IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO.32607 OF 2018 (S-KAT) BETWEEN :
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT EDUCATION M S BUILDING, BENGALURU.
2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION MYSURU DISTRICT, MYSURU.
3. ACCOUNTANT GENERAL IN KARNATAKA(A & E) DIVISION NEW BUILDING, BENGALURU-560001.
4. THE COMMISSIONER OF PUBLIC INSTRUCTIONS NRUPATHUNGA ROAD, BENGALURU.
... PETITIONERS (BY SHRI I. TARANATH POOJARY, A.G.A.) AND :
SRI. M.L. BASAVARAJU SON OF LATE LAKKAIAH AGED ABOUT 60 YEARS, RETIRED SUBJECT INSPECTOR OFFICE OF DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS MYSURU DISTRICT, MYSURU. RESIDENT OF HOUSE NO.1183, KURUBAGERI, 2ND CROSS, LASHKAR MOHALLA, MYSURU – 570001.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.02.2017 IN APPLICATION NO.1766 OF 2012 PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, NARENDRA PRASAD J., PASSED THE FOLLOWING:
ORDER This writ petition is directed against order dated 27.02.2017 passed by the Karnataka State Administrative Tribunal, (hereinafter referred to as the ‘Tribunal’ for the sake of brevity) Bengaluru, in Application No.1766 of 2012, whereby the Tribunal has allowed the Application filed by respondent herein.
2. Briefly stated, the facts are that, respondent has joined the service as Assistant Teacher on 11.08.1982 and retired from services on attaining the age of superannuation on 31.01.2011. In the context of his retirement, Accountant General, third petitioner on scrutiny of respondent’s past service details had observed in letter dated 08.07.2011 that respondent’s pay with effect from 01.08.1998 should have been paid at Rs.6,600/- p.m. in pay scale of Rs.5575–10620 instead of Rs.6,750/- per month, as fixed by the Department. Thereupon, the department re-fixed his pay vide memorandum dated 04.08.2011 at Rs.6,600/- p.m. with effect from 01.08.1998. Based on that, the pay entitlement on subsequent promotion / revision of pay also got modified downwards. This lead to some payments made earlier being treated as excess payments and by impugned letter dated 04.08.2011 of the second respondent before the Tribunal, the department ordered recovery of excess payment of Rs.34,794/-. Being aggrieved by the same, the respondent herein approached the Tribunal in Application No.1766 of 2012 seeking to quash the impugned letter dated 4.8.2011 and to issue directions to petitioners to release his pay and pensionary any benefits correctly.
3. The Tribunal, following the judgment passed by this Court in W.P.No.32318/2015 dated 13.12.2016 allowed the application filed by the respondent herein. Being aggrieved by the same, the State has filed this writ petition.
4. We have heard Sri I.Taranath Poojary, learned Additional Government Advocate appearing for the petitioners and perused the writ papers.
5. The respondent joined service as Assistant Teacher and retired from service on superannuation on 31.01.2011. The Accountant General, while scrutinizing respondent’s past service details observed that respondent’s pay with effect from 01.08.1998 had been fixed at Rs.6,750/- per month instead of Rs.6,600/- per month in the pay scale of Rs.5575-10620. By order dated 04.08.2011 the Department re-fixed his pay at Rs.6,600/- per month. It also issued an order on 04.08.2011 for recovery of excess payment of Rs.34,794/-. The Tribunal, following the order dated 13.12.2016 passed by this Court in W.P.No.32318/2015 has allowed the application.
6. At this stage, we may usefully refer to the decision of the Hon’ble Apex Court in the case of State of Punjab and others v. Rafiq Masih (White washer) and others, reported in (2015)4 SCC 334, and more particularly, the concluding observations at para 18 of the aforesaid decision, which reads as under :
“18. It is not possible to postulate all situation 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 the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.”
7. It is very clear from above Apex Court Judgment that recovery from a retired employee, who are to retire within one year or the recovery of the excess payment for period in excess of five years, is impermissible.
8. In the case on hand, the respondent retired on 31.01.2011; the amount which is ordered to be recovered relates to the year 1998 and also the order for recovery has been passed on 08.07.2011 after the respondent has retired from service.
9. Hence, the impugned order dated 08.07.2011 is in violation of clauses (ii) and (iii) of paragraph 18 in the above said judgment. Therefore, the impugned order passed by the Tribunal cannot be said to be erroneous. Hence, we decline to interfere with the order passed by the Tribunal. Accordingly, writ petition is dismissed.
Sd/- JUDGE hnm Sd/- JUDGE