Narayan Vithalsa Kabadi vs The State Of Karnataka
2022 Latest Caselaw 723 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 17TH DAY OF JANUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

 WRIT PETITION NOS. 72539-541 OF 2012 (S-R)

BETWEEN:
1.     NARAYAN VITHALSA KABADI
       SINCE DEAD BY HIS LRS.
(a)    SMT. LEELABAI W/O. NARAYANSA KABADE @ KABADI,
       AGE: 62 YEARS, OCC: HOUSEHOLD.
(b)    SHRI. GOVINDRAJU S/O. NARAYANSA KABADE @ KABADI,
       AGE: 45 YEARS.
(c)    SUNITA W/O. ANIL MEHARWADE,
       AGE: 43 YEARS, OCC: HOUSEHOLD.
(d)    RAVI S/O. NARAYANSA KABADE @ KABADI,
       AGE: 40 YEARS, OCC: BUSINESS.
(e)    SMT. LAXMI W/O. PANDURANGSA HABIB,
       AGE: 40 YEARS, OCC: HOUSEHOLD.
       ALL ARE RESIDENT OF ARVINDNAGAR, HUBBALLI,
       TQ: HUBBALI, DIST: DHARWAD.

2.     MANJUNATH PANDURANG NAIK
       AGE: 72 YEARS, OCC: RETIRED,
       R/O: ARVINDNAGAR, HUBLI.
3.     VADIRAJ S/O. BODHARRAO MAHISHI
       AGE: 67 YEARS, OCC: RETIRED,
       R/O: MIG 105, 4TH NAVANAGAR,
       HUBLI-25.
                                            ... PETITIONERS
(BY SRI. S. N. RAJENDRA, ADVOCATE)
                           :2:



AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF HOUSING AND URBAN
       DEVELOPMENT, M.S. BUILDING,
       BENGALURU - 01.

2.     THE HUBLI DHARWAD MUNICIPAL CORPORATION
       REPRESENTED BY ITS COMMISSIONER,
       HUBLI-20.

3.     THE ASSISTANT COMMISSIONER(ADMINISTRATION)
       HUBLI DHARWAD MUNICIPAL CORPORATION,
       HUBLI-20.

4.     THE CHIEF AUDITOR
       HUBLI DHARWAD MUNICIPAL CORPORATION,
       HUBLI.

5.     THE CHIEF ACCOUNTS OFFICER
       HUBLI DHARWAD MUNICIPAL CORPORATION,
       HUBLI.
                                        ... RESPONDENTS
(BY SRI. SHIVAPRABHU S. HIREMATH, AGA FOR R1
 SRI. G. I. GACHCHINAMATH, ADV. FOR R2 TO R5)

     THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO 1. QUASH
THE ORDER DATED 26.11.2012 ISSUED BY THE RESPONDENT
NO.2PRODUCED AT ANNEXURE-Y AND 2. DIRECT THE
RESPONDENTS TO PAY THE INTEREST @ 18% P.A. FROM THE
DATE OF WITHHOLDING TILL REALIZATION ON THE
WITHHOLDED AMOUNT.

     THESE PETITIONS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
                                 :3:


                               ORDER

The petitioners have challenged an order dated

26.11.2012 passed by the respondent No.2 by which he

held that the petitioners had wrongly availed the selection

time scale and therefore ordered re-fixation of pay scale

after withdrawing the selection time scale wrongly granted

to the petitioners and directed recovery of the excess salary

paid to the petitioners.

2. The petitioners were appointed as Audit clerks on

30.10.1964, 05.12.1966 and 12.12.1966 in the scale of

Rs.80-150 and retired on 31.05.1998, 30.09.1999 and

31.03.1998 respectively.

3. It is claimed that the next promotion post was

Auditor and the scale of pay applicable to the post of

Auditor was 110-220. The respondent No.1 in order to

eradicate and also to revise the pay scale of various posts,

appointed Tukol pay commission. On the basis of the pay

commission report, the respondent No.1 resolved to

rationalize the pay scale. In view of the same, the

employees of the respondent No.2 submitted a

representation to extend the same benefits to them. The

respondent No.2 accepted the request and implemented the

revision of pay scale with effect from 01.01.1970.

4. The petitioners alleged that the nature of work of

both Audit Clerks and Auditors were one and the same and

therefore in view of the adoption of the pay scales as

revised under the Tukol pay commission, the respondent

No.2 took a decision to grant a common pay scale to both

the post of Audit Clerk and Auditor. This was by a

resolution dated 09.05.1974. The benefit of this resolution

was extended from the date of the resolution rather than

the date on which the date on which the pay scale as per

Tukol Commission was extended to the employees of

respondent No.2. Therefore, a representation was made to

the respondent No.2 to correct this anomaly. The

respondent No.2 accepted the same by a resolution dated

19.02.1975 and extended the financial benefit with effect

from 1.1.1970.

5. In October-1975 an Administrator was appointed

to the respondent No.2 who took a contrary opinion that

financial benefits cannot be given retrospectively and

decided to withdraw it and recover the excess payment

made to the petitioners. This was challenged by the

petitioners before this Court in W.P. No.6328/1975. This

Court in terms of the order dated 1.1.1982 allowed the writ

petition and held that the resolution passed by the

Administrator was illegal and hence quashed the same.

6. In the meanwhile, the respondent No.1 issued an

official memorandum dated 22.2.1973 granting the benefit

of a selection time scale of pay to those employees who had

worked continuously for more than 10 years in the same

post without any promotion. The respondent No.2 passed

an order on 24.10.1975 and granted the selection time

scale pay of Rs.160-320 from the date of the petitioners

completing 10 years service respectively. The petitioners

claimed that they were entitled to the selection time pay

scale as they had put in more than 10 years of service as

Audit Clerks/Auditors.

7. The respondent No.2 raised an objection for

extending the selection time scale of pay to the petitioners

and passed a resolution on 8.4.1993 and referred the case

to the Controller of State Accounts. The Controller of State

Accounts confirmed that the grant of the selection time

scale of pay was proper and legal. He however indicated

that for any further clarification the respondent No.2 may

approach the State Government. The State Government in

turn opined by its letter dated 07.09.1998 that the opinion

of the Controller of State Accounts was correct. Therefore,

the petitioners drew their salary as per the pay scale in the

selection time pay scale till their retirement.

8. After their retirement, they persuaded the

respondent No.2 to settle and release the retirement

benefits. The State Government passed an order on

2.1.2003 stating that it had withdrawn its opinion dated

7.9.1998. The respondent No.2 once again re-fixed the

salary of the petitioners after withdrawing the selection time

scale of pay granted to the petitioners. Being aggrieved by

this, the petitioners filed WP. NO.28281/2003. This Court

allowed the writ petition and observed that the respondents

were at liberty to recover the excess payment if any made

to the petitioners only after providing an opportunity of

being heard. Thereafter, the respondent No.2 issued a

show cause notice dated 9.1.2008 which was objected by

the petitioners. The respondent No.3 after lapse of nine

months issued orders to recover the excess paid terminal

benefits without awaiting the order that could be passed by

the respondent No.2. The petitioners again approached this

Court in W.P. No.31318/2008 challenging the endorsement

issued by respondent N o.3. This Court allowed the writ

petition and set aside the endorsement. The petitioners

were thereafter notified again and they submitted their

reply. The respondent No.2 without considering the

detailed reply submitted by the petitioners, passed an order

dated 26.11.2012 rejecting the reply of the petitioners and

ordered re-fixation after withdrawing the selection time

scale of pay and to take action for recovery.

9. Being aggrieved by the aforesaid, the petitioners

have filed this writ petition.

10. The learned counsel for the petitioners submitted

that the merger of the pay scale of Audit Clerks and

Auditors in view of Tukol pay commission was upheld by

this Court in W.P. No.6328/1975. He contended that the

impugned order was contrary to the order passed by the

respondent No.2 on 24.10.1975 by which the respondent

No.1 and his predecessors had clarified that in order to get

the benefit of selection time scale of pay, a government

servant had to satisfy clause (ii) of official memorandum

dated 22.02.1973 and clause (c) and (e) of the order of the

respondent No.2 dated 24.10.1975. He submitted that

since a common scale was fixed for both the cadre with

effect from 1.1.1970, the selection time scale of pay was

granted to them as they fulfilled the condition of 10 years in

the same scale. He also contended that the Apex Court in

the case of State of Punjab and others Vs. Rafiq Masih

and others (2015) 4 SCC 334 had fixed the guidelines to

recover the alleged excess salary and that the action of

respondent No.2 was illegal.

11. Per contra, the learned counsel for the

respondent No.2 to 5 submitted that the petitioners were

aware that they were not entitled to the selection time

scale of pay as they were granted the higher scale of pay

applicable to the post of an Auditor. It is submitted that the

petitioners had continued to withdraw the higher scale of

pay fraudulently and therefore the excess salary paid was

liable to be recovered. He relied upon the judgments of the

Apex Court in Chandi Prasad Uniyal and others Vs.

State of Uttarakhand and others (2012) 8 SCC 417.

12. It is not in dispute that a common pay scale was

sanctioned to both the posts of Audit Clerks and Auditors,

by a resolution dated 09.05.1974. Nonetheless, the

petitioners continued as Audit Clerks until a selection time

scale was introduced by which all those employees who

stagnated in the same post for 10 years were granted an

additional increment. Accordingly, the petitioners were

granted the additional increment until their retirement on

31.05.1998, 13.09.1999 and 31.03.1998 respectively.

However, the action to recover the alleged excess salary

was initiated on 2.1.2003. The petitioners all held group C

post. Therefore, without going to the merits of the case, it

is appropriate that this writ petition is disposed off in terms

of the judgment of the Supreme Court in Rafiq Masih

referred above, where the Hon'ble Supreme Court after

referring to the judgment in Chandi Prasad Uniyal as held

as follows:

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:

(i) Recovery from the employees beonging to Class III and Class IV service (or Group C and Group D service).

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

(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.

(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.

13. Consequently, this writ petition is allowed. The

impugned order passed by the respondent No.2 dated

26.11.2012 (Annexure-Y) is quashed. Consequently, the

order dated 4.2.2013 passed by the respondent No.4 in so

far as it is relates to petitioner Nos. 2 and 3 (Annexure Z2

and Z3) are also quashed.

14. Consequently, the respondent is directed to

release the retirement benefits to the petitioners within a

period of three months from the date of receipt of a

certified copy of this order.

Sd/-

JUDGE

SMM