B.S Hanumesha Vs Director (a and Hr)

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1 - NC: 2025:KHC:7991 WP No. 16140 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 16140 OF 2023 (S-RES)

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BETWEEN:

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B. S HANUMESHA AGED ABOUT 63 YEARS, RETIRED METER READER W-2, SD, R R NAGAR DIVISION, BESCOM, BANGALORE 560 026 R'/AT 22/10, 6^TH PARALLEL ROAD, CHAMARAJPET, BANGALORE - 560 018

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…PETITIONER

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(BY SRI. SRINIVASA K, ADVOCATE)

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AND:

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DIRECTOR (A AND HR) KPTCL, KAVERI BHAVANA, BANGALORE - 560 009.

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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

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SUPERINTENDING ENGINEER (ELE) BESCOM, O AND M WEST CIRCLE, BASAVESHWARA NAGAR, 2^ND STAGE, BHEEMA JYOTHI NAGAR, HBCS LAYOUT, BANGALORE - 560 079.

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EXECUTIVE ENGINEER (ELE) BESCOM, O AND M, R.R. NAGAR DIVISION, BYATARAYANAPURA

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2 - NC: 2025:KHC:7991 WP No. 16140 of 2023

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MYSORE ROAD, BANGALORE - 560 026.

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…RESPONDENTS

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(BY SRI. NIROOP SUKIRTHY. V ADVOCATE FOR SRI. T.S, VENKATESH ADVOCATE FOR R2; SRI. H.V, DEVRAJU, ADVOCATE FOR R1; SMT. SUMANA NAGANAND ADVOCATE FOR R3 AND R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED OFFICIAL MEMORANDUM BEARING NO. 2479 DATED 07/08/2019 ISSUED BY R4 VICE ANNEXURE-C TO THE WP. DIRECTING THE RESPONDENT THE R4 TO REFUND THE ENTIRE AMOUNT OF RS. 2,20,404/- ALONG WITH INTEREST AT 6 PERCENT P.A. TO BE EFFECTIVE FROM 02/09/2019 AS PER THE REPRESENTATION OF THE PETITIONER DATED 02/09/2019 VIDE ANNEXURE-E TO THE WP.I.A.1/23 FOR DISPENSATION.

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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

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ORAL ORDER

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Petitioner, a retired Meter Reader of respondent-

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BESCOM is before this Court under Article 226 of the Constitution of India questioning O.M. bearing No.PÁ¤EA(«)/gÁgÁ£À«/¯É/¸À¯É/»¸À(¹)/2479 dated 07.08.2019

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(Annexure-C) wherein the respondent No.4 ordered recovery of a sum of Rs.2,20,404/- on the ground that the petitioner is paid excess pay and directed to deduct the

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NC: 2025:KHC:7991 WP No. 16140 of 2023

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said amount from out of the terminal benefits of the petitioner. The petitioner has also sought for a mandamus directing respondent No.4 to refund a sum of Rs.2,20,404/- along with interest at the rate of 6% p.a.

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Heard learned counsel Sri.Srinivasa.K., for petitioner, learned counsel Sri.H.V.Devaraju for respondent No.1, learned counsel Sri.Niroop Sukirthy.V., for Sri.T.S.Venkatesh, learned counsel for respondent No.2 and learned counsel Smt.Sumana Naganand for respondent Nos.3 and 4. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that petitioner was initially appointed as Assistant Lineman on 01.04.1983 and subsequently he was promoted as Meter Reader and retired from service on attaining the age of superannuation on 31.08.2019. Few days before his retirement, it is submitted that, notice dated 07.08.2019 was issued asking the petitioner to submit his reply as to why a sum of Rs.2,20,404/- should not be recovered from his terminal benefits, as the petitioner is paid excess pay.

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4 - NC: 2025:KHC:7991 WP No. 16140 of 2023

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The petitioner submitted reply in terms of Annexure-E dated 02.09.2019. The respondents directed to recover a sum of Rs.2,20,404/- from the terminal benefits of the petitioner. Questioning the said recovery and seeking refund of the said amount along with interest, petitioner is before this Court in this writ petition.

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Learned counsel Sri.K.Srinivasa appearing for

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the petitioner would submit that no recovery is permissible from terminal benefits of Group-C and D employees. Learned counsel for the petitioner submits that if the petitioner is paid excess pay for the period from 01.04.2008 to 31.07.2019, he submits that no action was taken since 2008 and the respondents continued without taking any action till 2019. Learned counsel placing reliance on the decision of STATE OF PUNJAB AND OTHERS v/s RAFIQ MASIH (WHITE WASHER)¹ prays for allowing the writ petition and to direct the respondents to refund the recovered amount.

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1 (2015) 4 SCC 334

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Per contra, learned counsel Sri.Niroop Sukirthy.V., for Sri.T.S.Venkatesh, learned counsel for respondent No2 submits that the petitioner was issued with notice as at Annexure-C dated 07.08.2019 and after considering the petitioner’s reply, recovery was ordered. Learned counsel would also submit that the petitioner has submitted undertaking on 07.08.2019 itself consenting to recover the amount from his terminal benefits. Taking note of the above undertaking, he submits that recovery was effected. Learned counsel also submitted that the person who has received excess pay is bound to refund the same. Thus, he justifies the action of the respondents and prays for dismissal of the writ petition.

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Having heard the learned counsel appearing for

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the parties and on perusal of the entire writ petition papers, the only point which falls for consideration is as to,

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Whether the respondents are justified in ordering recovery of a sum of Rs.2,20,404/-

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from out of the terminal benefits of the petitioner?

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The answer to the above point would be that respondents are not justified in ordering recovery from the terminal benefits of the petitioner and respondents are liable to refund the same with interest for the following

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reasons:

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It is not in dispute that the petitioner retired from service on attaining the age of superannuation on 31.08.2019 as Meter Reader. Annexure-C, notice dated 07.08.2019 indicates that the petitioner was paid one excess increment on his promotion which resulted in payment of excess pay in a sum of Rs.2,20,404/- up to the date of his retirement i.e., 31.08.2019. If the excess pay is from 01.04.2008, the petitioner who was in service till 2019, nothing prevented the respondents from taking action to re-fix and recover the excess pay from the petitioner. The respondents initiated action for recovery only 20 days before the petitioner’s retirement i.e., on 31.08.2019.

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NC: 2025:KHC:7991 WP No. 16140 of 2023

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8. The Hon'ble Apex Court in RAFIQ MASIH

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(supra) has held that the recovery from a retired employee or who is retiring within one year shall be iniquitous and unreasonable. At paragraph 18 it has held as follows:

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“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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even

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though he should have rightfully been required to work against an inferior post.

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(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.”

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In the light of the above observations of the

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Hon'ble Apex Court, I am of the view that recovery from the petitioner’s terminal benefits is unreasonable and the petitioner would be entitled for refund of the recovered amount. The respondent-Authorities having kept quite for more than 10 to 12 years could not have taken action for recovery, when the petitioner was about to retire, till August 2019.

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