Karnataka High Court
Dr. Kasturi Hunashikatti vs The Principal Secretary on 12 January, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-D:820
WP No. 101364 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 101364 OF 2022 (S-RES)
/
BETWEEN:
DR. KASTURI HUNASHIKATTI,
AGE 58 YEARS, OCC SERVICE,
R/O A-PH3 THE SEVEN APARTMENT,
OPP MOHITE SWIMMING POOL,
JADHAV NAGAR, BELAGAVI-590019.
... PETITIONER
(BY SRI. SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY
TO THE GOVT. OF KARNATAKA,
DEPT. OF HEALTH AND FAMILY
WELFARE (MEDICAL EDUCATION),
#105, 1ST FLOOR, VIKAS SOUDHA,
BANGALORE-560001.
2. THE PRINCIPAL SECRETARY
TO THE GOVT. OF KARNATAKA,
HEALTH AND FAMILY WELFARE DEPARTMENT,
1ST FLOOR, VIKAS SOUDHA,
BANGALORE-560001.
3. THE DIRECTOR MEDICAL EDUCATION,
MANJANNA GOVERNMENT OF KARNATAKA,
E ANANDRAO CIRCLE, BANGALORE-560009.
Digitally signed
by MANJANNA E 4. THE DIRECTOR,
Date: 2024.01.18
11:55:44 +0530 BELAGAGVI INSTITUTE OD MEDICAL SCIENCES,
DR. B R AMBEDKAR ROAD, SADASHIV NAGAR,
BELAGAVI -590019.
... RESPONDENTS
(BY SRI. BHOJEGOUDA T.KOLLER, AGA. FOR R1 TO R3;
SRI. VEERESH R.BUDIHAL, ADVOCATE FOR R4)
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NC: 2024:KHC-D:820
WP No. 101364 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
CERTIORARI AND QUASH THE IMPUGNED OFFICE MEMORANDUM
BEARING NO.BIMS/EST/805/2021-22/2233 DATED 18.10.2021 VIDE
ANNEXURE-D SO FAR AS IT RELATES TO THE PETITIONER ISSUED
BY THE RESPONDENT NO.4 DIRECTOR, BIMS, BELAGAVI & ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. An order of recovery which has been made on
the ground that the petitioner was paid excess salary
(increments), which he was not entitled is the subject
matter of challenge in this writ petition.
2. The petitioner was appointed in the year 2008
as Associate Professor.
3. The petitioner was granted an additional
increment in the year 2010. This grant of increment was
objected to by the Auditors in the year 2017 and as a
consequence, the petitioner was issued with show cause
notice and after hearing their objections, the impugned
order of recovery has been passed.
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NC: 2024:KHC-D:820
4. The Supreme Court in the case of State of
Punjab and others Vs. Rafiq Maish (White Washer)
and others, held 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 t
he 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
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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."
5. Admittedly, even according to the University,
the petitioner was granted an excess increment without
there being any false misrepresentations on his behalf.
Furthermore, the excess payment had been made for over
a period of five years and more importantly, the recovery
is ordered when the petitioner was on the verge of
retirement i.e., he has due to retirement within a year.
6. In the light of the judgment of the Supreme
Court, which has also been followed in the latest judgment
of the Supreme Court in the case of Thomas Daniel Vs.
Sate of Kerala & Ors. in Civil Appeal No.7115/2010,
disposed off on 02.05.2022, it is clear that the order of
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NC: 2024:KHC-D:820
recovery made against the petitioner who was on the
verge of retirement and who had received the excess
increments for over five years, without there being any
misrepresentation on his behalf, cannot be sustained.
Accordingly, the impugned order is quashed.
Sd/-
JUDGE
Vnp*
