Allowed

Rathnsingh Naik v. the Director (a and H R)

Karnataka HC8 Feb 2023WP/2448/2022

Case brief

AI extract

What is this about?

The petitioner, a retired BESCOM employee, challenged a memorandum directing deduction of excess amount from his pension, citing Supreme Court protections. The High Court set aside the memorandum and directed repayment of any deducted amount with interest.

What did the court decide?

Quashed of the impugned Official Memorandum dated 05.07.2021. Respondents directed to repay any amount deducted from the petitioner's pension along with interest at 6% per annum.

Rathnsingh Naik Vs the Director (a and H R) — Money Laundering | Karnataka HC (2023)

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WP No. 2448 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD

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WRIT PETITION NO. 2448 OF 2022 (S-RES)

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BETWEEN:

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RATHNSINGH NAIK S/O BHIMSING NAIK, AGED 62 YEARS, RETIRED SENIOR ASSISTANT, PRESENTLY R/AT H.NO.19, 9^TH CROSS, VINAYAKA LAYOUT, NAYANDAHALLI, BANGALORE-560 039.

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…PETITIONER

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(BY SRI. SRINIVASA K.,ADVOCATE)

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AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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THE DIRECTOR (A AND H R) KPTCL, COPRPORATE OFFICE, CAUVERI BHAVAN, BANGALORE-560 009.

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CHIEF GENERAL MANAGER (F AND C) BESCOM, CORPORATE OFFICE, K.R.CIRCLE, BENGALURU-560 001.

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SUPERINTENDENT ENGINEER (ELE) O AND M CIRCLE, BESCOM, WEST CIRCLE, 3^RD STAGE, BHIMAJYOTHI HBCS LAYOUT, BENGALURU-560 079.

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WP No. 2448 of 2022

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EXECUTIVE ENGIENER (ELEC) RAJARAJESHWARI NAGARA DIVISION, BESCOM BYTARAYANAPURA, BENGALURU-560 026.

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…RESPONDENTS

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(BY SRI. SHAMANTH NAIK.,ADVOCATE FOR R1 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OFFICIAL MEMORANDUM DATED 05.07.2021 ISSUED BY THE R-4 VIDE ANNX-D; DIRECT THE R-4 TO REFUND THE ENTIRE AMOUNT OF RS.8,09,556/- ALONG WITH INTEREST AT 12 PERCENT P.A. TO BE EFFECTIVE FROM 1.07.2021 AS PER THE REPRESENTATION OF THE PETITIONER DATED 20.07.2021 VIDE ANNX-F.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, who has retired from service with BESCOM on 30.06.2021, has called in question the Official Memorandum dated 05.07.2021 [ Annexure-D ]. The petitioner by the impugned Official Memorandum dated 05.07.2021 is informed that a sum of Rs.8,09,556/- would be deducted from his pensionary benefits as excess salary is paid to him for the period between 24.03.1999 and 13.05.1999 and 24.03.2002 and 30.06.2021. The petitioner’s

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WP No. 2448 of 2022

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case is that the respondents cannot deduct any amount from his pensionary benefits in view of the decision of the Hon’ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih (White Washer) &

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Others¹ .

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Sri K.Srinivasa, the learned counsel for the petitioner, submits that the Hon’ble Supreme Court in the aforesaid decision has declared that the recoveries cannot be deducted from the retirement benefits of either Group - C or Group -D employee, and the petitioner, who is working as Senior Assistant with BESCOM, has retired as a Group-C employee. Sri K.Srinivasa also emphasizes that the Hon’ble Supreme Court has held that if the alleged excess payment is made over a period of five years, there cannot be any recovery.

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Sri Shamanth Naik, the learned counsel for the respondents, submits that the petitioner, who

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1 (2015) 4 SCC 3314

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WP No. 2448 of 2022

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was required to submit his documents to enable the Corporation to assess his entitlement for pension and retirement benefits, has furnished the documents, and only on scrutiny of these documents it is seen that the petitioner is paid salary at a higher scale. As such, the petitioner is issued with the Official Memorandum dated 01.07.2021 informing him that excess salary paid for over period would be deducted and the petitioner has submitted his letter dated 03.07.2021 stating that if any amount is legally due, it could be recovered from his pension. It is only consequent to such response, the impugned Official Memorandum date 05.07.2021 is issued.

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In rejoinder, Sri K.Srinivasa submits that on 05.07.2021 [ the date of the impugned Official Memorandum ], the petitioner is issued with the show cause notice as to why a sum of Rs.8,09,566/should not be deducted. If the impugned Official Memorandum dated 05.07.2021 is issued in response

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WP No. 2448 of 2022

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to the petitioner’s response dated 03.07.2021, there would be no occasion to issue the show cause notice dated 05.07.2021. It is thus from the records shown that the petitioner is constrained to file his response on 03.07.2021, and if the constraint is established, the contention that the impugned Official Memorandum is issued based on the petitioner’s response dated 03.07.2021 is rendered untenable in law.

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It cannot be gainsaid that with the decision of the Hon’ble Supreme Court in State of

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Punjab & Ors. v. Rafiq Masih (White Washer) &

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Others supra , there is a clear embargo on the

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recoveries being made from the

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retirement/pensionary benefits of a Group-C or Group-D employee and with the further embargo on such recovery when it is on the ground that excess payments have been made and such payments are made for more than five years before the date of order

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WP No. 2448 of 2022

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of recovery. The petitioner must succeed on the first ground, and he must also succeed on the second ground as is obvious from the impugned Official Memorandum that the recoveries are made for the alleged excess payments for two periods commencing in 1999 and 2002.

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Further, as pointed by Sri K.Srinivasa that the arbitrariness in issuing the impugned Official Memorandum dated 05.07.2021 stands out inasmuch as on the date of the Official Memorandum, show cause notice is also issued calling upon the petitioner to show why there must not be deduction and this is notwithstanding the respondent’s case that the petitioner had filed response agreeing to deduct the amount on 03.07.2021. Furthermore, the petitioner’s response dated 03.07.2021 does not enable the respondent to avoid the embargo as aforesaid because the petitioner

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has only said that the amount that could be deducted in law could be deducted from his retirement benefits. For the foregoing, the following:

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ORDER

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[a] The petition is allowed, and the

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impugned Official Memorandum dated 05.07.2021 is quashed. Consequentially,

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the respondents are directed to repay any amount that may be deducted from the petitioner’s pension along with interest at the rate of 6% per annum.

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[b] The petitioner to avail the

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benefit of such refund with interest is reserved liberty to file a representation with the fourth respondent within two [2]

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weeks from the date of receipt of a certified copy of this order and if such representation is filed, the fourth respondent shall pass suitable orders

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WP No. 2448 of 2022

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within a period of six weeks there from to

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enable refund as aforesaid.

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SD/JUDGE

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SA ct:sr

Rathnsingh Naik v. the Director (a and H R)

Case brief

What is this about?

What did the court decide?

Rathnsingh Naik v. the Director (a and H R)

Case brief

What is this about?

What did the court decide?

What the court decided

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