Writ Petition No. 21978 of 2022 · The High Court
Case Details
- 1 - NC: 2025:KHC:3337 WP No. 21978 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO.21978 OF 2022 (S-RES) BETWEEN: SRI. VASANTHA KUMAR B., S/O B.S.THIMMEGOWDA, AGED ABOUT 61 YEARS, RESIDING AT NO. 338, 3RD CROSS, GRUHALAKSHMI LAYOUT, NAGASANDRA POST, BANGALORE-560 073. (BY SMT. SANGEETHA, ADVOCATE FOR SRI. SRINIVASA K., ADVOCATE) …PETITIONER Digitally signed by KAVYA R Location: High Court of Karnataka AND: 1. THE GENERAL MANAGER (A & HR) BESCOM, K.R. CIRCLE, BANGALORE-560 001. 2. THE SUPERINTENDENT ENGINEER (ELE) BANGALORE NORTH CIRCLE, 3RD FLOOR, CRESCENT TOWERS, CRESCENT ROAD, NEAR MALLIGE HOSPITAL, MADHAVANAGAR, - 2 - NC: 2025:KHC:3337 WP No. 21978 of 2022 BANGALORE-560 001. 3. THE EXECUTIVE ENGINEER (ELE) BESCOM, JALAHALLI DIVISION, DEVI CIRCLE, BANGALORE-560 058.
Legal Reasoning
(BY SRI. SANJEEV B.L., ADVOCATE) …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OFFICIAL MEMORANDUM DATED 07.03.2022, ISSUED BY THE R-3 VIDE ANNEXURE-C. DIRECT THE R-3 NOT TO EFFECT ANY RECOVERY FROM OUT OF HIS TERMINAL BENEFITS AND IF SO RECOVERED, DIRECT THE R-3 TO REFUND THE ENTIRE AMOUNT OF RS.3,76,001/- ALONG WITH 12 PERCENT INTEREST PA TO BE EFFECTIVE FROM 01.04.2022 AS PER THE REPRESENTATION OF THE PETITIONER DATED 17.09.2022 VIDE ANNEXURE-E. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT - 3 - NC: 2025:KHC:3337 WP No. 21978 of 2022 ORAL ORDER The petitioner, a retired Junior Engineer (Ele) of respondent-BESCOM, is before this Court under Article 226 of the Constitution of India, questioning Annexure-C, Official Memorandum bearing No.PÁ¤E/eÁ«/¯É/¸À¯É/»¸À/21-22/77, dated 17.03.2022, wherein it is directed to deduct Rs.3,76,001/- from the earned leave encashment of the petitioner and the petitioner has also sought for release of the said amount along with interest by considering representation dated 17.09.2022 (Annexure-E). 2. Heard learned counsel Smt.Sangeetha for Sri. Srinivasa.K., learned counsel for the petitioner and learned counsel Sri. B.L.Sanjeev for respondent Nos.1 to 3. Perused
Decision
the writ petition papers. 3. Learned counsel for the petitioner would submit that the petitioner is a Junior Engineer (Ele) retired from service on attaining the age of superannuation on 31.03.2022. At the time of his retirement, the respondents settled his pensionary benefits but withheld a sum of Rs.3,76,001/-, which the petitioner was entitled towards encashment of earned - 4 - NC: 2025:KHC:3337 WP No. 21978 of 2022 leave, on account that the petitioner is due to the respondent- BESCOM. Learned counsel would submit that on enquiry it is made known that the petitioner's pay was revised under Official Memorandum dated 17.03.2022, 13 days prior to his retirement stating that during the period from February, 2003-2006 and February-2010 to March-2022, excess pay has been paid. Learned counsel would submit that no opportunity whatsoever is afforded to the petitioner or notice indicating as to why pay should not be re-fixed has been issued to the petitioner. Further, learned counsel would submit that no recovery could be affected from a retired employee or an employee who would be retiring within a period of one year in terms of the decision of the Hon'ble Apex Court in the case of State of Punjab & Ors vs. Rafiq Masih (White Washer) & Others reported in 2015 (4) SCC 334. 4. Per contra, learned counsel for the respondent- BESCOM would submit that the petitioner was paid increment which the petitioner was not entitled and thus he was paid excess pay. The said excess pay was ordered to be recovered, which according to him is in accordance with law. Further, learned counsel Sri. B.L.Sanjeev would submit that an - 5 - NC: 2025:KHC:3337 WP No. 21978 of 2022 employee who has received excess pay is liable to refund the same. Thus, he prays for dismissal of the writ petition. 5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to "Whether the recovery of sum of Rs.3,76,001/- from earned leave encashment of the petitioner on his retirement, in terms of Official Memorandum dated 17.03.2022 is legally sustainable or justifiable?". 6. Answer to the above point would be in the "Negative" and the respondents are not justified in directing recovery of sum of Rs.3,76,001/- under Official Memorandum dated 17.03.2022 (Annexure-C). 7. The petitioner, retired from service of the respondent-BESCOM as Junior Engineer (Ele) on attaining the age of superannuation on 31.03.2022. On the date of his retirement, the respondents are obliged to settle pension and pensionary benefits. The respondents under Annexure-C, Official Memorandum dated 17.03.2022, 13 days before his retirement directed recovery of Rs.3,76,001/- from earned leave encashment of the petitioner. Recovery ordered is on - 6 - NC: 2025:KHC:3337 WP No. 21978 of 2022 account that the petitioner is paid excess pay during the period from February, 2003-2006 and February-2010 to March-2022. If the petitioner had been paid excess pay during 2003-2006 and February-2010 to March, 2022, nothing prevented the respondents from taking action to recover earlier to the petitioner’s retirement or in advance. Moreover, no notice whatsoever is issued to the petitioner as to why his pay should not be re-fixed or recover shall not be effected. Further more, the respondents have not determined the amount in any enquiry by providing an opportunity to the petitioner. In the absence of notice or enquiry, the entire action of the respondents in ordering recovery is in total violation of the principles of natural justice. 8. Further, the Hon’ble Apex Court in Rafiq Masih case (supra) has made it clear that no recovery could be affected from a retired person or a person who would be retiring within one year that too belonging to Group-C and Group-D Officials. It is held that such recovery would be arbitrary and unreasonable. The relevant Paragraph No.18 of the said judgment reads as follows: - 7 - NC: 2025:KHC:3337 WP No. 21978 of 2022 "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 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." 9. This type of recovery orders by the respondents are being passed day in and out. While passing such orders no opportunity is provided nor any action is taken against such - 8 - NC: 2025:KHC:3337 WP No. 21978 of 2022 Officers or Officials for decades together. Such action leads to larger financial implication. If the Competent Authority fails to look into such incidents and if the Authority fails to take any action against such Officials or Officers who are responsible for such negligence, it calls for action against the Superior Officials. 10. A copy of this Order be forwarded to the Managing Director, KPTCL as well as General Manager (A & HR), BESCOM, K.R.Circle, Bengaluru for necessary further action. 11. In view of the above, writ petition is allowed, Annexure-C, Official Memorandum bearing No.PÁ¤E/eÁ«/¯É/¸À¯É/»¸À/21-22/77, dated 17.03.2022 is quashed. The respondents are directed to release a sum of Rs.3,76,001/- to the petitioner with admissible interest within two months from today. Sd/- (S.G.PANDIT) JUDGE SMJ List No.: 1 Sl No.: 20