1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6454 OF 2011 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.R.V.Naiknavare, advocate for the petitioner. Mr.B.B.Yenge, advocate for the Respondents CORAM : S.V.GANGAPURWALA,J. Date : 30.08.2011. 1. Heard. 2. The petitioner impugns the order passed by the Industrial Court, Latur, thereby allowing the complaint filed by the present Respondents. 3. The present Respondents had filed a complaint (ULP) No.7/2007, challenging the notice of recovery issued by the present petitioner in the year 2007. The present petitioner vide said notice contended that the excess amount has been paid in the year 2001-2002 to the Respondents to 2 which the Respondents were not entitled. The Industrial Court allowed the complaint restraining the present petitioner from recovering the amount as per the letter and also to make the payment if the amount is already recovered. 4. Mr.Naiknavare, learned counsel for the petitioner submits that by mistake the payment was made in the year 2001-2002 to the Respondents. The same was an excess payment. They were not entitled as per the settlement. The Respondents had already enjoyed benefit of alternate holiday and so the Respondents were not entitled for the total payment of the work done on holiday. The learned counsel submits that all these aspects have not been considered by the Industrial Court. According to the learned counsel though the payment is made by mistake, the petitioner has right to recover the same. 5. The payment which was made in the year 2001-2002 is sought to be recovered in the year 2007 i.e. after lapse of five (5) years. It is not the case of the petitioner that the excess payment was made on account of some fraud or 3 misrepresentation on the part of the Respondents. In such circumstances, the petitioner would not be entitled for any amount even it is assumed that by mistake the same excess payment was made. The Apex Court in the case of "Syed Abdul Qadir and others Vs. State of Bihar and others" reported in (2009) 3 Supreme Court Cases 475, has held that the recovery is generally prohibited by the Courts when there is no misrepresentation or fraud on employee's part and excess payment has been made by applying a wrong principle or wrong interpretation of a rule/order. 6. Mr.Naiknavare, learned counsel relying on the judgment of the Division Bench of this Court in a case of "Sadanand S/o Bhimrao Narnawre (DR.) Vs. Reserve Bank of India, Nagpur reported in 2011 (1) Mh.L.J. 207, submits that it is not a blanket rule that the petitioner would not be entitled to recover the amount paid by mistake. Relying on the said judgment, it is canvassed that in view of the principles laid down therein, the petitioner would 4 be entitled for the recovery of the excess amount paid. I have gone through the said judgment. In the said judgment, the Division Bench has deduced various propositions. According to the said judgment, the recovery should be made within a short time of error being detected, where the employee had given an undertaking to refund any excess payment. In the present case, the recovery was sought to be made after the period of limitation i.e. after five (5) years. No undertaking was given by the employee. In such circumstances, the judgment of the Apex Court in a case of "Syed Abdul Qadir and others Vs. State of Bihar and others" referred supra would squarely apply. 7. In light of the above, no case for interference is made out. As such the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.30.08.2011. asp/office/wp6454.11 5