The Zilla Panchayath vs Smt Geetha
2022 Latest Caselaw 3107 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                W.A.No.1762/2019 (S - RES)

BETWEEN :
1.      THE ZILLA PANCHAYATH
        CHIKKAMAGALORE DISTRICT
        CHIKKAMAGALORE-577102
        BY ITS CHIEF EXECUTIVE OFFICER

2.      THE FINANCE OFFICER
        NOW REP BY CHIEF ACCOUNT OFFICER,
        ZILLA PANCHAYATH,
        CHIKKAMAGALORE DISTRICT,
        CHIKKAMAGALORE-577102.                  ...APPELLANTS

                (BY SRI ASHOK N. NAYAK, ADV.)

AND :
1.      SMT.GEETHA
        W/O SRI VIDHYASAGAR
        AGED ABOUT 57 YEARS
        OCC: FDA, O/O ZILLA PANCHAYATH
        CHIKKAMAGALORE-577102.

2.      STATE OF KARNATAKA
        REP BY ITS PRINCIPAL
        SECRETARY TO GOVERNMENT,
        RURAL DEVELOPMENT & PANCHAYATH
        RAJ DEPARTMENT, M.S.BUILDING,
        Dr. AMBEDKAR ROAD,
                           -2-



     BENGALURU-560001.                   ...RESPONDENTS

     (BY SRI RAGHAVENDRA G. GAYATRI, ADV. FOR R-1;
       SRI T.P.SRINIVASA, PRL. GOVT. ADV. FOR R-2.)

     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS WRIT
APPEAL AND SET ASIDE THE JUDGMENT DATED 06.04.2018
PASSED IN W.P.NO.12934/2014(S-RES).

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


                   JUDGMENT

This intra-Court appeal is directed against the

order dated 6.4.2018 passed by the learned Single

Judge in W.P.No.12934/2014, whereby the writ petition

filed by the respondent No.1 herein has been allowed

setting aside the proceedings initiated for recovery of

excess payment made to the respondent No.1 and the

consequential order passed therein.

2. Succinctly stated the facts are that the

respondent No.1 has entered into service as a Balawadi

Teacher on 5.12.1979 appointed by CEO, Ex-TDB,

Chikkamagalur, on consolidated salary through District

Employment Exchange Office and Committee

constituted for making such appointment. The

respondent No.2 in terms of the Government Order

dated 4.3.1987 extended the benefit of regular pay scale

for the local candidates. The persons recruited prior to

5.7.1983 on consolidated pay scale were fixed with

minimum pay scale in the cadre with effect from (w.e.f.,)

1.4.1986. The service of the respondent No.1 was

regularized as per the Government Order dated

1.2.1992 w.e.f., 1.1.1990 in the cadre of Second

Division Assistant at Zilla Panchayat, Chikkamagaluru.

The respondent No.1 was promoted from the post of the

Second Division Assistant to the post of the First

Division Assistant in terms of the order dated 30.1.2004

passed by the appellants herein.

3. The Zilla Panchayath has passed an order

extending the minimum pay scale w.e.f., 1.4.1986

referring to the provisions of KCSR Rule 41(A) of the

Rules. In view of certain objections raised by the Office

of the Accountant General, the said order dated

31.3.2009 was withdrawn and consequently, directed

the respondent No.1 to repay the excess amounts paid

by way of arrears of salary. The communication issued

to the respondent No.1 for recovery of the excess

payment of salary made for the period from 1.4.1986 to

December, 2009, as per Annexure-A and the

consequential order passed on 22.10.2013 for recovery

of excess pay and allowances from October 2013 in 44

installments (Annexure-B), were challenged by the

respondent No.1 before the writ Court, the same being

allowed, the Zilla Panchayath has preferred this appeal.

4. Learned counsel appearing for the appellants

placing reliance on the decision of the Coordinate Bench

in the case of K.L.Shivanna v. State of Karnataka

and Others, in W.A.No.1035/2019, disposed of on

2.8.2019, submitted that no regularization with

retrospective effect would have been given to the

respondent No.1. Hence, refixation of pay scale and the

excess of salary paid to the respondent No.1 was rightly

not being in conformity with the settled principles of law

and due to the audit objections raised, the recovery

proceedings were initiated. The learned Single Judge

has failed to appreciate the vital aspect inasmuch as the

service of the respondent No.1 absorbed in the Zilla

Panchayath as per the order dated 6.8.1990 and the

pay fixed in terms of the Government Order dated

4.3.1987, was on a wrong notion. The Ex-TDB/DRDS

employees absorbed in Zilla Panchayath were not

Government servants and their pay and pensionary

benefits requires to be fixed from the date of the

regularization but not retrospectively. Thus sought for

interference of this Court with the order of the learned

Single Judge.

5. Learned counsel appearing for the

respondent No.1 justifying the impugned order

submitted that the persons, who are similarly placed like

that of the respondent No.1 aggrieved by the order dated

2.12.2009 (Annxure-G) had challenged the same before

the Karnataka Administrative Tribunal at Bengaluru in

Application Nos.1980-83/2010 and the same came to be

allowed on 19.4.2011 setting aside the said order dated

2.12.2009. Despite the said order, the appellants have

passed an order on 10.10.2013 for recovery of the alleged

excess payment paid to the respondent No.1 for the

period from 1.4.1986 to December, 2009. Learned

counsel placing reliance on the judgment of the Hon'ble

Apex Court in the case of State of Punjab and others v.

Rafiq Masih (white Washer), reported in 2015(4) SCC

334, submitted that the respondent No.1 was working as

a 'C' Group employee and is now retired. The alleged

excess payment said to have been made in terms of the

notification dated 4.3.1987 was not due to any

misrepresentation made by the respondent No.1, if any

such payment is made mistakenly by the employer in

excess of their entitlement, more particularly for Group

'C' employees, no recovery by the employer is permissible

in law and such employees are protected in terms of

paragraph 18 of Rafiq Masih judgment. Distinguishing

the case of K.L.Shivanna supra, learned counsel

submitted that the challenge made by the respondent

No.1 was only to the recovery proceedings initiated for

the alleged excess payment of salary said to have been

made by the appellants and the consequential orders

passed for recovery of the same. Thus, the learned

counsel submitted that the order passed by the learned

Single Judge deserves to be confirmed.

6. We have heard the learned counsel

appearing for the parties and perused the material on

record.

7. The factual aspects are not in dispute. The

appellants have challenged the order of the learned

Single Judge primarily on the ground that the payment

of excess salary made from 1.4.1986 placing reliance on

the Government Order dated 4.3.1987 being objected by

the audit wing and the State Government having

directed the appellants to take necessary steps for

recovery of the same, the impugned action for recovery

of the excess amount has been initiated as no

regularization of service would have been made with

retrospective effect.

8. Firstly, we are not inclined to accept the

arguments of the learned counsel for the appellants for

the reason that the entire approach of the appellants for

initiating the recovery proceedings was that the excess

amount was paid by applying the Government Order

dated 4.3.1987 mistakenly. It is not in dispute that the

respondent No.1 is a retired Group 'C' employee and the

order dated 2.12.2009 (Annexure-G) was set aside by

the Karnataka Administrative Tribunal in Application

Nos.1980-83/2010 filed by the similarly situated

persons.

9. The Hon'ble Apex Court in the case of Rafiq

Masih supra, has summarized the legal principles in

paragraph 18 as under;

"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:

(i) Recovery from employees belonging to Class-III 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.

(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."

It cannot be gainsaid that the case on hand falls

under clause (i) of I category as aforesaid.

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10. In the case of the Central Silk Board,

Ministry of Textiles and Others v. Smt.Gayathri

Ananth and Others, reported in ILR 2016 KAR

3594, the Coordinate Bench of this Court placing

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

Rafiq Masih has held that the recovery of excess

payment made by the employer to the employee is not

permissible in law, the exception being fraud or

misrepresentation played by the employee-beneficiary.

Another Division Bench of this Court in the case of

Narasing v. The State of Karnataka and others,

reported in (2016) 4 KCCR 2885 referring to Syed

Abdul Qadir v. State of Bihar, reported in 2009 (3)

SCC 475, has observed thus;

"12. It is not in dispute that the appellant was a Group-C employee and given the above principles laid down by the Supreme Court, it would not be permissible

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for the employer to recover the amounts even if it had been paid by mistake. On the other hand, the appellant would emphasize and stress that he was entitled to the same and it was disbursed only after verification of the entitlement or otherwise."

11. In the case of K.L.Shivanna supra, the

order dated 27.4.2012 by which the employment of the

appellant therein was reguairzed by the Chief Executive

Officer was the subject matter, the said order had made

it clear that the benefits will be available to the

appellant therein from the date from which his

employment was regularized. Notwithstanding the said

order a decision was taken to grant regularization with

retrospective effect and considering the same the

learned Single Judge has observed that no provision of

law was pointed out by the employee which would

enable regularization of the service with retrospective

effect. Accordingly, dismissed the writ petition. In the

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writ appeal proceedings, the sole ground urged by the

appellant therein was the breach of the principles of

natural justice in issuing the recovery order. The Co-

ordinate Bench having noted the show cause notice

served on the appellant and the similarly placed

employees observed that the writ Court has exercised

the discretionary jurisdiction under Article 226 of the

Constitution of India in refusing the claim made by the

appellant, the same is not a case for the court to

interfere in the intra court appeal proceedings.

However, the judgment of the Hon'ble Apex Court in

Rafiq Masih, supra was not brought to the notice of the

Court.

12. In the light of the judgment of the Hon'ble

Apex Court in Rafiq Masih supra, which has been

followed in catena of decisions of this Court and

moreover the learned Single Judge having exercised the

discretionary power in allowing the writ petition placing

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

the interest of justice and equity it is not a case for this

Court to interfere with. However, we make it very clear

that in the peculiar facts and circumstances of the case

we have declined to interfere with the order of the

learned Single Judge exercising the discretionary power

and the same shall not be considered as a precedent.

Moreover, the challenge is now with respect to recovery

proceedings initiated against Group 'C' employee, who is

retired.

In the result, the writ appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE nd