of the petitioner as Assistant Comptroller shows that petitioner is not of Group-C cadre, but he is of Group-B cadre and therefore, according to the learned Counsel for the respondent-University, the judgment in the case of State of Punjab Vs. Rafi Masih (White Washer) would not apply to the case of the petitioner.
21. He further points out that the petitioner had given an undertaking for payment of excess amount received by him, from his gratuity amount and in view of the undertaking given by the petitioner, the amount was recovered from the petitioner. He submits that in case of undertaking, the case of State of Punjab Vs. Rafi Masih (White Washer) would not apply and to support his contention, the learned Counsel for the respondent-University relies upon the Judgment of the Hon'ble Supreme Court of India in the case of High Court of Punjab and Haryana and Others Vs. Jagdev Singh reported in (2016) 14 SCC 267. ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {9} 935-WP-4346-2017-J-
22. To consider rival contentions, we have gone through the record and also perused the judgment cited by both the parties. It is the contention of the respondent-University that the petitioner was in Group-B cadre as the petitioner at the time of superannuation was holding the post of 'Assistant Comptroller'. To support this contention, the learned Counsel for the University has drawn our attention to the pay scale of the post of Assistant Comptroller i.e. in the pay scale of Rs. 7450-225-11500/-.
23. He further invited our attention to the Government order dated 27th May, 2016 wherein the said pay band is shown in a cadre of Group-B. Thus, according to the learned Counsel for the respondent-University, the judgment in the case of Rafi Masih (supra) cited by the petitioner is not applicable.
24. We reject the said contention as it is an admitted position that the initial appointment of the petitioner was as Stenographer (Lower Grade) and thereafter, he was promoted on the post of Higher Grade Stenographer. The ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {10} 935-WP-4346-2017-J-
pay scale of both the said posts was Rs.395-15-500-20-700- Extn-20-800 which falls in a cadre Group-C.
25. As far as the appointment of the petitioner on the post of 'Assistant Comptroller' is concerned, the said appointment was not by way of promotion, but it was by nomination and it was not from the cadre of Stenographer, but it was a diferent cadre.
26. Thus, in the said backdrop of admitted facts, the pay scale of the petitioner on the post of 'Assistant Comptroller' is not relevant while deciding issue about the cadre of the petitioner and legality of recovery made from the petitioner.
27. The initial appointment of the petitioner on the post of Lower Grade Stenographer and thereafter promotion on the Higher Grade Stenographer, both the posts were in cadre Group-C, and therefore, we have no hesitation to hold that the present case is covered by the case of Rafi Masih (supra). The relevant paragraph of the said judgment reads thus -
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, wherein this Court recorded the following observation in para 58: (SCC p. 491) ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {11} 935-WP-4346-2017-J-
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, B.J. Akkara v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur."
15. Examining a similar proposition, this Court in B.J. Akkara v. Govt. of India observed as under: (SCC pp. 728-29, para 28) "28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it . As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {12} 935-WP-4346-2017-J-
circumstances of any particular case refuse to grant such relief against recovery."
(emphasis supplied) A perusal of the aforesaid observations made by this Court in B.J. Akkara case reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again afrmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from the employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that the employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. Class III and Class IV--sometimes denoted as Group C and Group D) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
18. 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 to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
28. The learned Counsel for the respondent tried to justify recovery in view of the circular dated 02.05.2005 whereby the respondent-University made it mandatory to acquire Marathi stenography skill and Marathi typing skill within a period of two years from the date of circular dated 02.05.2005.
29. The learned Counsel for the respondent points out that it is specifically mentioned in the said circular that failure to acquire such qualification would result in stoppage of ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {14} 935-WP-4346-2017-J-
annual increments with retrospective efect and recovery of payment so made towards it from future salaries as well.
30. He submits that the petitioner was knowing that he fails to acquire the said qualification and the recovery was made as per the undertaking given vide letter dated 19.08.2014 by the petitioner, permitting the respondent- University is an undertaking and in view of the said undertaking whereby the petitioner permitted the respondent-University to recover the amount of the excess payment from the gratuity amount of the petitioner. According to the respondent-University in view of undertaking, the case of Rafi Masih (supra) will not apply whereas the case of Jag Dev Singh (supra) would apply wherein the Hon'ble Supreme Court of India in para 11 has categorically observed that the principles enunciated in proposition (ii) in Rafi Masih (supra) cannot apply towards situation where the ofcer furnished an undertaking while opting for revised pay scale.
31. To consider this contention of the learned Counsel for the respondent, we have perused the letter dated ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {15} 935-WP-4346-2017-J-
19.08.2014. The relevant portion of the said letter is reproduced herein which reads thus -
vki.kkal fouarh dj.;kr ;srs dh] fo|kihB iz'kkluOnkjs lnjhy izLrkokoj fu.kZ; gksbZi;Zar ek>h izLrkohr olqyh Fkkacokoh-
rlsp xro"khZ ekÖ;k eqyka o eqyhps yXu >kY;keqGs [kpkZpk vkfFkZsd Hkkj iMr vkgs- lnjhy olwyh osrukrwu dikr >kY;kl ek>h vkfFkZd foopauk fuekZ.k gksÅ 'kdrs-
;kiwohZ dk;Zjr y?kqys[kdkaP;k olqyh R;kaps lsokfuo`Rrhps osGh dj.;kr vkY;k vkgsr- ek>h lsokfuo`Rrh ns[khy 17 efgU;koj vkyh vkgs- R;keqGs R;kp /krhZoj fo|kihB fu.kZ;kuqlkj izLrkohr olwyh ek>s lsokfuo`Rrh ykHkkrwu djkoh] ts.ks d:u eyk ek>s ekfld [kpkZps vkfFkZd fu;kstukr vMp.kh fuekZ.k gks.kkj ukghr-
32. According to the learned Counsel for the respondent- University, the above portion of the letter reproduced hereinabove is an undertaking.
33. We are unable to accept the said contention of the respondent-University, for the simple reason that the said portion of the letter is nothing but a request and in any case, it cannot be termed as an undertaking.
34. In Black's Law Dictionary eighth edition, meaning of the word 'undertaking' is as 'pledge or promise' is clear ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {16} 935-WP-4346-2017-J-
from the meaning of word 'undertaking' given in the Black's Dictionary that undertaking means a pledge or promise.
35. Thus, we have no hesitation to hold that the said letter cannot be termed as an 'undertaking' but it was a request of the petitioner firstly not to recover the amount till the decision on his representation whereby he sought exemption from applying the condition of circular dated 02.05.2005. Further, the said letter dated 19.08.2014 demonstrates that the petitioner made a request that because of his poor financial condition, if University wants to recover the amount, it should be recovered from the amount of gratuity.
36. In the said backdrop and looking to the definition of the word 'undertaking', we are of the firm view that the said letter cannot be termed as an 'undertaking'. Thus, the judgment in the case of Jag Dev Singh (supra) is not applicable to the facts of the present case, but as observed by this Court, the case of Rafi Masih (supra) will apply to the facts of the present case.
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37. We find substance in the arguments made by the learned Counsel for the petitioner that the purpose behind acquiring qualification of Marathi stenography and Marathi typing is that the employees, who are working in the State of Maharashtra but do not have knowledge of language Marathi, should learn Marathi language. Keeping in view the object behind circular of the respondent-University dated 02.05.2005, the respondent-University granted exemption from acquiring the said qualification to many employees on the ground that they were having knowledge of Marathi language.
38. If we compare the cases of those employees to whom exemption was granted and the case of the petitioner, we find that the petitioner is also similarly circumstanced with those employees to whom exemption was granted. As the petitioner borne and brought up in Maharashtra and was having knowledge of Marathi language, it was expected that the University ought to have given exemption to the petitioner from acquiring the said qualification. However, by denying the request of the petitioner to grant exemption to acquire the said qualification of Marathi stenography and ::: Uploaded on - 21/01/2020 ::: Downloaded on - 16/03/2020 15:13:10 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/02/2020 {18} 935-WP-4346-2017-J-
Marathi typing, the respondent-University has made discriminations.
39. In view of the observations made hereinabove, we have reached to the conclusion that the recovery to the tune of Rs. 3,87,798/- made by the respondent-University from the amount of gratuity of the petitioner towards excess payment made to the petitioner, is illegal and the same needs to be set aside by allowing the present petition. Accordingly, we allow the present petition and set aside the order dated 10.03.2016 in Clause B and B1.
40. Rule is made absolute in above terms with no order as to costs.
( ANIL S. KILOR ) ( PRASANNA B. VARALE )
JUDGE JUDGE
mta
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