Bombay High Court
ABDUL HAMID LATIF SHAIKHversusTHE STATE OF MAHARASHTRA THR THE GOVERNMENT PLEADER AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The recovery of Rs.1,04,603 from the petitioner cannot be sustained and the petition is allowed, directing a refund.
Summary
The petitioner, a retired Class‑III police employee, was directed by the Commissioner of Police to deposit Rs.1,04,603 on the ground that it was an excess payment under the Sixth Pay Commission revision. He deposited the amount shortly before his retirement and filed a writ petition under Article 226 seeking a refund, contending that the excess was due to an administrative error and that recovery from a retiring employee is impermissible. The respondents argued that the recovery was justified as the pay fixation was incorrect. The Court held that the petitioner, having no role in fixing his salary and having relied on the revised scale, could not be penalised, especially as the recovery was ordered just days before retirement, making it arbitrary and harsh. Relying on the Supreme Court’s guidelines in State of Punjab v. Rafiq Masih and earlier decisions of the Aurangabad Bench, the Court set aside the recovery and directed the respondents to refund the amount, with interest if not paid within six weeks.
Issues considered
- Whether the recovery of excess salary from a retiring Class‑III employee is lawful under the guidelines laid down by the Supreme Court.
- Whether the excess payment was attributable to an administrative error and thus non‑recoverable.
- Whether the petitioner is entitled to a refund without interest for the period between the recovery and the order.
Subjects
- excess salary recovery
- Class‑III employee
- retirement
- mandamus
- Article 226
- Sixth Pay Commission
- unjust enrichment
- administrative error
Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15847 OF 2023
Abdul Hamid Latif Shaikh, ]
R/o. Kalamboli ] .. Petitioner
Versus
1. The State of Maharashtra, ]
Through the Government Pleader ]
2. Director General of Police, ]
Maharashtra State ]
3. Inspector General of Police (Administration), ]
Director General of Police, Mumbai ]
4. The Commissioner of Police, Mumbai ]
5. Principal Accountant General (A & E), ]
Mumbai ] .. Respondents
Mr. G.B. Naik, i/by Mr. Imtiyaz Patel, Advocates for the Petitioner.
Ms. Rupali Shinde, Assistant Government Pleader for the Respondents.
CORAM : M.S. KARNIK & GAUTAM A. ANKHAD, JJ.
DATE : 20TH FEBRUARY 2026.
PER GAUTAM A. ANKHAD, J.
1. The Petitioner who was employed in the Maharashtra Police, retired
on 9th September 2015 as a Class-III employee, holding a post of Assistant
Sub-Inspector. On 31st August 2015, a few weeks prior to his retirement,
Respondent no. 4 directed the Petitioner to deposit a sum of Rs.1,04,603/-
on the ground that the same had been paid in excess of his entitlement. As
the Petitioner was on due to retire on 9 th September 2015, he deposited the
1/4
15-WP-15847-2023.doc Dixit
said amount with the State Treasury. The present Petition has been filed
seeking refund of the aforesaid sum, on the ground that the recovery was
illegal and unjustified.
2. Mr. Naik, learned counsel appearing for the Petitioner submitted that
the Sixth Pay Commission was implemented with effect from 1 st January
2006, pursuant to which the pay scale of the Police Head Constable was
revised from Rs.9,300/- to Rs.9,680/-. He contended that at the time of such
revision and fixation of pay, the Petitioner was neither informed that the
fixation was provisional nor that it was subject to any conditions. The
Petitioner continued to receive salary as per the revised pay scale after due
verification by the Respondents. Thus the Petitioner cannot be penalized
and reliance was placed on the several orders of this Court in similar
situations including order dated 12th February 2018 in Writ Petition No.695
of 2016 and order dated 18th July 2017 in Writ Petition No.5367 of 2016, as
well as on the decision of the Hon’ble Supreme Court in State of Punjab &
Ors. v. Rafiq Masih (White Washer) (2015) 4 SCC 334, wherein recoveries
is held to be impermissible and refund was directed.
3. Ms. Shinde, the learned AGP Government Pleader opposed the
petition and submitted that the recovery was effected on account of
incorrect pay fixation and that the Respondents were within their rights to
recover the excess amount paid to the Petitioner.
2/4
15-WP-15847-2023.doc Dixit
4. We have heard the learned counsels for the parties and perused the
record. The Petitioner, being a Class-III employee, had no role in
determining or verifying the correctness of his pay fixation and had
legitimately arranged his affairs on the basis of the salary paid to him over
the years. It is also not the case of the Respondents that the Petitioner had
misrepresented any facts. The excess payment, if any, was the result of a
decision attributable solely to the Respondents. It is also significant that the
recovery was directed and effected just days prior to the Petitioner’s
retirement. In such circumstances, directing recovery on the verge of
retirement results in undue hardship and would be manifestly arbitrary. The
Hon’ble Supreme Court in State of Punjab v. Rafiq Masih laid down
guidelines in respect of recovery of amount from the employee and has
enumerated situations whereunder it is impermissible in law to recover the
amounts. The relevant portion is reproduced as under:
“(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 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.
3/4
15-WP-15847-2023.doc Dixit
(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.”
5. In view of the aforesaid facts and the settled position of law, the
recovery of Rs.1,04,603/- from the Petitioner cannot be sustained and is
liable to be set aside. Accordingly, Writ Petition No.15847 of 2023 is
allowed in terms of prayer clause (a), which reads thus:
“(a) This Hon’ble Court be pleased to issue a writ of mandamus
or a writ in the nature of mandamus or a writ, order or
direction under Article 226 of the Constitution of India
directing the respondents to forthwith refund to the
petitioner illegally recovered amounts in accordance with
the judgments of the Aurangabad Bench of this Hon’ble
Court in Writ Petition no.695 of 2016.”
6. We accept the statement made by Mr. Naik, learned counsel for the
Petitioner, that the Petitioner shall not claim interest on the aforesaid
amount for the period between 9th February 2015 and 11th September 2023.
We however clarify that if the aforesaid amount is not refunded within a
period of six weeks from today, the Respondents shall refund the sum of
Rs.1,04,603/- to the Petitioner along with interest at the rate of 6% per
annum from the date of filing of the petition i.e. 11 th September 2023 till
realization.
[ GAUTAM A. ANKHAD, J. ] [ M.S. KARNIK, J. ]
Digitally
signed by 4/4
SNEHA SNEHA
ABHAY Date:
ABHAY DIXIT 15-WP-15847-2023.doc Dixit
DIXIT 2026.02.24
10:23:52
+0530
Checking your session…