1 WP 7730.2008 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7730 OF 2008 1. Bhau S/o Hari Jadhav Age : 68 Yrs., Occ. Pensioner, R/o : Rajeshwar Colony, Rahuri (Kd.), Tq. Rahuri, Dist. : Ahmednagar. 2. Asaram S/o Vithal Alavane Age : 59 Yrs., Occ. Pensioner, R/o : Rajeshwar Colony, Rahuri (Kd.), Tq. Rahuri, Dist. : Ahmednagar. 3. Krishna S/o Madhav Kodilkar Age : 57 Yrs., Occ. Service, R/o : Near Ganesh Mangal Karyalaya, New Sangwi, Pune – 27. 4. Bhausaheb S/o Namdeo Chavan (Deceased) – through Legal representative : 4-A. Smt. Pushpalata Bhausaheb Chavan Age : 63 Yrs., Occ. Household, R/o : Mitra Pariwar Colony, Rahuri (Kd.), Tq. Rahuri, Dist. : Ahmednagar. 5. Sunil S/o Gulab Gurav (Shinde) Age : 35 Yrs., Occ. Service, 2 WP 7730.2008 - [ J ] R/o : Plot No. 11-A, Behind Market Yard, Dhule, Dist. Dhule. .... PETITIONERS V E R S U S Mahatma Phule Krishi Vidyapeeth Rahuri, at & Post. Rahuri, Tq. Rahuri, Dist. : Ahmednagar Through its Registrar. .... RESPONDENT Mr. V.D.Hon, Advocate for the Petitioners. Mr. M.N.Navandar, Advocate for Respondent. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 13/07/2011 JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The present petitioners had filed Complaint (ULP) No. 83 of 1999 against the respondent contending that the respondent has committed 3 WP 7730.2008 - [ J ] unfair labour practice within the meaning of Section 28 read with Item Nos. 5,9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. 4. It is the case of the petitioners that they were appointed as Mistri in the year 1970-71 on daily wages establishment or work charged establishment and their services were regularized from 1/10/1983. The Pay Scale of the petitioners was fixed by the respondents in the range of Rs. 115 – 250/-, but subsequently the said Pay scale is reduced unilaterally. The respondent threatened to deduct the amount which was already paid to the petitioners on the basis of previous Pay Scale. Aggrieved thereby, the petitioners filed Complaint (ULP) No. 83 of 1999. The Member, Industrial Court, Ahmednagar dismissed the Complaint. Aggrieved thereby the petitioners have filed the present Writ Petition. 5. I have heard Mr. Hon, the learned counsel for the petitioners and Mr. Navandar, the learned counsel for the respondent. 6. The issue that the service rendered by the petitioners prior to 1983 i.e. prior to their appointment on regular basis, is required to be considered for pensionary benefits, is no longer res integra in view of the Judgment of the Division Bench of this Court dated 21/9/2010 in Writ 4 WP 7730.2008 - [ J ] Petition No. 2016 of 2010, which was against the present respondent and filed by the persons, who were similarly situated i.e. working as Mistri. The Division Bench of this Court held that services of the workmen rendered on work charge basis prior to regular appointment on 29/10/1983 shall be calculated half for calculating the pensionary service of the petitioners. 7. Further, on account of excess payment made due to fixation of wrong Pay Scale, the deductions or recovery can not be made, is also no longer res integra in view of the Judgment of the Apex Court in a case of Syed Abdul Qadir and Ors. V/s State of Bihar and Ors. Reported in 2009 AIR SCW – 1871. In the present case, the said wrong fixation of Pay Scale is not on account of any fraud or mis-representation on the part of the petitioners, but the same was pursuant to the orders passed by the competent authority and simply because audit objection was raised, the said Pay Scale was reduced. That would not entitle the respondent to make recovery of the amount already paid in view of the Judgment of the Apex Court in a case of Syed Abdul Qadir referred supra. 8. In the result, the impugned order is quashed and set aside. It is held that the services rendered by the petitioners on work charge basis prior to regular appointment in October, 1983 shall be calculated half for 5 WP 7730.2008 - [ J ] calculating the pensionary service of the petitioners and further the respondent is restrained from making any deductions on account of the amount paid to the petitioners prior to reduction of the Pay Scale and if the amount is recovered by the respondent, the same shall be refunded back to the petitioners within the period of three ( 3 ) months from today. 9. Rule made absolute in above terms , however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 7730.2008 - [ J ]