Sri T M Nagarajappa vs The State Of Karnataka
2022 Latest Caselaw 8376 Kant

Citation : 2022 Latest Caselaw 8376 Kant
Judgement Date : 8 June, 2022

Karnataka High Court

Sri T M Nagarajappa vs The State Of Karnataka on 8 June, 2022

Bench: S.Sunil Dutt Yadav

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JUNE, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

         WRIT PETITION No.1021/2021(S-RES)

BETWEEN:

SRI T M NAGARAJAPPA
S/O T B MARULAPPA
AGED ABOUT 61 YEARS
WORKING AS RETIRED HEAD MASTER
R/AT NO.974/2B, SIR NILAYA,
BEHIND KEB, POWER HOUSE
GOVINAPURA, TIPTUR
TUMKUR DISTRICT-577201
                                           ... PETITIONER

(BY SRI VIJAYA RAGHAVA SARATHY H, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP BY ITS SECRETARY
       DEPARTMENT OF PRIMARY AND
       SECONDARY EDUCATION
       M S BUILDING
       BENGALURU-560 001

2.     THE COMMISSIONER
       DEPARTMENT OF PUBLIC INSTRUCTIONS
       NRUPATHUNGA ROAD
       K R CIRCLE
       BENGALURU-560 001

3.     THE DIRECTOR
       DEPARTMENT OF PUBLIC INSTRUCTIONS
       NRUPATHUNGA ROAD
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     K R CIRCLE
     BENGALURU-560 001

4.   THE DEPUTY DIRECTOR OF
     PUBLIC INSTRUCTIONS
     (PRIMARY AND SECONDARY EDUCATION)
     TUMKUR DISTRICT
     TUMKUR-572101

5.   THE BLOCK EDUCATION OFFICER
     DEPARTMENT OF PUBLIC INSTRUCTIONS
     TIPTUR TALUK, TIPTUR
     TUMKUR DISTRICT-572201

6.   SRI SHIVA VIDYA SOCIETY ®
     SARTHVALLI VILAGE
     TIPTUR TALUK
     TUMKUR DISTRICT-572211
     REP BY ITS SECRETARY
                                       ... RESPONDENTS

(BY SMT M.C. NAGASHREE, AGA FOR R1 TO R5;
    R6 NOT SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED MEMORANDUM DATED 05.06.2020 ANNEXURE-A AND
MEMORANDUM DATED 16.10.2020 ANNEXURE-B1 AND THE
RECOVER ORDER DATED 30.11.2020 ANNEXURE-C ISSUED BY
THE    RESPONDENT     DEPUTY    DIRECTOR   OF   PUBLIC
INSTRUCTIONS, TUMKUR AND RESPONDENT BLOCK EDUCATION
OFFICER, TIPTUR AS ILLEGAL AND DIRECT THE R-2 TO 5 TO
FORTHWITH SETTLE AND RELEASE ENTIRE PENSIONARY
BENEFITS SUCH LEAVE ENCASHEMENT, DCRG, GRATUITY ETC
TO THE PETITIONER W.E.F 01.01.2020 ALONG WITH INTEREST
FROM THE DATE OF HIS RETIREMENT AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT, MADE THE FOLLOWING:
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                          ORDER

Petitioner has called in question the validity of the

order dated 05.06.2020 at Annexure-A whereby there was a

direction for refixing his salary with effect from 16.10.1993

in the Payscale of Assistant Teacher and to take steps for

recovery of amount paid in excess. Petitioner has also called

in question the order at Annexure-B dated 21.10.2020

which is the consequential order.

2. Petitioner has raised various contentions

including that action against him was sought taking note of

the direction passed against one Krishnappa. It is further

contended that the order as regards the said Krishnappa

has culminated in the order passed in W.P.No.10463/2020

dated 22.07.2021, whereby the recovery was set aside by

relying on the judgment of the Apex Court in the case of

STATE OF PUNJAB VS. RAFIQ MASIH - (2015) 4 SCC 334.

3. Learned Government Advocate has also raised

various contentions.

4. Heard both sides.

5. It is not in dispute that the order at Annexure-A

is passed on 05.06.2020 whereby there is a direction for

refixation of his pay and for recovery of amount paid to the

petitioner consequent to such refixation. It is also relevant

to note that the refixation is to be effected from

16.10.1993.

6. The judgment of the Apex Court in the case of

RAFIQ MASIH (Supra) is clear and unambiguous. The

observations at Paragraph No.18 are as follows:

"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:

(i) Recovery from the employees belonging 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."

7. Admittedly, the petitioner has attained

superannuation on 31.12.2019 and the impugned orders at

Annexures-A and B are passed subsequent thereto.

Accordingly, without entering into the merits of the matter

and in light of no ground being made out that the petitioner

had any role in the payment made to him, in terms of

guidelines Nos. (ii), (iii) and (iv), as laid down in the case of

RAFIQ MASIH (Supra), impugned orders deserve to be set

aside.

8. It is submitted that in light of the interim order

passed by this Court on 20.01.2021, no recovery has been

effected. It is also noted that the terminal benefits have not