Karnataka High Court

Laxman G. Byndoor vs The Senior Branch Manager on 10 November, 2021

Bench: M.Nagaprasanna

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         WRIT PETITION No.53239 OF 2016 (S-RES)


BETWEEN:

LAXMAN G. BYNDOOR
AGED ABOUT 61 YEARS,
VOLUNTARILY RETIRED STAFF
E.C.NO.34159, PPO NO.65963
NO.114, POLICE QUARTERS
VINOBA NAGAR
SHIVAMOGGA - 577 202.
                                         ... PETITIONER

(BY SRI K.R.GANESH RAO, ADVOCATE (PHYSICAL
    HEARING))

AND:

1.     THE SENIOR BRANCH MANAGER
       BANK OF BARODA
       SHIVAMOGGA BRANCH
       B.H.ROAD
       SHIVAMOGGA - 577 201.

2.     THE DEPUTY GENERAL MANAGER
       BANK OF BARODA
       REGIONAL OFFICE, III FLOOR,
       "NITESH LEXINGTON AVENUE",
       NO.72, BRIGADE ROAD,
       BENGALURU - 560 025.
                          2




3.   THE DEPUTY GENERAL MANAGER
     (HR-OPERATIONS)
     BANK OF BARODA, HRM DEPARTMENT,
     HEAD OFFICE, BARODA HOUSE,
     MANDVI, BARODA - 390 006
     GUJARATH STATE.

4.   THE MANAGING DIRECTOR &
     CHIEF EXECUTIVE OFFICER
     BANK OF BARODA,
     BARODA CORPORATE CENTRE,
     C-26, G BLOCK,
     BANDRAKURLA COMPLEX,
     BANDRA (E), MUMBAI - 400 051.
                                     ... RESPONDENTS

(BY SRI T.P.MUTHANNA, ADVOCATE (VIDEO
    CONFERENCING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE RECOVERY ORDER OF THE R-1 AS PER
LETTER DTD:26.8.2016 & 23.9.2016 ANNEXURE-X & Y TO
THIS WRIT PETITION; DIRECT THE RESPONDENTS TO
CONSIDER     THE    PETITIONERS     REPRESENTATION
DTD:23.6.2016 AS PER ANNEXURE-T DULY RECONCILING
THE PETITIONERS LEAVE ACCOUNT AND CALCULATE HIS
PENSION AS PER 10TH BIPARTITE SETTLEMENT.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.07.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
                      ORDER

The petitioner in this writ petition seeks the

following prayers:

"(a) issue a writ in the nature of certiorari or any other writ or order quashing the recovery order of the respondent No.1 as per Annexure-X and Y, to this writ petition.

(aa) issue a writ in the nature of certiorari or any other writ or order quashing the pension payment order No.65963 revised dated 18-07-2014 issued by the Pension and Gratuity Department Head Office, Baroda of the respondents as per Annexure-H to the writ petition and

(ab) issue a writ of mandamus or any other writ or order directing the respondents to calculate the petitioner's pension as per his representation dated 23-06-2016 as per Annexure-T to the writ petition simultaneously.

(b) issue a writ of mandamus or any other writ or order directing the respondents to consider the petitioner's representation dated 23-06-2016, as per Annexure-T, duly reconciling the petitioner's leave account and calculate his pension as per 10th Bipartite Settlement.

(c) award exemplary cost of this writ petition."

2. Heard Sri K.R.Ganesh Rao, learned counsel for

the petitioner and Sri T.P.Muthanna, learned counsel

for respondents.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as

follows:-

The petitioner joins the services of

respondents/Bank of Baroda (hereinafter referred to as

'the Bank' for short) as Peon on 01-06-1979 and was

promoted as Clerk in the year 1984. When the petitioner

was working in the cadre of Clerk, owing to certain

misconduct committed by him, disciplinary proceedings

were initiated by issuance of a charge sheet on

18-01-1999 and the outcome of disciplinary proceedings

was that the petitioner was imposed penalty of removal

from service with effect from 7.09.2000. Petitioner

challenged the said order of penalty before the Central

Government Industrial Tribunal ('the Tribunal' for short)

which allowed the dispute by its award dated 4-10-2007

directing the petitioner to be reinstated with full back

wages. The Bank challenged the said award of the

Tribunal before this Court in Writ Petition No.1604 of

2008. This Court by its order dated 6-03-2009 modified

the order of the Tribunal only with regard to payment of

back wages and the full back wages awarded by the

Tribunal was reduced to 50%. Accepting the said award,

the petitioner was reinstated to service of the Bank on

20-08-2009 and 50% of back wages was paid in terms

of the order passed by this Court.

4. The petitioner as a single window operator at

the APMC Yard Branch, Bangalore submits an

application seeking to voluntarily retire from the service

of the Bank on health grounds. The application was

submitted on 17-04-2013. The application of the

petitioner was processed by the Bank and on

consideration of the application for voluntary

retirement, the Bank accepted the same and relieved

the petitioner on 31.12.2013. Pursuant to relieving of

the petitioner, the petitioner was paid all terminal

benefits including pension. The pension was calculated

in terms of the service rendered by the petitioner and

the emoluments were calculated for last 10 months

beginning from September 2011 to May 2012 and

December 2013. Accordingly. the petitioner was issued

a pension payment order on 19-03-2014 which came to

be revised on a representation given by the petitioner

which was for the purpose of inclusion of stagnation

increment.

5. 10th Bipartite Settlement was arrived at between

the Indian Banks' Association and the Workmen Unions

with regard to wage revision which was implemented

pursuant to the circular issued by the Indian Banks'

Association on 25-05-2015 and the same was to come

into effect from 01-11-2012. Last 10 months of average

emoluments in the case of the petitioner in terms of

revision of pay fell between two parts of Bipartite

Settlement one prior to 01-11-2012 and the other after

01-11-2012. The petitioner on 15-07-2015 submitted

an option for payment of incremental commutation of

revision of pension and other benefits in terms of 10th

Bipartite Settlement dated 25-05-2015. The petitioner

also gave an undertaking that in the event excess

payment is made, the same could be recovered. In terms

of the 10th Bipartite Settlement, the petitioner was also

paid difference of amount on 22-07-2015.

6. The Bank claiming to have paid excess amount

of pension to the tune of Rs.2,42,904/- directed the

petitioner by its communication dated 26-08-2016 to

refund the said amount that was paid and the Bank

indicated that unless the petitioner refunds excess

amount received by him, no other correspondence with

regard to re-calculation of pension would be

entertained. The Bank again by its communication

dated 23-09-2016 indicated that the Bank will

commence deduction of 1/3rd of pension from the

month of September, 2016 till excess amount is

recovered. It is these two communications that are

called in question by the petitioner.

7. The learned counsel appearing for the petitioner

would submit that the Bipartite Settlement came into

effect on 25.05.2015 from retrospective date i.e., 1-11-

2012 and the petitioner did work for 8 days in the

month of December, 2013 till his application for

voluntary retirement was accepted and he was relieved

from service with effect from 31-12-2013 and therefore

the Bipartite settlement which came into effect from

1.11.2012 with regard to wage revision will have to

made applicable to the petitioner in the light of his

working for 8 days in the month of December, 2013 and

would submit that no recovery of excess amount paid to

the petitioner can be made in the light of the judgment

of the Apex Court in the case of STATE OF PUNJAB v.

RAFIQ MASIH1.

(2015) 4 SCC 334

8. On the other hand, the learned counsel

appearing for the respondents Sri T.P.Muthanna would

submit that the petitioner was unauthorisedly absent

for the period between September 2011 to May 2012

and the said period was treated as leave without pay

due to which no salary was paid to the petitioner and

the petitioner deliberately comes and reports to duty for

8 days in the month of December 2013 prior to which,

he had applied leave till his application for voluntary

retirement was considered. Therefore, in terms of

Regulation 38(4) of the Bank of Baroda (Employees')

Pension Regulation, 1995 ('the Regulations' for short),

pension and terminal benefits for the period between

September 2011 to May 2012 and December 2013 were

erroneously added, as the petitioner would not be

entitled to any pay on wage revision as continuity of

previous 10 months of service never existed in the case

of the petitioner. He would submit that the Apex Court

in a subsequent judgment has distinguished the

judgment in the case of RAFIQ MASIH and has held

that recovery was permissible in the case of HIGH

COURT OF PUNJAB AND HARYANA v. JAGDEV

SINGH2 and would also submit that the writ petition be

dismissed.

9. I have given my anxious consideration to the

submissions made by the respective learned counsel for

the parties and have perused the material on record.

10. The issue in the petition is, whether the

petitioner would be entitled to calculate previous 10

months of his emoluments going backwards from

December, 2013 to the last 10 months?

11. The afore-narrated facts are not in dispute.

The petitioner was reinstated into service pursuant to

an order passed by this Court on 20-08-2009 and

submitted his application for voluntary retirement on

17-04-2013 and the same was accepted on 31.12.2013.

(2016) 14 SCC 267

The petitioner did not attend the Bank from 14.05.2012

to 23-12-2013 owing to certain illness and his absence

was treated as unauthorized for which period no salary

was also paid, which would mean that it was treated as

leave without salary. During the month of December,

2013 the petitioner reported back to duty, worked for 8

days and again applied leave till his application for

voluntary retirement was accepted. Therefore, the

admitted dates are that the petitioner did not work

from14-05-2012 to 23-12-2013 except for 8 days in the

month of December,2013. Pension is paid to its

employees in terms the Regulations.

12. Regulation 2(d) defines what is 'Average

Emoluments' and reads as follows:

"2. Definitions:

In these Regulations, unless the context otherwise requires, ... ... ...

d) "Average Emoluments" means the average of the pay drawn by an employee during the last ten months of his service in the Bank;

Regulation 38 deals with 'Determination of the period of

ten months for average emoluments' and reads as

follows:-

"38. Determination of the period of ten months for average emoluments.-

(1) The period of the preceding ten months for the purpose of average emoluments shall be reckoned from the date of retirement.

(2) In the case of voluntary retirement or premature retirement, the period of the preceding ten months for the purpose of average emoluments shall be reckoned from the date on which the employee voluntarily retires or is premature retired by the Bank.

(3) In the case of dismissal or removal or compulsory retirement or termination of service, the period of the proceeding the months for the purpose of average emoluments shall be reckoned from the date on which the employee is dismissed or removed or compulsorily retired or terminated by the Bank.

(4) If during the last ten months of the service, an employee had been absent from duty on extraordinary leave on loss of pay or had been under suspension and the period whereof does not count as service, the aforesaid period of extraordinary leave or suspension shall not be taken into account in the calculation of the average emoluments and equal period before the ten months shall be included."

(Emphasis added)

Therefore, it is the afore-extracted Regulation 2(d) and

Regulation 38 that are germane to be considered for

resolution of the lis.

13. Regulation 2(d) would mean average of the pay

drawn by the employee during the last ten months of

his service in the Bank. The determination of ten

months is as per Regulation 38. Regulation 38(4) is

what is required to be noticed in the case on hand,

which directs that if during the last ten months the

employee has been absent from duty on extraordinary

leave on loss of pay or had been under suspension, the

period whereof would not count as service and the same

would not be taken into account for the purpose of

calculation of average emoluments and equal period

before ten months would be included. The lis is in the

interpretation of Regulation 38(4) insofar as it concerns

extraordinary leave on loss of pay and the other part

with regard to suspension.

14. According to the learned counsel appearing for

the petitioner, though the petitioner was absent from

14-05-2012 to 23-12-2013 he did work from

23-12-2013 till he was relieved on acceptance of

voluntary retirement and as such, according to him,

average emoluments would fall for two spells one for the

period up to 14.05.2012 which would be a pre-revised

pay and from 1.11.2012 since he worked for 8 days in

December, 2013.

15. If it is his case that he has worked for 8 days

in December, 2013 and from 14-05-2012 it is treated as

extraordinary leave, it cannot become the period for

average emoluments on the ground that the petitioner

admittedly did not work from 14-05-2012 to 23-12-2013

and did work for 8 days between 23-12-2013 to

31-12-2013. Therefore, in terms of Regulation 38(4),

though in every case an employee would be entitled to

calculate average emoluments even on loss of pay, for

the act of the petitioner in the peculiar circumstance of

the case, I decline to accept his plea on the plain ground

that the petitioner never worked from 14-05-2012 till he

retired voluntarily except for 8 days in December, 2013.

Therefore, his service froze on 14-05-2012 for the

purpose of determination of emoluments.

16. What was operational during the period of

14-05-2012 or previous ten months was the 7th

Bipartite Settlement. The 8th Bipartite Settlement comes

into effect from 1-11-2012. The retrospectivity given to

the Bipartite Settlement would be applicable to

employees for calculation of average emoluments and

not for the petitioner, as the petitioner barely worked for

8 days during the period in which pay revision with

regard to 8th Bipartite Settlement had become

operational. Therefore, no fault can be found with the

Bank in directing recovery of excess amount paid to the

petitioner.

17. It is not the case where recovery of amount

was being made after an inordinate delay. The petitioner

retired voluntarily on 31-12-2013, pension was paid to

the petitioner on 18-07-2014 and the Bank immediately

communicated on 15-07-2015 with regard to excess

payment made. Therefore, the judgment that the

petitioner relies on in the case of RAFIQ MASIH (supra)

would not be applicable to the facts of the case at hand,

as the 5 postulates laid down in para 18 of the

judgment in the said case do not cover the facts on

hand, as recovery was immediately ordered to be

initiated from pension of the petitioner and recovery is

stalled during the pendency of these proceedings before

this Court.

18. It is not in dispute that the petitioner has also

undertaken to refund excess payment, if any, made

while accepting the revised pay on 15-07-2015. The

case of the petitioner is that it is a standard format as

every person has to sign and this cannot be put against

the petitioner for effecting recovery. This again is

unacceptable in the light of the subsequent judgment of

the Apex Court in the case of JAGDEV SINGH (supra)

which covers the case at hand on all fours. The Apex

Court, in the said judgment, while distinguishing the

judgment in the case of RAFIQ MASIH has held as

follows:

"10. In State of Punjab v. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a

recovery by the employer would be impermissible in law: (SCC p.334-35)

(i) Recovery from employees belonging to Class II and Class IV service (or Group-

C and Group-D service)

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

(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.

(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.

(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.

11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any

payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable installments. We direct that the recovery be made in equated monthly installments spread over a period of two years."

(Emphasis supplied)

Therefore, none of the grounds urged, by the petitioner

is acceptable on a plain interpretation of Regulations

2(d) and 38(4) of the Regulations qua the peculiar facts

obtaining in the case at hand and the judgment of the

Apex Court in the case of JAGDEV SINGH (supra).

19. In all cases the employees would be entitled to

the relief of the kind that the petitioner claims and

denial of such a claim to the petitioner is in the peculiar

facts of this case, as the petitioner failed to work in the

Bank and remained unauthorisedly absent for close to

19 months and only worked for 8 days, prior to his