The General Manager Admin And Hrd vs S A Gangaiah
2022 Latest Caselaw 1874 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                          PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                W.A.No.1350/2021 (S - RES)

BETWEEN :

1.      THE GENERAL MANAGER
        ADMIN & HRD, KPTCL,
        CORPORATE OFFICE, CAUVERY BHAVAN,
        BANGALORE-560 009
        DIRECTOR (ADMIN & HRD)
        SIGNED ON BEHALF OF
        GENERAL MANAGER.

2.      THE SUPERINTENDENT ENGINEER
        BANGALORE SOUTH CIRCLE,
        BESCOM, NRUPATHUNGA ROAD,
        BANGALORE-560 001.

3.      THE EXECUTIVE ENGINEER (EL)
        MALLESWARAM DIVISION,
        13TH CROSS, 3RD MAIN, BESCOM,
        BANGALORE-560 003.                   ...APPELLANTS

(BY SMT.GIRIJA PATIL, ADV. FOR SRI RAVINDRA REDDY, ADV.)

AND :

S.A.GANGAIAH
AGED ABOUT 62 YEARS,
FORMERLY WORKING AS
JUNIOR ENGINEER (EL), BESCOM.
NOW R/AT NO.82, 6TH MAIN ROAD,
                          -2-



CHANNIGAPPA EXTENSION
VENKATAPPA COMPOUND
VRUSHABAVATHI TOWN
KAMAKSHI PALYA,
BANGALORE-560 079.                      ...RESPONDENT


     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE
JUDGEMENT OF THE LEARNED SINGLE JUDGE PASSED IN
W.P.NO.26154/2017 DATED 16.09.2021 AND ETC.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                  JUDGMENT

This intra-Court appeal is directed against the

order dated 16.09.2021 passed by the learned Single

Judge in W.P.No.26154/2017, whereby the petition filed

by the respondent herein has been allowed.

2. The respondent claiming to be retired Junior

Engineer (Ele.) with the appellant - Board approached

the writ Court challenging the endorsement (Annexure -

D) dated 28.01.2016 and communication (Annexure -

G) dated 27.05.2017 issued by the appellants for the

recovery of excess payment made towards House Rent

Allowance of Rs.3,58,964/ relatable to the period from

2012 till 2015. Learned Single Judge after hearing both

the parties, following the judgment of the Hon'ble Apex

Court in the case of State of Punjab and others vs.

Rafiq Masih reported in AIR 2015 SC 696, allowed the

petition quashing the endorsement dated 28.01.2016

(Annexure - D) directing the appellants to release the

withheld/recovered amount of Rs.3,58,940/- with

interest at 6% per annum from the date of retirement till

the date of payment. Hence, this appeal by the

appellants - employer.

3. Learned counsel for the appellants

submitted that the learned Single Judge failed to

consider Regulation 65(f) of Karnataka Electricity Board

Employees Service Regulations ('Regulations' for short),

which provides that HRA/CCA are payable with

reference to the place of duty, irrespective of the place of

residence of an employee. The judgment relied upon by

the learned Single Judge in the case of Rafiq Masih,

supra, is not applicable to the facts of the present case.

Learned counsel made an endeavor to distinguish the

said case submitting that the entitlement of the

employees to the wages for the post against which they

have discharged their duties was the subject matter in

the said case, whereas the issue herein relates to House

Rent Allowance.

4. Learned counsel for the appellants placing

reliance on the judgment of the Hon'ble Apex Court in

the case of Chandi Prasad Uniyal and others vs.

State of Uttarkhand and others reported in (2012) 8

SCC 417 submitted that the excess payment of public

money which belongs neither to the officers who have

effected overpayment nor to the recipients i.e.,

paid/received without authority of law can always be

recovered.

5. We have carefully considered the

submissions of the learned counsel for the appellants

and perused the material on record.

6. The undisputed facts are that the

respondent retired from service on attaining the age of

superannuation on 30.06.2015. As per Regulation 65(f)

of the Regulations, an employee of appellant BESCOM

would be entitled to House Rent Allowance and City

Compensatory Allowance with reference to place of duty,

irrespective of place of residence of an employee.

Learned Single Judge analyzing this provision has held

that no excess HRA as contended by the appellants was

paid since the place of posting and place of duty of the

respondent was shown as 3rd North Sub-Division as per

Official Memorandum (Annexure -A) dated 18.12.2012

and his lien was retained at the same place dehorse he

was deputed to Nelamangala. This finding of the

learned Single Judge cannot be faulted with that too,

when the recovery of the excess payment was made

from the terminal benefits of the employee without

issuing any notice.

7. The judgment of the Hon'ble Apex Court in

the case of Chandi Prasad Uniyal, supra, has been

considered by the Hon'ble Apex Court in the subsequent

judgment of Rafiq Masih, supra and has held that any

excess payment made on the wrong notion, would be

iniquitous or harsh to recover from the retired

employees, or employees who are due to retire within

one year, of the order of recovery. In the circumstances,

we cannot accede to the arguments advanced by the

learned counsel for the appellants.

We find no merit in the writ appeal. Accordingly,

writ appeal stands dismissed.

In view of dismissal of the main appeal, all

pending I.As. stand disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

PMR