Bombay High Court
Ravindra Madhao Chaudhari Nagpur vs The Principal Director Of Audit & ... on 17 April, 2018
Equivalent citations: AIRONLINE 2018 BOM 116
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3474 OF 2004
Ravindra s/o Madhao Chaudhari,
aged about 63 years, occupation -
Nil (retired Sports Officer), r/o
Plot No. 28, Vidya Vihar, Pratap
Nagar, Nagpur. ... PETITIONER
Versus
1. The Principal Director of
Audit (Central), C-25, Audit
Bhawan, Behind I. Tax Building,
Bandra Kurla Complex, Mumbai
- 400 051.
2. Vishveshwariya National
Institute of Technology, Nagpur,
through its In-charge Director,
South Ambazari Road, Nagpur.
3. Director of Technical Education,
3, Mahapalika Marg, Maharashtra
State, Mumbai 400 001. ... RESPONDENTS
Shri Anil S. Mardikar, Senior Advocate with Shri A.G. Joshi,
Advocate for the petitioner.
Shri Amit Chutke, AGP for respondent Nos. 1 & 3.
Shri A.R. Patil, Advocate for respondent No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
APRIL 17, 2018.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Anil S. Mardikar, Senior Advocate with ::: Uploaded on - 19/04/2018 ::: Downloaded on - 20/04/2018 01:34:18 ::: wp3474.04 2 Shri A.G. Joshi, learned counsel for the petitioner, Shri Amit Chutke, learned AGP for respondent Nos. 1 and 3 and Shri A.R. Patil, learned counsel for respondent No. 2.
2. The short submission of Shri Mardikar, learned Senior Advocate is, five years after superannuation, for no fault on his part, recovery of the sum in excess of Rs.50,000/- (Rs. Fifty thousand only) was ordered by respondent No. 1 on account of wrong fixation, way back in the year 1986. He submits that this Court has protected the petitioner and hence there could not be any recovery. He points out that today, the petitioner may be above 80 years of age.
3. Shri Patil, learned counsel and the learned AGP for the respective respondents strongly oppose the petition. They submit that arrears, if any, at the time of pay fixation can be corrected and recovery can be made. They place reliance upon the judgment of the Hon'ble Apex Court in the case of High Court of Punjab and Haryana & Ors. vs. Jagdev Singh, reported at AIR 2016 SC 3523.
4. In brief reply, Shri Mardikar, learned Senior ::: Uploaded on - 19/04/2018 ::: Downloaded on - 20/04/2018 01:34:18 ::: wp3474.04 3 Advocate has invited our attention to the judgment in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors., reported at (2015) 4 SCC 334 = AIR 2015 SC 696.
5. After hearing respective counsel, we find that as per principles laid down in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors., (supra) in paragraph 18, the present recovery cannot be made as per principle No. (iii) therein. Later judgment in the case of High Court of Punjab and Haryana & Ors. vs. Jagdev Singh, (supra), looks into an undertaking given by an employee at the time of wage revision. The facts in the said judgment do not show that the employee Jagdev Singh has superannuated when recovery was ordered on 18.02.2004. It also appears that recovery was as per an undertaking given by him at the time of pay revision.
6. The Hon'ble Apex Court in paragraph 10 draws the above mentioned principles and then observed that proposition No. 2 (principle (ii) cannot apply to the case of High Court of Punjab and Haryana & Ors. vs. Jagdev Singh, (supra). That principle or proposition in Rafiq Masih does not permit ::: Uploaded on - 19/04/2018 ::: Downloaded on - 20/04/2018 01:34:18 ::: wp3474.04 4 recovery from the employees who are due to retire within one year of the order of recovery. This inference and view is adopted because of an undertaking given by him. The discussion is contained in paragraph 11 of this judgment.
7. We, therefore, find that the present matter is covered by the propositions (principles (ii) and (iii) in paragraph 18 of the judgment in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors., (supra). It is not the case of the respondents before us that any undertaking is taken from the employee/ petitioner.
8. In this situation, we quash and set aside the order of recovery dated 29.04.2004. Writ Petition is allowed and rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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