IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.37810/2014(S-RES) BETWEEN BEL RETIRED OFFICERS ASSOCIATION REP BY ITS SECRETARY, NO.17, 1ST MAIN ROAD, 1ST BLOCK, BEL LAYOUT, VIDYARANYAPURA, BENGALURU-560 097.
(BY SRI. A. J. SRINIVASAN, ADVOCATE) AND THE CHAIRMAN AND MANAGING DIRECTOR BHARAT ELECTRONICS LIMITED, CORPORATE OFFICE : OUTER RING ROAD, NAGAVARA, BENGALURU-560 043.
(BY SRI. P. D. VISHWANATH, ADVOCATE) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ACTION OF THE RESPONDENT IN RECOVERING AMOUNTS PAID TO THE OFFICERS WHO RETIRED BETWEEN 1.4.2007 TO 31.12.2012, TOWARDS ENCASHMENT OF THEIR 'HALF PAY SICK LEAVE' AS ILLEGAL UNJUSTIFIED AND CONTRARY TO THE SICK LEAVE RULES THAT EXISTED AS ON THE DATE OF THEIR RETIREMENT AND CONSEQUENTLY DECLARE THE ACTION OF THE RESPONDENT IN ADJUSTING THE CORPUS FUND ACCUMULATED IN THE NAME OF THE OFFICERS UNDER THE BEL SUPERANNUATION [PENSION] SCHEME AND ALSO ADJUSTING THE AMOUNTS DUE TO BE PAID TO THE RETIRED OFFICERS UNDER PRP [PERFORMANCE RELATED PAY] AFTER THEIR RETIREMENT, TOWARDS ENCASHMENT OF THEIR 'HALF PAY SICK LEAVE' AND ISSUING RECOVERY NOTICES TO THE PETITIONER RETIRED OFFICERS, TO PAY THE REMAINING AMOUNT OUTSTANDING AFTER ADJUSTMENT, AS ILLEGAL UNJUSTIFIED, AS PER ANNEXURE-H AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner-association is a registered association and the officers of respondent-Bharath Electronics Limited (BEL) are members of the petitioner-association. Several members of the petitioner-association have retired from services. Those officers, who retired between 01.04.2007 to December 2012, were paid encashment of accumulated ‘Half Pay Sick Leave’ to their credit as per the existing rules, as on the date of their retirement. Subsequently, during October, 2013, the respondent management belatedly issued letters to the retired officers to recover what was paid as accumulated ‘Half Pay Sick Leave’ to their credit, on the ground that the said benefit was not available to those officers, who retired between 01.04.2007 to December, 2012. Being aggrieved, the petitioner-association is before this Court to protect the interest of those officers.
2. Learned counsel for the petitioner points out to the Office Memorandum dated 02.03.2016, issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, which was communicated to all Public Sector Undertakings clarifying the position while referring to the judgment of the Hon’ble Apex Court in the case of State of Punjab & Ors Vs Rafiq Masih (White Washer) etc, reported in CA No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012), wherein it is held that monetary benefits were given to employees in excess of their entitlement due to unintentional mistakes committed by the concerned competent authorities, in determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information/ misrepresentation/ fraud, which had led the concerned competent authorities to commit the mistake of making the higher payment to the employees. The action of the management for recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount.
3. As a consequence, all the Public Sector Undertakings were directed to deal with issue of recovery/ excess payment made to government servants in accordance with the decision of the Hon’ble Apex Court in the case of Rafiq Masih (supra). It was also directed that whenever the waiver of recovery in the above-mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department’s O.M.No.18/26/2011-East (Pay-I) dated 6th February, 2014.
4. In the light of the above, learned counsel for the petitioner-association submits that the respondent may be directed to consider the representation made by the petitioner-association and the petitioner-association may also be permitted to make additional representation, if required.
5. In the light of the above, this Court is of the opinion that the submissions made by the learned counsel for the petitioner-association requires to be accepted. The petition is accordingly disposed of granting liberty to the petitioner- association to make additional representation along with the representation at Annexure-J, to the respondent-BEL.
6. The respondent-BEL is also directed to consider the representation that has already been given by the petitioner- association along with additional representation sought to be given by the petitioner-association and pass orders in the light of the Office Memorandum dated 02.03.2016, issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, within a period of two months from the date of receipt of certified copy of this order.
7. The petitioner-association had benefit of the interim order during the pendency of the proceedings, the said benefit shall continue till the representation is considered by the respondent-BEL.
SD/- JUDGE DL