Sri Bhargava Vs the Managing Director

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1 - NC: 2025:KHC:8381 WP No. 5667 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF FEBRUARY, 2025 BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 5667 OF 2022 (S-R)

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BETWEEN:

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SRI. BHARGAVA, AGED ABOUT 63 YEARS, S/O. LATE NARASIMHACHAR, RETIRED JUNIOR ASSISTANT, BESCOM, R/T NO. 654, 19^TH MAIN, SBI ATM ROAD, PADMANABHANAGR, BENGALURU 560 070

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…PETITIONER

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(BY SRI. SHAILENDRA M.R., ADVOCATE)

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AND:

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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THE MANAGING DIRECTOR CORPORATE OFFICE, BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED, CORPORATE OFFICE, K.R. CIRCLE, BENGALURU 560 001

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THE CHIEF GENERAL MANAGER FINANCE AND COMMERCIAL BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED, CORPORATE OFFICE, K.R. CIRCLE, BENGALURU 560 001.

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THE EXECUTIVE MANAGER (EL), JAYANAGAR DIVISION,

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NC: 2025:KHC:8381 WP No. 5667 of 2022

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BESCOM, BSK II STAGE, BENGALURU 560 078.

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…RESPONDENTS

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(BY SRI. B.L. SANJEEV, ADVOCATE FOR R1-R3)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE BY THE ISSUE OF AN APPROPRIATE WRIT OR ORDER OR DIRECTION, AS THE CASE MAY BE, THE ACTION OF THE RESPONDENTS IN RECOVERING A SUM OF RS.2,28,722/- FROM THE DCRG OF THE PETITIONER AS BEING ARBITRARY AND ILLEGAL AND VIOLATIVE OF ARTICLE 14 OF CONSTITUTION OF INDIA AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, 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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Though the matter is listed for hearing on I.A.No.1/2024,

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the same is taken up for disposal with the consent of learned counsels appearing for the parties.

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Heard Sri. M.R.Shailendra, learned counsel for the petitioner and learned counsel Sri. B.L.Sanjeev for the respondents. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that the petitioner retired as Junior Assistant of the respondent-

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NC: 2025:KHC:8381 WP No. 5667 of 2022

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BESCOM on attaining the age of superannuation on 31.07.2019. He submits that one day earlier to his retirement i.e., on 30.07.2019, an entry was made in the Service Register to recovery a sum of Rs.2,28,722/- from the terminal benefits of the petitioner on the ground that the pay of the petitioner is re-fixed, which results in recovery of Rs.2,28,722/-. Learned counsel further submits that no notice was issued to the petitioner about re-fixation of the pay. Moreover, he submits that no recovery could be effected from retired person, placing reliance on the decision of the Hon'ble Apex Court in the case

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of State of Punjab & Ors vs. Rafiq Masih (White Washer) & Others reported in 2015 (4) SCC 334 . Learned counsel further submits that the petitioner’s representation enclosing order of this Court has not yielded any result. Thus, he prays for a direction to the respondents to refund an amount of Rs.2,28,722/- along with interest.

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Learned counsel Sri. B.L.Sanjeev for the respondents would submit that the petitioner was paid excess pay during his service, which was noticed at the time of petitioner’s retirement and was ordered to be recovered. He submits that a person who has received excess pay is bound to

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NC: 2025:KHC:8381 WP No. 5667 of 2022

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refund the same. Thus, he would pray for dismissal of the writ petition.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the respondents could not have ordered recovery from the petitioner that too one day prior to his retirement on attaining the age of superannuation. 6. A perusal of Annexure-A, extract of service register indicates that an entry is made in the service register of the petitioner to the following effect:

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"C.eÁÕ. ¥ÀvÀæ ¸ÀASÉå:- ¨É«PÀA/¸À¥ÀæªÀå(¤&¸ÉÃ)ªÀå/ 9/201920/1503/30.7.19 gÀ£ÀéAiÀÄ ªÉÃvÀ£ÀªÀ£ÀÄß ªÀÄgÀÄ¤UÀ¢¥Àr¹ C¢üPÀªÁV ¥ÁªÀwAiÀiÁVgÀÄªÀ gÀÆ. 228722-00 UÀ¼À ªÉÆvÀÛªÀ£ÀÄß ªÀ¸ÀÆ° ªÀiÁqÀ®Ä PÀæªÀÄªÀ£ÀÄß PÉÊUÉÆ¼Àî¯ÁVzÉ."

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A reading of the above, indicates that since the petitioner is paid excess pay and as his pay was re-fixed, a sum of Rs.2,28,722/- is ordered to be recovered. Apparently, no notice is issued to the petitioner calling upon him to explain as to why his pay should not be re-fixed to his disadvantage and why recovery should not be effected. Further amount ordered

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to be recovered is not determined in any proceedings, the action of the respondents is in total violation of principles of natural justice. Moreover, the respondents have not taken any action for recovery from the petitioner towards excess pay during his service.

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In terms of Annexure-A, Entry to service register to recover a sum of Rs.2,28,722/- is made on 30.07.2019, a day before petitioner’s retirement on attaining the age of superannuation. In terms of the decision of Rafiq Masih case (supra) no recovery could be effected from retired or an employee who is to retire within one year, that too belonging to Group-C and D. The relevant Paragraph No.18 of the said judgment reads 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 hereinabove, 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 the employees belonging to Class III and Class IV service (or Group C and Group D service).

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6 - NC: 2025:KHC:8381 WP No. 5667 of 2022

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

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(iii) Recovery from the 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 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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As the recovery is without any notice and following the principles laid down in Rafiq Masih case (supra), I deem it appropriate to pass the following:

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ORDER

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