Karnataka High Court
The Director General vs Smt R Jayashree on 28 February, 2024
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2024:KHC:8271-DB
WP No. 26748 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO. 26748 OF 2023 (S-CAT)
BETWEEN:
1. THE DIRECTOR GENERAL,
AIR, PRASAR BHARATI,
AKASHVANI BHAWAN,
SANSAD MARG,
NEW DELHI-110 001.
2. THE DIRECTOR GENERAL,
(THROUGH CHIEF ENGINEER)
CCW, 6TH FLOOR,
SOOCHANA BHAVAN,
Digitally signed
CGO COMPLEX,
by K S LODI ROAD, NEW DELHI-110 003.
RENUKAMBA
Location: HIGH
COURT OF 3. THE EXECUTIVE ENGINEER (CIVIL),
KARNATAKA CIVIL CONSTRUCTION WING (CIVIL),
ALL INDIA RADIO AND DOORDARSHAN,
J.C. NAGAR, BANGALORE-560 006.
4. THE PAY AND ACCOUNTS OFFICER,
OFFICE OF PAY AND ACCOUNTS OFFICE,
DOORDARSHAN KENDRA,
SWAMY SIVANANDA SALAI,
CHENNAI-600 005.
...PETITIONERS
(BY SRI. JAYAKARA SHETTY.H, ADVOCATE)
-2-
NC: 2024:KHC:8271-DB
WP No. 26748 of 2023
AND:
SMT. R. JAYASHREE,
W/O SUNIL,
AGED ABOUT 63 YEARS,
RETIRED AS STENOGRAPHER GRADE-I,
O/O EXECUTIVE ENGINEER (CIVIL),
ALL INDIA RADIO DOORDARSHAN COMPLEX,
J.C. NAGAR, BNAGALORE-560 001,
RESIDING AT: NO.79, "SAIKRUPA",
1ST CROSS, 1ST MAIN,
AKSHAY NAGAR, (KIDWAL COLONY),
BEGUR HOBLI, BANGALORE-560 068.
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS FROM THE HONBLE CAT BANGALORE
WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED
ORDER ANNEXURE-A DATED 06.04.2023 MADE IN O.A No-
170/00397/2021 BY THE HONBLE CAT BANGALORE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, RAJESH RAI K, J., MADE THE
FOLLOWING:
ORDER
Though this matter is listed for preliminary hearing, the
matter is taken up for final disposal.
For the order proposed, notice to the respondent is
dispensed with.
2. In this writ petition, the union of India has
challenged the legality and correctness of the order passed in
Original Application No.170/00397/2021 dated 06.04.2023 by
NC: 2024:KHC:8271-DB
the Central Administrative Tribunal, Bangalore (for short 'the
Tribunal'), wherein the tribunal allowed the Original Application
filed by the respondent herein and consequently, directed the
petitioners to refund the amount of Rs.2,54,401/- to the
respondent in an expedite manner, in any event not later than
eight weeks form the date recipe of the certified copy of the
order.
3. The brief facts which are relevant for disposal of
this writ petition are that:
The respondent herein was working as Stenographer-II
and retired form service with effect from 31.07.2020 at O/O
Executive Engineer (Civil) All India, Radio & Doordarshan,
Bangalore - 560 006. During the year 2006, the respondent
was working as stenographer-I and 6th CPC recommended the
pay scale of steno Grade II PB2 9300-34800 with grade pay of
Rs.4200/-. The Prasar Bharati (Board Casting Corporation of
India) communicated the fixation of pay to the respondent on
01.01.2006. Posteriorly on 11.03.2014, the Prasar Bharati
communicated the order that subject of wrong fixation of pay -
recovery was referred to Ministry of Information and Broad
Casting and thereby, the Executive Engineer (Civil) All India,
NC: 2024:KHC:8271-DB
Radio & Doordarshan, J.C.Nagar, Bangalore - 560 006,
endorsed a copy to the respondent regarding refixation of pay
and recovery. However, the respondent submitted a
representation to that effect on 07.05.2014, followed by other
reminder/representation. However, the Prasar Bharati
Secretariat, New Delhi vide order dated 18.06.2015 issued
instructions/clarification. Subsequently, the said order dated
18.06.2015 was ordered to be kept in abeyance vide order
dated 11.08.2015. The respondent was informed that
Rs.2,54,401/- has to be recovered from her DCRG towards
excess drawn pay and allowance vide letter on 09.10.2020.
Subsequent to the retirement of the respondent on 31.07.2020,
since her DCRG amount was not released, she credited
Rs.2,54,401/- through Bank draft on 18.12.2020. Hence,
aggrieved by the said action of the petitioners, the respondent
approached the Tribunal to quash the order of the Executive
Engineer (Civil) All India, Radio & Doordarshan, J.C.Nagar,
Bangalore - 560 006 passed in letter No.CCW(B)/13 (2) 2020
(S) dated 09.12.2020 as per Annexure-A11 to the Original
Application and also to direct the petitioners to refund
Rs.2,54,401/- credited by her on 18.12.2020 as per Annexure-
NC: 2024:KHC:8271-DB
A12 to the Original Application. The Tribunal, after considering
the facts and circumstance of the case, allowed the Original
Application filed by the respondent vide order dated 06.04.2023
as stated supra. The validity of the said order is challenged
under this writ petition.
4. We have heard Sri Jayakara Shetty.H, learned
counsel for the petitioners.
5. Learned counsel for the petitioners would contend
that the impugned order passed by the Tribunal is illegal and
unsustainable and the Tribunal has wrongly appreciated the
dictum laid down by the Hon'ble Apex Court in the case of
State of Punjab & Ors vs. Rafiq Mashi (White Washer)
reported in (2015) 4 SCC 334. According to the learned
counsel, on careful perusal of the dictum laid down by the
Hon'ble Apex Court in the aforesaid case, the same is
applicable only in respect to recovery from employees
belonging to Class III and Class IV service (or Group 'C' and
Group 'D' service) but the respondent belongs the Group 'B'
employee. Hence, the respondent cannot take shelter by virtue
of the law laid down by the Hon'ble Apex Court in the aforesaid
NC: 2024:KHC:8271-DB
case. He would further contend that the Tribunal failed to
appreciate that the respondent was retired from service on
31.07.2020. However, the pay of the respondent was first
upgraded in the pre-revised scale to Rs.6500-10500 and then
revised under 6th CPC vide fixation statement dated 21.01.2013
and the respondent was intimated about the excess payment
vide order dated 29.04.2014 itself and she was further
informed vide memorandum dated 20.01.2017 to refund the
excess payment which she did not oblige till her retirement.
Hence, the law laid by the Hon'ble Apex Court in Rafiq Masih's
case does not applicable to the case of the respondent. He
would also contend that the petitioners have taken steps to
recover the excess amount way back in the year 2013 itself but
the respondent herself has not bothered to refund excess
amount and hence, she committed default and now it is not
open for the respondent to contend that the petitioners are not
taken steps to recover the excess amount at the time of her
retirement. He further submits that the Tribunal failed to
appreciate these aspects of the matter. To buttress his
argument, he relied on the judgment in the case of Thomas
Daniel vs. State of Kerala & Ors reported in 2022 LiveLaw
NC: 2024:KHC:8271-DB
(SC) 438. Accordingly, he prays to issue a writ of certiorari or
any other appropriate order or direction to quash the order
dated 06.04.2023 made in Original Application
No.170/00397/2021 by the Tribunal.
6. We have perused the documents made available
before us including the impugned order passed by the Tribunal
so also carefully considered the submissions made by the
learned counsel for the petitioners so also the judgment relied
by the learned counsel for the petitioners.
7. The learned counsel for the petitioners vehemently
contend by emphasizing Annexure-A3 dated 29.04.2014 and
Annexure-R8 dated 20.01.2017 to the Original Application, to
prove that the excess amount made to the respondent was
intimated her and was informed her to refund the excess
payment. In spite of that no effective steps were taken for
recovery of the excess payment made from 2014.
8. On careful perusal of Annexure-A3 i.e., the letter
addressed by the Executive Engineer to the respondent, the
same depicts that "Pay fixation will be re-checked and over
payment if any, shall be refunded". Further, on perusal of
NC: 2024:KHC:8271-DB
Annexure-R8 addressed by the Executive Engineer, the same
discloses that "consequent on fixation of pay as on 01.01.2006
pursuant to 6th pay commission recommendations the excess
drawn pay & allowances for the period from 01.01.2006 to
30.01.2014 has to be recovered and a compliance report
regarding refixation of pay as well as action taken for recovery
has to be furnished by the Head of Office to the competent
authority within 15 days from the date of recipe of letter. The
excess drawn amount for the above period works out to
Rs.2,70,904/-. The amount may be refunded to this office."
9. The above letters issued by the petitioners'
authority clearly depicts that the respondent had no such
knowledge that the payment received was in excess of what
was due or wrongly paid, or in cases where error is detected or
corrected within a short time or wrong payment, as laid down
by the Hon'ble Apex Court in the judgment relied by the
learned counsel for the petitioner i.e., Thomas Daniel's case
supra, since the petitioners failed to prove the said aspect that
the petitioners received the excess amount with due
knowledge.
NC: 2024:KHC:8271-DB
10. Per contra, it is only at the time of her retirement
from service on attaining the age of superannuation, coercive
recovery method was adopted by the petitioners' authority. The
letter dated 09.12.2020 as per Annexure-A11 to the application
indicates that DCRG bill for Rs.13,91,891/- though is ready for
payment was withheld, as an amount of Rs.2,54,401/- was due
for recovery from DCRG towards excess drawn pay and
allowance. A condition was imposed to send the Demand Draft
in favour of Executive Engineer (C), AIR & TV, Bangalore for
the release of withheld amount of Rs.13,91,891/. Hence, the
respondent was constrained to credit the said amount of
Rs.2,54,401/- to receive the gratuity amount withheld. Hence,
on perusal of the same, it is patently clear that the petitioners
have taken coercive steps to recovery the amount from the
retrial benefits at the time of retirement of the respondent, for
the mistake committed by the petitioners themselves.
11. In such circumstance, the Tribunal has rightly
passed by the impugned order by relying on the judgment of
the Hon'ble Apex Court in the case of Rafiq Masih's case supra
wherein the Hon'ble Apex Court, in paragraph No.18, held as
under:
- 10 -
NC: 2024:KHC:8271-DB
"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."
12. By applying the principles laid down by the Hon'ble
Apex Court to the case on hand, we are of the considered view
- 11 -
NC: 2024:KHC:8271-DB
that the dictum laid down by the Hon'ble Apex Court in the
above case squarely applies to the case on hand and the
Tribunal has rightly passed the impugned order, which does not
call for any interference at the hands of this Court. Accordingly,
we answer the point raised above in the negative and proceed
to pass the following:
ORDER
i) The writ petition, being devoid of merits, is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
VM
