Vaishali Patil – Jadhav, J.

1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned advocates for the parties.

2. By this petition, the petitioner challenges the action of the respondent authorities in effecting recovery of an amount of Rs.3,11,194/- from the gratuity payable to the petitioner -widow after the death of her husband-government employee, towards recovery of excess payment made to him.

3. Brief facts leading to filing of present Writ Petition are as under :-

The petitioner is the widow of one Sanjay Bhagirath Chandode, who was working as a peon in the office of Respondent no.3 - Regional Deputy Director, Groundwater Survey and Development Agency, Aurangabad Region, Aurangabad. He expired while in service on 11.03.2022, due to cardiac arrest. Pursuant to his death, a proposal for grant of pension and death gratuity was forwarded to the Accountant General, which was sanctioned vide family pension payment order dated 21.04.2023 and the petitioner was held entitled for monthly family pension of Rs.15,850/- and gratuity of Rs.8,71,750/-.

On 20.03.2023, respondent no.3 forwarded a proposal to the Accountant General stating that an excess payment of Rs.3,11,194/- had been made to the deceased employee for the period from 01.01.2006 to 11.03.2022, on account of wrong pay fixation during the service tenure of the deceased employee. Consequent thereto, recovery was initiated by the office order dated 11.05.2023 and an amount of Rs.3,11,194/- was deducted from the death gratuity amount payable to the petitioner.

Aggrieved by the recovery, the petitioner has approached this Court seeking directions to the respondent authorities to refund the recovered amount of Rs.3,11,194/-.

4. Learned Advocate Mr. Pratik K. Bhosle, appearing for the petitioner would submit that the recovery in the present case from death gratuity stands on a higher pedestal than from ordinary retirement gratuity benefits. The deduction of a substantial portion of such amount, especially when the family has lost the sole breadwinner, is harsh and arbitrary. Learned Advocate for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) etc., (2015 AIR SCW 501) contending that since the husband of the petitioner was a Class IV employee and no fault is attributable to him for the excess payment made, recovery of such amount is impermissible as it would cause more hardship to the petitioner, who is the widow of the deceased employee, while no loss would be caused to the State if the amount is refunded. Hence, applying the said ratio in the case of Rafiq Masih (supra), the petition should be allowed and prayed for refund of the recovered amount.

5. Learned Advocate for the petitioner has also placed reliance on the judgments in the case of Shaikh Amir Shaikh Kadar Vs. The State of Maharashtra and others in Writ Petition No.3320/2023 and along with connected matters, dated 23.03.2023, Smt. Sudha Bhagirath Meshram Vs. Zilla Parishad and others in Writ Petition No.4835/2021, dated 27.03.2023, Ex. Naik Bhag Chand Vs. Director General of Police, CRPF and others in Writ Petition No.4626/2019, dated 14.02.2024, Indakar S/o Gopalrao Khandekar Vs. The State of Maharashtra and others in Writ Petition No.2527 of 2023 dated 26.09.2024 and Dr. Chetna Rajput Vs. Modern Education Society, Pune and others in Writ Petition No.11027 of 2024 dated 28.03.2025.

6. Per contra, learned A.G.P. Mr. A. V. Lavte, appearing for the Respondent-State would submit that the amount has been rightly recovered from the death gratuity on account of excess payment made to the deceased employee during his service tenure. He would submit that the recovery is based on the undertakings given by the deceased employee as per clause 15.6 of the Circular dated 20.04.2009 and clause 14.6 of the Circular dated 20.02.2019, Rule 6(2) of the Maharashtra Civil Services (Revised Pay) Rules, 2019 (For short, "Rules of 2019"). Learned A.G.P. would submit that the reliance placed by the petitioner on the judgment in the case of Rafiq Masih (supra) is misplaced and distinguishable on facts. Herein, the recovery is made on the basis of the statutory undertakings and hence the case falls outside the propositions laid down in the said judgment.

Learned A.G.P. has placed reliance on the judgments in the case of High Court of Punjab & Haryana and others Vs. Jagdev Singh [(2016) 14 SCC 267], The State of Maharashtra and others Vs. Mrs. Rekha Vijay Dubey in Writ Petition No.7154 of 2019 and other connected matters, The State of Maharashtra and another Vs. Bhagwan and others in Civil Appeal Nos.7682-7684 of 2021.

7. Heard learned Advocate Mr. Pratik K. Bhosle for the petitioner and learned A.G.P. Mr. A.V. Lavte for the Respondent-State, at length. We have considered the submission canvassed by the learned advocates for respective parties.

8. In the decision in Rafiq Masih (supra), the Hon'ble Supreme Court has dealt with the issue of the right of an employer to recover the amount paid in excess to an employee without any fault on the part of the employee. The Supreme Court in paragraph no.18 of the judgment has held as under:-

                   "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:

                   (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.

                   (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."

9. The Hon'ble Supreme Court in Jagdev Singh (supra) after considering one of the propositions enumerated in the decision in the case of Rafiq Masih (supra), has held as under:-

                   "11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

                   12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."

10. In Writ Petition No. 7154/2019 and other connected matters decided on 24.09.2021 by High Court of Bombay (Coram: Dipankar Datta, CJ & M.S. Karnik, J.), while distinguishing Jagdev Singh (supra) with the facts of the case therein, the Court has made the following observations:-

                   "8. First, the undertaking given by the respondent in Jagdev Singh (supra), while opting for the revised payscale, was in pursuance of the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001. Since the respondent had submitted an undertaking under the said Rules that he would refund to the Government any amount paid to him in excess either by adjustment against future payment due or otherwise, he was held to be bound by such undertaking. Additionally, the respondent had not retired from service on superannuation but he was compulsorily retired from service. Also, the respondent being a judicial officer was not holding a Class III/Group ‘C’ post on the date he was compulsorily retired. It is in such circumstances that the Supreme Court held that the respondent was bound by the undertaking given by him and that the Government was justified in its action of seeking to recover excess payment that was made. That is not the case here. The facts here are quite dissimilar and, therefore, having regard to the settled proposition of law that a judgment is an authority for what it decides and not what can logically be deduced therefrom, we hold the decision in Jagdev Singh (supra) to be distinguishable on facts."

In the same judgment, in Para 9, while distinguishing Jagdev Singh by holding that the petitioner therein was a Class I employee and there was a statutory undertaking given, the Court has left the question open as to "whether Jagdev Singh (supra) would apply to cases of Class III/Group ‘C’ employees who by giving declaration mandated by a statutory rule, undertake to refund any sum received in excess of their entitlement.”

11. To answer the issue raised in this petition, it is apposite to consider the relevant provisions of law. The case of the petitioner is governed by Maharashtra Civil Services (Revised Pay) Rules, 2009 (for short, “Rules of 2009"), which are framed for fixation of initial pay in the revised pay structure of the 6th Pay Commission. In furtherance of these rules, the Government issued a circular dated 29.04.2009, explaining more clearly the way of operation of the provisions of the MCS (Revised Pay) Rules, 2009.

12. Clause 15.6 of the Circular dated 29.04.2009 is relevant, which is as follows:-

                   " 15.6 In the absence of pre-check there is likelihood of the arrears being wrongly calculated resulting in over-payment which might have to be recovered subsequently. The Drawing and Disbursing officers should make it clear to the Government servants under them, while crediting the arrears in Provident Fund Account that the credits are being made subject to adjustment of any amounts due from them subsequently in the light of discrepancies noticed later. For this purpose every employee will be required to give an undertaking in the proforma given in Annexure II in writing, while receiving first salary in the revised pay Structure or thereafter to the effect that any excess credit that may be found to have been made as a result of fixation of pay will be refunded by him to Government, either by adjustment against future payment or otherwise."

13. In terms of above provision, an undertaking given by the husband of the petitioner, is as follows :-

                  

14. Again, in the year 2019 the State Government came up with Rules of 2019, for fixation of pay scale for giving benefits of the 7th Pay Commission, from 2016, and with a circular dated 20.02.2019, along with a proforma of undertaking given in Annexure IV.

15. Rule 6 (2) of Rules of 2019 is applicable to the facts of the present case. Relevant rule is as follows :-

                   "6. Exercise of option.-

                   (1) The option under the proviso to rule 5 shall be exercised in writing in the form appended to these Rules as Annexure III, so as to reach the authority mentioned in sub-rule (2) within one month from the date of publication of these rules in the Official Gazette or where an existing pay structure has been revised by any amendment to these Rules within one month of the date of such order :

                   .........

                   (2) The option in the form appended to these Rules as Annexure III shall be intimated by the Government servant to the Head of his Office along-with an undertaking, in the form appended to these Rules as Annexure IV.

                   (3) If the intimation regarding option is not received within the time mentioned in sub-rule (1), the Government servant shall be deemed to have elected to be governed by the revised pay structure with effect on and from the 1st day of January 2016. In such cases, the undertaking in the form appended to these Rules as Annexure IV shall be obtained from the Government servant by Head of Office.

                   (4) ......"

16. Similarly like in the year 2009, the Government issued Circular dated 20.02.2019 laying down the procedure for operation of the provisions of Rules, 2019. Clause 14.6 of the Circular is as follows:-

                  

17. In terms of the above, the deceased husband of the petitioner has given following undertaking :-

                  

18. Here it is pertinent to note that Rules 132, 134A and 142 of MCS (Pension) Rules, 1982, provide for recovery and adjustment of excess amount paid from pensionary benefits and from death gratuity, which are reproduced below:

                   Rule 132 of the Maharashtra Civil Services (Pension) Rules, 1982 reads as under :-

                   "132. Recovery and adjustment of Government dues.

                   (1) It shall be the duty of the Head of Office to ascertain and assess Government dues, payable by a Government servant due for retirement.

                   (2) …..

                   (3) The expression ‘Government dues’ includes-

                   (a) …..

                   (b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of incometax deduction at source under the Income Tax Act, 1961 (43 of 1961).

                   Rule 134A of the Maharashtra Civil Services (Pension) Rules, 1982 reads as under :-

                   “134A. Recovery and adjustment of excess amount paid.

                   [If in the case of a Government servant, who has retired or has been allowed to retire, -

                   (i) it is found that due to any reason whatsoever an excess amount has been paid to him during the period of his service including service rendered upon re-employment after retirement, or

                   (ii) any amount is found to be payable by the pensioner during such period and which has not been paid by or recovered from him, or

                   (iii) it is found that the amount of licence fee and any other dues pertaining to Government accommodation is recoverable from him for the occupation of the Government accommodation after the retirement,

                   then the excess amount so paid, the amount so found payable or recoverable shall be recovered from the amount of pension sanctioned to him]:

                   Provided that, the Government shall give a reasonable opportunity to the pensioner to show cause as to why the amount due should not be recovered from him:

                   Provided further that, the amount found due may be recovered from the pensioner in instalments so that the amount of pension is not reduced below the minimum fixed by Government.]”

                   Rule 142 of the said Rules reads as under :-

                   "142. Adjustment of Government dues

                   (1) ...........

                   (2) Dues other than those referred to in sub-rule (1)-

                   The Head of Office shall within one month of the receipt of intimation regarding death of a Government servant, take steps to ascertain if any dues as referred to in rule 132 excluding the dues pertaining to the allotment of Government accommodation were recoverable from the deceased Government servant. Such ascertainable dues shall be recovered from the amount of (death gratuity) becoming payable to the family of the deceased Government servant."

19. The propositions (i) to (v) laid down in Rafiq Masih (supra) do not cover the situation where statutory undertaking is given by the Class III and Class IV employee. In Jagdev Singh (supra) after considering Rafiq Masih (supra) Hon’ble Supreme Court has observed that once the employee gives an undertaking while opting for revised pay scale with an understanding that any excess payment made to him will be recovered from him against the future benefits, then, the employee is bound by such an undertaking.

In the case at hand, the undertaking is a statutory undertaking, given at the time of refixation of pay of the employee i.e. in the year 2009 and in the year 2019. Rafiq Masih (supra) prohibits recovery from the amount of pension. Herein, the recovery is made from the amount of death gratuity and the monthly pension is already granted to the petitioner.

20. Respondent No. 3 deducted the excess payment made to the deceased employee from the amount of death gratuity payable to the petitioner. The deductions were made as the employee had given a statutory undertaking to that effect. The undertaking dated 12.06.2009 and of the year 2019 are statutory undertakings given under the Rules of 2009 and 2019. The deceased employee was aware and was put to notice by way of an understanding that any excess payment made will be adjusted from the future payments. As such, there is no reason to nullify the effect of the undertakings and, they would operate with all their legal effects and consequences.

21. It is thus, in view of the Rules 132, 134A and 142 that the respondents are entitled to make recovery of excess payment from the retirement benefits and from the amount of death gratuity, when it is found that due to any reason, whatsoever, excess amount has been paid to the employee during the period of his service.

22. The decisions relied upon by the petitioner will not enure to her benefit as the facts in those cases are distinguishable and, in none of the decisions statutory undertaking was in question as in the present case.

                   (i) In Ex. Bhagchand (supra), the Court held that recovery cannot be effected from the legal heirs in the absence of a statutory provision. In the present case, however, the recovery is not sought to be made from the legal heirs, but has been effected by deduction from the death gratuity payable. The said decision is, therefore, clearly distinguishable and of no assistance to the petitioner.

                   (ii) In Smt. Sudha Bhagirath Meshram (supra), the undertaking in question was not furnished under any statutory rules, but was obtained at the time of pay fixation. Moreover, the recovery therein was sought after a lapse of 16 years from pay fixation and nearly five years after the death of the employee, from the family pension payable to the widow. In such circumstances, the said decision does not support the petitioner’s case.

                   (iii) In Indakar s/o Gopalrao Khandekar (supra), the issue of a statutory undertaking did not arise for consideration. The facts being totally different, the said decision is also of no assistance to the petitioner.

                   (iv) Reliance is placed on Dr. Chetna Rajput (supra), wherein it is observed that gratuity ought to be released immediately within one month of employee's retirement, death, resignation and employee should not be made to approach the Court, is also misplaced. The said observations, in the peculiar facts of the present case, do not support the petitioner’s case.

23. Taking into consideration the MCS (Revised Pay) Rules, the circulars dated 29.04.2009 and 20.02.2019, the undertakings furnished pursuant thereto and Rules 132, 134A and 142(2), and in the light of the legal position emanating from the judgment in Jagdev Singh (supra). It thus, apparent that if an employee tenders an undertaking binding himself to refund the excess amount if he is subsequently found dis-entitled, a recovery of such amount cannot be set aside. The deductions made by the respondents to recover the excess payment made to the deceased employee from the amount of death gratuity are, in our considered view, in discharge of the statutory obligation cast upon them and, therefore, warrant no interference at the hands of this Court. When the Rules expressly provide for recovery and the employees agree to the same by way of a statutory undertaking, which uniformly applies to all employees irrespective of whether they fall in Class I, II, III or IV, and in the absence of any differentiation in the Rules or Circulars between the classes of employees, the provision operates on the fundamental principle that the law applies equally to all.

24. In view of the aforestated observations, the petition is liable to be dismissed. The writ petition is dismissed with no order as to costs.

25. Rule is discharged.

26. Pending Applications, if any, also stand disposed of.