Allowed

Sri. K.M Siddaiah v. the State of Karnataka

Karnataka HC30 Aug 2024WP/11063/2022

Case brief

AI extract

What is this about?

A retired Superintendent challenged a Karnataka Administrative Tribunal order permitting recovery of Rs.1,24,841/- as excess HRA and CCA drawn while on deputation to Mysuru. Holding recovery after retirement from a Group-C employee without prior notice impermissible per Rafiq Masih, the Court set aside the Tribunal order and quashed the Official Memorandum.

What did the court decide?

Tribunal order set aside, recovery OM quashed; respondents directed to release withheld leave encashment with admissible interest within three months.

Sri. K.M Siddaiah Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 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 C.M. POONACHA WRIT PETITION NO.11063 OF 2022 (S-KSAT)

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BETWEEN:

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SRI. K.M SIDDAIAH S/O LATE MANCHA SHETTY K, AGED ABOUT 63 YEARS, RETD. SUPERINTENDENT (ADMN) OFFICE OF THE DEPUTY DIRECTOR OF LAND RECORDS, CITY SURVEY, BENGALURU, R/AT NO.453, BHEEMA ROAD, VIDHYASHANKAR LAYOUT, SATHAGALLI SHAKTHINAGAR POST, MYSURU-570029.

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…PETITIONER

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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(BY SRI. SRINIVAS.V, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BENGALURU-560001.

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THE COMMISSIONER, SURVEY SETTLEMENT AND LAND RECORDS, K.R.CIRCLE, BENGALURU-560001.

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NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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THE DEPUTY DIRECTOR OF LAND RECORDS CITY SURVEY, BENGALURU-560001.

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…RESPONDENTS

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(BY SRI. C.N.MAHADESWARAN, AGA)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OF LIKE NATURE AND QUASH THE ORDER PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL AT BANGALORE IN APPLICATION NO.4147 AND 4284/2020 ON 14/09/2021 VIDE AT ANNEXUREA TO THE WRIT PETITION AND ALLOW THE APPLICATION FILED BY THE PETITIONER AND CONSEQUENTLY QUASH THE O.M. BEARING REF.NO.KA.A.SAM 02/2020-21 DATED 15/06/2020 ISSUED BY THE RESPONDENT NO.3, WHICH WAS MARKED AS ANNEXURE-A4 TO THE APPLICATION AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE C.M. POONACHA

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3 - NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE S.G.PANDIT)

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The petitioner, a retired Superintendent in the

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Department of Survey Settlement and Land Records, is before this Court questioning the correctness and legality of the order dated 14.9.2021 passed by the Karnataka State Administrative Tribunal, Bengaluru (for short 'Tribunal') in Application Nos.4147 and 4284/2020 and to quash the Official Memorandum dated 15.06.2020 (Annexure-A4) wherein it was ordered to recover a sum of Rs.1,24,841/- from the petitioner stating that when he was on deputation to Mysuru, he has drawn HRA and CCA applicable to Bengaluru City.

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Brief facts of the case which leads to filing of the present petition are that the petitioner was working as Superintendent (Administration) in the Office of the Deputy Director of Land Records, City Survey, Bengaluru and on attaining the age of superannuation, he retired from the service on 31.08.2019. While he was in service, he was deputed to Mysuru and when he was working at Mysuru, he was paid HRA and CCA applicable to Bengaluru City. Subsequent to the petitioner's retirement, a complaint was filed by one RTI

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4 - NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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Activist complaining that the petitioner while working at Mysuru on deputation, has drawn HRA and CCA applicable to the Bengaluru City and requested the Government to recover excess amount paid to the petitioner as HRA and CCA. Based on the said complaint, Official Memorandum dated 15.06.2020 (Annexure-A4) is passed directing recovery of a sum of Rs.1,24,841/- from the petitioner being difference of HRA and CCA between Bengaluru and Mysuru.

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Challenging the above said Official Memorandum,

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the petitioner was before the Tribunal and also praying for a direction to release leave encashment benefit along with interest at the rate of 8% per annum. The Tribunal under impugned order dated 14.9.2021 partly allowed the application of the petitioner directing the respondents to release the earned leave encashment amount to the petitioner with interest at 8% per annum after deducting Rs.1,24,841/-. Aggrieved by the order passed by the Tribunal, directing to release earned leave encashment amount after deducting Rs.1,24,841/-, the petitioner is before this Court.

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NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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Heard Sri. V.Srinivas, learned counsel for the petitioner and Sri. C.N.Mahadeswaran, learned Additional Government Advocate for the respondents. Perused the entire writ petition papers.

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Learned counsel for the petitioner would submit that the action of the respondents in passing impugned Official Memorandum dated 15.6.2020 (Annexure-A4) is opposed to the material on record and further submits that the respondents could not have ordered recovery from a retired Government Servant. It is submitted that the petitioner was on deputation to the Mysuru from Bengaluru and he was not transferred to Mysuru. The petitioner was substantively holding the post at Bengaluru and he was temporarily deputed to Mysuru. It is submitted that the Government has rightly paid HRA and CCA applicable to Bengaluru as the petitioner was holding substantive post at Bengaluru. Further, learned counsel would contend that recovery subsequent to retirement is impermissible and iniquitous.

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Further, learned counsel for the petitioner placing

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reliance on the decision of the Hon'ble Apex Court in the case

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6 - NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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of State of Punjab and Others vs. Rafiq Masih (White

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Washer) reported in (2015) 4 SCC 334 , submits that impugned Official Memorandum is passed more than a year subsequent to his retirement that to without affording any opportunity for his say in the matter. Learned counsel would further submit that if a notice had been issued to the petitioner, he would have explained how he was entitled for HRA and CCA applicable to Bengaluru City. Learned counsel further submits that the decision to recover is unilateral and further submits that recovery is impermissible as stated above. Thus, he prays for allowing the writ petition.

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Learned AGA on the other hand would support the order passed by the Tribunal and submits that when the petitioner was working at Mysuru he was not entitled to draw HRA and CCA applicable to Bengaluru City. Therefore, he submits that difference of HRA and CCA paid to the petitioner was ordered to be recovered. Learned AGA further submits that when pensionary benefits of the petitioner were being settled on his retirement, it came to the notice of the respondents that the petitioner is paid excess HRA and CCA. Further, learned AGA would submit that to the facts of the

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7 - NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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present case, the decision in Rafiq Masih case (supra) would have no application since it was within the knowledge of the petitioner that he would not be entitled for HRA and CCA of Bengaluru City while he was working at Mysuru. Thus, he prays for dismissal of the writ petition.

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Having heard the learned counsels for the parties

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and on perusal of the writ petition papers, the only point that falls for consideration in the facts and circumstances of the case is as to "Whether the respondents are justified in ordering recovery of excess payment towards HRA and CCA?" Answer to the said point is in the 'Negative' for the following reasons:

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It is an admitted fact that the petitioner was

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substantively holding the post at Bengaluru and he was deputed to work at Mysuru. While the petitioner was on deputation, he was paid HRA and CCA applicable to Bengaluru City instead of Mysuru City. He was working at Mysuru during the period of 2016-19. But during his service, the respondents have not taken any action to recover difference of HRA and CCA paid to the petitioner. Only after his retirement, impugned Official Memorandum dated 15.6.2020 is passed based on the

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complaint by one RTI Activist, directing recovery of difference amount of HRA and CCA of Rs.1,24,841/- out of earned leave encashment benefit of the petitioner. Admittedly, no notice is issued to the petitioner before determining the amount of Rs.1,24,841/-. When a benefit is conferred and that benefit is being withdrawn, it results in civil consequence, which needs prior notice. Moreover, as held by the Hon'ble Apex Court in Rafiq Masih case (supra) recovery from a retired Group-C Official is unreasonable and iniquitous. Nothing prevented the respondents from recovering difference amount while the petitioner was in service. Admittedly, no action is taken against the petitioner during his service. Thus, we are of the view that as held by the Hon'ble Apex Court in Rafiq Masih case (supra) no recovery be made from the petitioner. The Tribunal failed to consider as to whether recovery could have been effected against a Group 'C' retired Government Servant i.e., petitioner herein.

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For the reasons recorded above, the writ petition is

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allowed, impugned order passed by the Tribunal dated 14.9.2021 in Application Nos.4147 and 4284/2020 is set aside.

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NC: 2024:KHC:35157-DB WP No. 11063 of 2022

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Impugned Official Memorandum Bearing Ref.No.Ka.A.Sam: 02/2020-21 dated 15.6.2020 (Annexure-A4) is quashed.

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The respondents are directed to release portion of withheld leave encashment amount to the petitioner along with admissible interest within three months from today.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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SMJ

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List No.: 1 Sl No.: 22

Sri. K.M Siddaiah v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. K.M Siddaiah v. the State of Karnataka

Case brief

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What did the court decide?

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