1 77 wp 8935.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8935 OF 2023 Lata Pandharinath Torne and others .. Petitioners Versus The State of Maharashtra and others .. Respondents Shri Jayant S. Deshmukh, Advocate for the Petitioners. Shri S. R. Wakle, A.G.P. for the Respondent No. 1. Shri Avinash D. Aghav, Advocate for the Respondent Nos. 2 to 4. CORAM : NITIN B. SURYAWANSHI AND ABASAHEB D. SHINDE, JJ. DATE : 27TH JULY, 2026. PER COURT : . The issue raised in this petition is with regard to alleged excess payment. The Zilla Parishad has already recovered an amount of Rs. 4,67,728/- from the petitioner No. 1 – Lata Torne, Rs. 3,91,662/- from the petitioner No. 2 -Shakuntala Dighe, Rs. 3,66,541/- from the petitioner No. 3 – Shakuntala Jagtap, Rs. 6,38,746/- from the petitioner No. 4 – Jubeda Pathan and Rs. 2,95,048/- from petitioner No. 5 – Lata Karle. 2. It is the contention of the petitioners that, neither were they called upon to execute any undertaking nor were issued with any show cause notice. 3. Learned advocate for the respondent Nos. 2 to 4 2026:BHC-AUG:32572-DB 2 77 wp 8935.23 vehemently opposes the petition relying on affidavit in reply filed by the respondent Nos. 2 to 4. He has pointed out the undertakings executed by the petitioners stating that if any excess payment is found to be made as a result of incorrect fixation of pay or excess payment deducted in the light of description notices, subsequently will be refunded by them to the Government either by adjustment against future payments due to them or otherwise. Learned advocate rely upon the judgment delivered by the Hon’ble Supreme Court in “High Court of Punjab and Haryana and others vs. Jagdev Singh”, 2016 AIR (SCW) 3523. 4. Though an undertaking was executed by the petitioners on 09th February, 1999, admittedly the recoveries are made from the retiral benefits of the petitioners after a period of more than twenty (20) years. In that view of the matter, we do not agree with the submissions of the learned advocate for the respondent Nos. 2 to 4 that since the petitioners have given undertakings, the respondents are justified in recovering the amount from the retiral benefits. The respondents would have been justified to recover the amount soon after the undertakings were executed. For the inordinate delay caused by the respondents in recovering the said amount on the basis of undertakings executed more than twenty years earlier cannot be said to be just, legal and proper. 5. Apart from the above, the issue involved in this petition is squarely covered by the judgments of the Hon’ble Supreme Court in the matters of “Syed Abdul Qadir V/s State of Bihar” 2009 (3) SCC 3 77 wp 8935.23 475 and “State of Punjab and Others V/s Rafiq Masih (White Washer) and Others” 2014 (4) SCC 334. 6. Admittedly, there is no allegation against the petitioners that they have played a fraud on the employer or have orchestrated or manipulated the re-pay fixation so as to gain undue advantage. There is no allegations of any involvement of the Petitioners in the pay fixation. 7. As such, the petitioners were not in any way instrumental or involved in the process of wrongful fixation of pay. The only issue is as regards the undertakings executed by the Petitioners, by which they had assured the employer that they would refund if excess payment is found to be made to them or be adjusted against their future payments. 8. The Hon’ble Supreme Court has held in paragraph 12 in “High Court of Punjab and Haryana and others vs. Jagdev Singh” (supra), as under:- “12. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:- “(i) Recovery from employees belonging to Class- III and Class-IV service (or Group 'C' and Group 'D' service). 4 77 wp 8935.23 (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.” (emphasis supplied).” 9. The petitioners’ case is squarely covered under clause (i), (ii), (iii) and (v). The petitioners were working in class III category. The recovery is initiated after their retirement. The recovery is made when the payment made to the petitioners was in excess of five years prior to the order of recovery. After retirement, recovering an amount would be harsh and iniquitous. No doubt, the undertakings executed by the petitioners would normally bind them to repay the excess amount from future payments. However, they were paid such excess amounts from 01.10.1996 to 31.05.2020, 15.02.1997 to 31.08.2019, 09.07.1996 to 28.02.2017 and 01.07.1996 to 31.12.2022, which is a period of more than 20 years. This fact situation would be covered by 5 77 wp 8935.23 clause (iii) in paragraph 12 of the “High Court of Punjab and Haryana and others vs. Jagdev Singh” (supra). 10. In view of the above, this Petition is partly allowed. The deduction of amount from the retiral benefits of the Petitioners is held to be illegal and unsustainable. Respondent No. 2 shall repay the said amount to the Petitioners within 90 days. As the recovery was made in the light of the undertakings executed by the petitioners, bona fide by the employer, we are not granting interest to the Petitioners. However, if the amount is not paid in 90 days, the same shall carry interest at the rate of 5% p.a. after 90 days. [ABASAHEB D. SHINDE, J.] [NITIN B. SURYAWANSHI, J.] bsb/July 26