1 O.A. No.

953/2023

MAHARASHTRA ADMINISTRATIVE TRIBUNAL MUMBAI,

BENCH AT AURANGABAD

ORIGINAL APPLICATION NO. 953 OF 2023

DISTRICT : AURANGABAD
Iliyas Khan Samsher Khan Pathan, )
Age : 64 years, Occu. : Retired as A.S.I. from )
Traffic Branch, Badge No. 4282, )
Chhawani Division, Aurangabad. )
R/o. Plot No. 58/89, Power House Road, )
Ansar Colony, Padegaon, Aurangabad, )
Dist. Aurangabad. )
…. APPLICANT
V E R S US
1. The State of Maharashtra, )
Through Secretary, )
Home Department, )
Mantralaya, Mumbai-32. )

2. The Director General of Police, )

Maharashtra State, Shahid Bhagatsingh)
Marg, Coloba, Mumbai-39. )

3. The Commissioner of Police, )

Office at Mill Corner, Dr. Babasaheb )
Ambedkar Road, Chatrapati Sambhaji )
Nagar, Dist. Chatrapati Sambhaji Nagar)
(Aurangabad) 431001. )
… RESPONDENTS
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APPEARANCE : Shri V.G. Pingle, Counsel for Applicant.

: Shri I.S. Thorat, Presenting Officer for

respondent authorities.
-----------------------------------------------------------------------------------------
CORAM : Hon’ble Justice Shri V.K. Jadhav, Member (J)

DATE : 22.02.2024
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 2 O.A. No. 953/2023

ORAL-ORDER

1. Heard Shri V.G. Pingle, learned counsel appearing for

the applicant and Shri I.S. Thorat, learned Presenting Officer

appearing for respondent authorities.

2. The present Original Application heard finally with

the consent of both the parties at the admission stage.

3. Leave to insert the total amount recovered in para No.

(VIII) (B) of the prayer clause.

4. By filing the present Original Application, the

applicant is seeking direction to respondent authorities to refund

the deducted amount of Rs. 1,23,931/- from installment of 7th

Pay Commissioner arrears after his retirement on 30.06.2019

under the gab of excess payment made to him.

5. Learned counsel for the applicant submits that

initially the applicant was appointed as Police Constable on

16.02.1987 and thereafter time to time he came to be promoted

and lastly on 26.02.2010 he was promoted as A.S.I. He retired on

attaining the age of superannuation on 30.06.2019. After

retirement, his pension papers were forwarded to the Accountant

General, Nagpur for sanction of pension and accordingly, he

 3 O.A. No. 953/2023

started getting monthly pension from July, 2019 onwards. After

lockdown of Covid-19 pandemic, the applicant came to know

from the co-employees that they are receiving more amount of

pension and they are also receiving the more amounts of

installments of 7th Pay Commission arrears. Thus, the applicant

has submitted representation dated 23.08.2022 to the

respondent No. 3 to verify his service book and issue appropriate

order for payment of correct amount. The applicant has again

and again submitted representations, however, the respondent

No. 3 authority neither considered the representations made by

the applicant nor communicated anything to the applicant to

that effect. Thus, the applicant was constrained to sought

information by submitting application dated 09.08.2023 under

the Right to Information Act. He provided with information after

by issuing order dated 22.04.2019 stated therein that the pay

fixation of the applicant was revised and excess payment is made

to him. The applicant further came to know that the applicant

has been granted total amount of Rs. 2,26,572/- towards the

arrears of 7th Pay Commission from 01.01.2016 to 31.12.2018

receivable by the applicant in five equal installments of Rs.

45,286/- each. However, the applicant has received amount of

 4 O.A. No. 953/2023

Rs. 20,529/- each installment due to the order 22.04.2019,

thought the applicant was not at fault.

6. Learned counsel for the applicant submits that the

applicant was class-III employee at the time of his retirement and

he was not responsible in any manner for wrong pay fixation, if

any. The said amount allegedly paid in excess to the applicant for

the period of 01.01.2006 to 01.07.2018. After his retirement, the

said amount has been recovered from the arrears of 7th Pay

Commission.

7. Learned counsel for the applicant submits that the

ratio laid down by the Hon’ble Apex Court in the case of State of

Punjab and others Etc. Vs. Rafiq Masih (White Washer) Etc. in

Civil Appeal No. 11527/2014 (arising out of SLP (C) No. 11684 of

2012), dated 18.12.2014 is squarely applicable to the facts and

circumstances of the present case. Learned counsel submits

that though the applicant allegedly given the undertaking and

copy of the undertaking annexed to the affidavit in reply,

however, the said undertaking does not bear any date and place

and it seems to have been obtained at the time of retirement.

Learned counsel submits that the present Original Application

 5 O.A. No. 953/2023

deserves to be allowed and the respondents are liable to refund

the said recovered amount.

8. Learned Presenting Officer submits that the

respondent No. 3 by order dated 22.04.2019 corrected the pay

fixation of the applicant for the period of 01.01.2006 to

01.07.2018 and on the basis of said corrected pay fixation, an

amount of Rs. 1,23,931/- came to be recovered from the arrears

of 7th Pay Commission of the applicant. Thereafter, the Pay

Verification Unit approved the pay fixation on 16.10.2019.

Learned P.O. submits that the applicant has given undertaking

to the office of respondent No. 3 in terms of G.R. dated

30.01.2019 and it is specifically stated in the said undertaking

that if any excess amount is paid, then the applicant would be

returned the aforesaid amount. Learned P.O. submits the ratio

laid down by the Hon’ble Apex Court in the case of State of

Punjab and others Etc. Vs. Rafiq Masih (White Washer) Etc. (cited

supra) is not applicable to the facts and circumstances of the

present case. Learned P.O. submits that there is no substance in

the present Original Application and the same is liable to be

dismissed.

9. In view of the ration laid down by the Hon’ble Apex

Court in a case State of Punjab and Others Vs. Rafiq Masih (White
 6 O.A. No. 953/2023

Washer) etc., (2015) 4 Supreme Court Cases 334, the recovery

from class-III and class-IV employees after their retirement is

impermissible on certain conditions. The Hon’ble Apex Court in

para No. 18 has made the following observations :-

“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 herein above, we may, as a
ready reference, summarize the following few situations,
wherein recoveries by the employers, would be impermissible
in law:

(i) Recovery from employees belonging to Class-III

and Class-IV service (or Group ‘C’ and Group ‘D’
service).

(ii) Recovery from retired employees, or 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 employees,
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.”

The case of the applicant is fully covered under the clause

Nos. (i), (ii) and (iii).

 7 O.A. No. 953/2023

10. The applicant belongs to Class-III category employee.

The said recovery has been done after his retirement. It is also

clear from the pleadings that the excess payment has been made

on account of wrong fixation of pay for the period of 01.01.2006

to 01.07.2018 and thus the period is in excess of five years

before the order of recovery is issued. It is also not disputed that

neither the applicant is responsible for the said wrong pay

fixation nor he has mislead the respondent authorities at any

point of time in this regard.

11. The Hon’ble High Court of Bombay, Bench at

Aurangabad in W.P. No. 14296/2023 (Gautam Sakharam Mairale

Vs. State of Maharashtra and Ors.) and other connected matters

in para Nos. 5 and 6 has made the following observations :-

“5. In some cases, at the stroke of retirement, a condition was

imposed that they should execute an undertaking and it is in
these circumstances that an undertaking has been extracted. The
learned Advocate representing the Zilla Parishad as well as the
learned [Link]., submit that, once an undertaking is executed, the
case of the Petitioners would be covered by the law laid down by
the Hon’ble Supreme Court in the case of High Court of Punjab
and Haryana and others vs. Jagdev Singh, 2016 AIR (SCW)
3523. Reliance is placed on the judgment delivered by this Court
on 1.9.2021, in Writ Petition No. 13262 of 2018 filed by
Ananda Vikram Baviskar Vs. State of Maharashtra and
others.
 8 O.A. No. 953/2023

6. We have referred to the law laid down by the Hon’ble

Supreme Court in High Court of Punjab and Haryana and
others vs. Jagdev Singh (supra). The record reveals that no
undertaking was taken from these Petitioners when the pay
scales were revised. An undertaking from some of them was
taken at the stroke of their retirement. An undertaking has to be
taken from the candidate when the revised pay scale is made
applicable to him and the payment of such pay scale commences.
At the stroke of superannuation of the said employee, asking him
to tender an undertaking, practically amounts to an afterthought
on the part of the employer and a mode of compelling the
candidate to execute an undertaking since they are apprehensive
that their retiral benefits would not be released until such
undertaking is executed. Such an undertaking will not have the
same sanctity as that of an undertaking executed when the
payment of revised pay scale had commenced. We, therefore,
respectfully conclude that the view taken in High Court of
Punjab and Haryana and others vs. Jagdev Singh (supra)
would not be applicable to the case of these Petitioners, more so
since the recovery is initiated after their superannuation.”

12. So far as the issue of undertaking is concerned, the

said undertaking seems to have been taken after retirement of

the applicant and further the said undertaking (Annexure R-2)

does not bear any place and date. It is also not clear as to whom

the said undertaking has been submitted. It seems that the said

undertaking has been taken after retirement merely to comply

with the G.R. dated 30.01.2019. Thus no importance can be

 9 O.A. No. 953/2023

given to the said undertaking. In the result, the present Original

Application deserves to be allowed and the applicant is entitled

for refund of the said recovered amount with interest.

13. So far as grant of interest is concerned, learned

Presenting Officer submits that there is no specific prayer in the

Original Application to that effect. However, the Hon’ble Apex

Court way back in the year 2014 has expressed that the recovery

from the retired employees or employees who due to retired

within a period of one year of the order of recovery, is

impermissible. Even though, after retirement of the applicant,

the respondent authorities have deducted the said amount from

the arrears being paid to the applicant towards the arrears of 7th

Pay Commission. In view of above, even if there is no specific

prayer regarding the interest on recovered amount, this Tribunal

can exercise discretion in such type of cases. Hence, the

following order :-

ORDER

(i) The Original Application is hereby allowed.

(ii) The respondents are hereby directed to refund the amount

of Rs. 1,23,931/- to the applicant within a period of three

months from the date of this order with interest @ 9% p.a.

 10 O.A. No. 953/2023

from the last date of installment recovered from the

applicant till its realization of amount.

(iii) In the circumstances, there shall be no order as to costs.

(vi) The Original Application accordingly disposed of.

PLACE : Aurangabad. (Justice V.K. Jadhav)

DATE : 22.02.2024 Member (J)

KPB S.B. O.A. No. 953 of 2023 VKJ Recovery/ refund of recovered amount