Dismissed

Assistant Director v. Shri. Maruti S/O Dasharath Bhosale

Karnataka HC5 Jun 2024WA/100107/2024

Case brief

AI extract

What is this about?

Writ appeal filed by State authorities against Writ Court order quashing a post-retirement recovery order of Rs.1,32,465/- directing release of withheld terminal benefits. Court dismissed appeal citing lack of notice and impermissibility of recovery after retirement.

What did the court decide?

Writ appeal dismissed; recovery order set aside by lower court remains in force.

Assistant Director Vs Shri. Maruti S/O… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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WRIT APPEAL NO.100107 OF 2024 (S-RES)

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BETWEEN:

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THE ASSISTANT DIRECTOR, PENSION, SMALL SAVINGS AND PROPERTY ENCUMBRANCE, MAINTANANCE DEPARTMENT, DHARWAD-580001.

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…APPELLANT

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(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)

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AND:

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SHRI MARUTI S/O DASHARATH BHOSALE, AGE. 62 YEARS, OCC. RETIRED MARKET INSPECTOR, RESIDING AT NO.46, FAKIR GALLI, MANAKILLA, DHARWAD-580001.

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K M SOMASHEKAR Digitally signed by K MSOMASHEKAR Location: High Court ofKarnataka Dharwad BenchDate: 2024.06.12 10:47:31+0530

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THE HUBBALLI DHARWAD MUNICIPAL CORPORATION, R/BY ITS COMMISSIONER, HUBBALLI-24, DISRICT DHARWAD.

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THE ASSISTANT COMMISSIONER, ZONAL OFFICE NO.10, HUBBALLI DHARWAD MUNICIPAL CORPORATION, HUBBALLI- 24, DISTRICT DHARWAD.

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…RESPONDENTS

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THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.103882/2023 (S-RES) DATED. 20.09.2023 & ETC.,

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NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This intra-court appeal by the State authorities, under Section 4 of the Karnataka High Court Act, 1961, is directed against the order dated 20.09.2023 passed in W.P. No.103882/2023, whereby the learned Single Judge has quashed the order dated 02.11.2022 directing recovery of an amount of Rs.1,32,465/- withheld out of the terminal benefits of respondent No.1-petitioner.

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Heard Sri. G.K.Hiregoudar, learned

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Government Advocate for the appellant, and perused the writ appeal papers.

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The parties herein would be referred to as they stood before the Writ Court. Respondent No.1 herein was the petitioner, and the appellant herein was respondent No.3 before the learned Single Judge.

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Petitioner was appointed as a Sepoy on 04.06.1983 in respondent No.1-Hubballi Dharwad

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3 - NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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Municipal Corporation. Petitioner retired from service on 30.06.2022 on attaining the age of superannuation. Subsequent to his superannuation, by order dated 02.11.2022, respondent No.2 directed recovery of a sum of Rs.1,32,465/- stating that the petitioner has been paid excess by wrong fixation of pay. Challenging the said order, the petitioner was before this Court in W.P. No.103882/2023. This Court by order dated 20.09.2023 impugned herein, quashed the order of recovery and directed the respondents to release the withheld terminal benefits to the petitioner. Aggrieved by the same, respondent No.1 is in appeal before this Court.

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Learned Government Advocate would contend

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that the petitioner was paid excess amount of Rs.1,32,465/- which he was not entitled to, and since the petitioner was paid excess amount on wrong fixation, the authorities rightly ordered recovery of the said amount under order dated 02.11.2022. It is submitted that, a person, who is not entitled to certain benefit, on availing

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4 - NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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the same, cannot resist recovery. Further, learned Government Advocate would submit that there was no proper opportunity provided before the learned Single Judge to defend their action. Thus, he prays for allowing the appeal.

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Having heard the learned Government

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Advocate as well as on perusal of the writ appeal papers, the only point which falls for consideration is,

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Whether the appellant has made out any

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ground for admitting the appeal?

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The answer to the above point would be in the

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negative for the following reasons:

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(a) It is an admitted fact that the petitioner retired from service on 30.06.2022, on attaining the age of superannuation. Subsequent to his retirement, by order dated 02.11.2022, the respondent-authorities passed recovery order directing recovery of sum of Rs.1,32,465/- from out of the terminal benefits of the petitioner. No opportunity whatsoever appears to

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5 - NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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have been provided to the petitioner before passing the order of recovery dated 02.11.2022. A recovery order without notice would result in civil consequences and as such, the concerned authorities are required to provide an opportunity to the person against whom such order is to be passed. The Hon’ble Apex Court in the case of Bhagwan Shukla Vs. Union of India and Others¹ , at paragraph 3, has observed as follows:

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“3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs.190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181 p.m. from Rs.190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has

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1 (1994)6 SCC 154)

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been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs.190 to Rs.181 w.e.f. 18-12-1970.

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(b) The petitioner is a Group-D employee of respondent No.1-Corporation. Till his retirement, no recovery order was passed. The recovery order dated 02.11.2022 is subsequent to the retirement of the petitioner. The Hon’ble Apex Court in the case of

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7 - NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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State of Punjab Vs. Rafiq Masih² , has made it clear

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that recovery from a Group-‘D’ employee, who is retiring within one year or who has retired, would be iniquitous and impermissible.

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(c) The learned Single Judge under the impugned order, at paragraph 9, has rightly observed that refixation of date of increment has taken place 40 years after the fixation, for no fault of the petitioner, the refixation could result in variance in pension. On the ground of delay, the learned Single Judge has observed that refixation also cannot be permitted. Learned Single Judge has rightly placed reliance on Rafiq Mashi’s case (supra) while coming to the conclusion that such recovery, on the face of it, is arbitrary, illegal, and high-handed on the part of respondent No.1.

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2 (2015)4 SCC 334

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NC: 2024:KHC-D:7444-DB WA No.100107 of 2024

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We do not find any ground to interfere with the impugned order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.

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All pending interlocutory applications are disposed of as not surviving for consideration.

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Sd/JUDGE

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Sd/JUDGE

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KMS, CT:VP LIST NO.: 1 SL NO.: 6

Assistant Director v. Shri. Maruti S/O Dasharath Bhosale

Case brief

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Assistant Director v. Shri. Maruti S/O Dasharath Bhosale

Case brief

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