Ramesh Rao Vs the Hon'Ble High Court of Karnataka

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDERS DATED 12.02.2015, ISSUED BY 3^RD RESPONDENT VIDE ANNEXURE-Q & Q1 AS NULL AND VOID AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ

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ORAL ORDER

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The petitioner has challenged an order dated 12.02.2015 issued by the respondent No.3 directing recovery of a sum of Rs.5,09,933/- being the excess salary paid to the petitioner.

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The petitioner contends that when he was working as a Sheristedar at the respondent No.3, he was granted with an increment vide order dated 06.04.2002. Accordingly, the

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pay scale of the petitioner was re-fixed in terms of an order dated 19.11.2002. He continued in service and was granted promotions and increments from time to time. However on 04.07.2007, the respondent No.3 issued a notice to the petitioner directing him to deposit a sum of Rs.1,09,983/- on the ground that the petitioner was not entitled to the additional increment for having passed the Kannada examination. This notice was challenged by the petitioner in W.P.No.18142/2007 and said petition was allowed and notice dated 04.01.2007 was set aside. However this Court directed the respondent No.3 to give an opportunity to the petitioner to show cause and to pass appropriate orders. Thereafter the respondent No.4 again issued another notice calling upon the petitioner to pay a sum of Rs.2,84,950/-. The petitioner challenged it before this Court in W.P.No.14034/2010 which was allowed in terms of the order dated 11.06.2014. Pursuant thereto, the petitioner submitted a representation along with a copy of the order passed by this Court in W.P.No.14034/2010 on 30.06.2014. The respondent No.2 issued another notice stating that the petitioner is liable to reimburse excess pay and allowances amounting to Rs.5,95,070/-. The petitioner then purportedly realised that his

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pay was refixed by respondent No.5 by reducing his basic pay from a sum of Rs.32,000/- to Rs.26,700/- with effect from May, 2014. The petitioner therefore submitted various representations requesting the respondent No.2 to withdraw the re-fixation and comply the order passed by this Court in W.P.No.14034/2010. He contends that the respondent No.3 in deference to the order passed in W.P.No.107918/2014 passed an order dated 19.01.2015 and forwarded the papers relating to the petitioner to the respondent No.7 for necessary correction and re-fixation. Accordingly, the respondent No.2 addressed a communication dated 27.01.2015 to the respondent No.3, following which, the respondent No.3 passed an order dated 12.02.2015 re-fixing the basic pay of the petitioner at a sum of Rs.28,800/- as on 01.12.2014, though his basic pay as per the pay bill as on 14.05.2014 was Rs.32,000/-. Thereafter the petitioner submitted his application for voluntary retirement. The respondent No.2 granted permission to retire from service but informed the petitioner that the excess amount paid to the petitioner from 16.12.1980 would be deducted from out of voluntary retirement scheme benefit that would be payable to the petitioner. The petitioner

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therefore being aggrieved by the re-fixation of pay by reducing the basic pay to a sum of Rs.28,800/- and the consequent action initiated by respondents to recover the excess pay and allowances paid to him has approached this Court in this writ petition.

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The learned counsel for the petitioner contends

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that the petitioner was a Group - 'C' employee and that the alleged excess payment made to the petitioner was from the year 1980. He contends that the petitioner had no role to play in fixing his basic pay at a sum of Rs.32,000/- and in re-fixation of his pay and therefore, the respondents could not have proceeded to recover the excess pay paid after re-fixing his basic pay at a sum of Rs.28,800/-. He contends that in similar circumstances, the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and

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others - (2015) 2 SCC 334 had held that excess pay paid to Group - 'C' employees should not be recovered after they had retired from service. He therefore, contends that the facts in present case is squarely covered by the judgment of the Hon'ble Apex Court referred supra and therefore prays that the impugned order passed by the respondent No.2 reducing the

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basic pay of the petitioner from a sum of Rs.32,000/- to Rs.28,800/- be set aside and the respondents be directed to restore all amounts deducted from out of voluntary retirement scheme benefit payable to him.

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Per contra, learned counsel for the respondent No.1 submitted that the petitioner was not entitled to an additional increment that was granted to him in the year 1980. He contends that while refixing the pay of the petitioner, it was found that the petitioner was paid excess pay and allowances and therefore the same had to be recovered. He contends that when the petitioner submitted his request for voluntary retirement, he had given an undertaking that any amount paid in excess may be recovered from the voluntary retirement scheme benefit. He therefore contends that the petitioner is bound by the undertaking given by him and any amount paid in excess to the petitioner has to be recovered. He further contends that the excess amount paid to the petitioner was public money and therefore the same has to be recovered. In support of his contentions, he relied upon the judgment of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand - (2012) 8 SCC 417 and High Court

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of Punjab and Haryana and others Vs. Jagdev Singh - 2016 (14) SC 267.

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I have considered the submissions of the learned

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counsel for the petitioner as well as the learned counsel for the respondents.

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The claim for recovery of excess pay paid to the petitioner is on the premise that when one additional increment was granted to the petitioner with effect from 16.12.1980, he was not entitled to the same. However, in view of the additional increment so granted, basic pay of the petitioner stood revised as on 01.01.1982, consequent to which certain additional increments were granted and pay of the petitioner was subsequently revised from time to time. The attempt of the respondents now is to undo the additional increment paid to the petitioner in the year 1980 and the cascading effect that it had on the increments and the revision in the pay scale, which purportedly has resulted in excess payment to the petitioner to the tune of Rs.5,09,993/-. The petitioner was admittedly a Group - 'C' employee and has now retired from service. There was no lapse on the part of the petitioner or misrepresentation

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in claiming the additional increment in the year 1980. The respondents who had granted the additional increment in the year 2002 had slept over till the year 2007, when they realized that the additional increment was wrongly granted to the petitioner. Therefore, as rightly contended by the learned counsel for the petitioner, the case of the petitioner is squarely covered by the judgment of the Hon'ble Apex Court in the case of Rafiq Masih referred supra and the excess amount paid to the petitioner cannot be recovered from the voluntary retirement scheme benefit payable to the petitioner.

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In so far as the judgment relied upon by the learned counsel for the respondents in the case of Chandi Prasad Uniyal referred supra that was a case where the pay scale was revised on the basis of the 5^th Central Pay Scale where a condition was superimposed that in the event of irregular or wrong fixation of pay, the institution would be entitled to recover the amount received in excess from the salary pension. Similarly in the case of Jagdev Singh supra there was an undertaking given by the concerned employee at the time of revision of pay scale that any excess pay would be refunded. In the case on hand, the facts are entirely different

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and are similar to the facts in the case of Rafiq Masih. Therefore, the contention of the learned counsel for the respondents that they are entitled to recover the excess pay and allowances paid to the petitioner, is not justified.

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Consequently this writ petition is allowed . The impugned action to recover the excess pay paid to the petitioner is quashed. The respondents are directed to take steps to restore the amounts recovered from the voluntary retirement scheme benefits payable to the petitioner within three months from the date of receipt of a copy of this order. However, as there is no challenge to the re-fixation of pay of the petitioner, the same is upheld.

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Sd/(R.NATARAJ) JUDGE

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HJ

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List No.: 19 Sl No.: 16

Ramesh Rao v. the Hon'Ble High Court of Karnataka

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Ramesh Rao v. the Hon'Ble High Court of Karnataka

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