Karnataka High Court
Dr. Sahnmukh T. Kalsad 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:821
WP No. 102414 of 2023
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. 102414 OF 2023 (S-RES)
BETWEEN:
DR. SAHNMUKH T. KALSAD,
AGE. 62 YEARS, OCC. RETIRED
R/O. BELAGAVI.
... PETITIONER
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY
TO THE GOVT. OF KARNATAKA,
DEPARTMENT OF HEALTH & FAMILY WELFARE
(MEDICAL EDUCATION),
MANJANNA #105, 1ST FLOOR,
E
VIKAS SOUDHA,
Digitally signed BANGALORE-560001.
by MANJANNA E
Date: 2024.01.17
16:57:19 +0530
2. THE PRINCIPAL SECRETARY TO THE
GOVT. OF KARNATAKA,
HEALTH & FAMILY WELFARE,
1ST FLOOR, VIKAS SOUDHA,
BENGALURU-560001.
3. THE DIRECTOR,
MEDICAL EDUCATION,
GOVERNMENT OF KARNATAKA,
ANANDRAO CIRCLE,
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NC: 2024:KHC-D:821
WP No. 102414 of 2023
BANGALORE-560009.
4. THE DIRECTOR,
BELAGAVI INSTITUTE OF MEDICAL SCIENCES,
DR. B.R. AMBEDKAR ROAD,
SADASHIV NAGAR, BELAGAVI-590019.
5. THE CHIEF ACCOUNTS OFFICER-CUM-FINANCIAL
ADVISER, BELAGAVI INSTITUTE OF MEDICAL
SCIENCES, DR. B.R. AMBEDKAR ROAD,
SADASHIV NAGAR,
BELAGAVI-590019.
... RESPONDENTS
(BY SRI. BHOJEGOUDA T. KOLLER, AGA FOR R1-R3;
SRI. VEERESH R. BUDHIHAL, ADVOCATE FOR R4;
R5-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRYAING TO
ISSUE A WRIT OR CERTIORARI AND QUASH THE
IMPUGNED OFFICE ORDER BEARING
NO.©ªÀiïì/¹§âA¢/(1)/1307/2021-22 DATED 14/02/2022
VIDE ANNEXURE-C PASSED BY THE FOURTH RESPONDENT
DIRECTOR AND DEAN, BIMS, BELAGAVI, AS SO FAR
PETITIONER CONCERNED AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 102414 of 2023
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 this writ
petition.
2. The petitioner was appointed in the year 2009 as
Professor.
3. The petitioner was granted an additional increment.
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 the petitioner submitted his
explanation. The petitioner thereafter attained the age of
superannuation on 30.06.2020 but his services were continued
till 30.09.2020 when he was permitted to retire. On
18.10.2021, an order was issued directing recovery of excess
increments granted to the petitioner and as a consequence, an
office memorandum dated 14.02.2022 has been passed by
which a sum of Rs.14,07,797/- is ordered to be recovered from
the petitioner, which is impugned in this petition. This has been
followed by another order dated 25.03.2022, which is also
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impugned in this petition. Ultimately, an order is passed on
03.11.2022 calling upon the petitioner to remit the sum within
seven days. It is clear that the recovery proceedings have been
initiated after the petitioner retired from service.
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 Cla
ss 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.
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(iv) Recovery in cases where an employee has wr
ongfully 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."
5. Admittedly, even according to the University, the
petitioner was granted 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 in respect of the
petitioner after he had retired.
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 recovery made against
the petitioner who had retired and who had received the excess
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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*/CT:BCK
