Karnataka High Court
K Chikkathimmegowda vs The Bangalore Electricity on 10 January, 2024
-1-
NC: 2024:KHC:1342
WP No. 8118 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 8118 OF 2018 (S-RES)
BETWEEN:
K CHIKKATHIMMEGOWDA
S/O LATE SRI VENKATEGOWDA,
AGED ABOUT 63 YEARS,
SENIOR CITIZEN BENEFIT NOT CLAIMED
FORMERLY WORKING AS SENIOR ASSISTANT
BESCOM, AND RESIDING AT NO.4,
VEERABHADRASWAMY EXTENSION
BEHIND KEROSENE DEPOT,
MYSORE ROAD, KANAKAPURA,
RAMANAGARA DISTRICT-562 117
...PETITIONER
(BY SRI. SUBRAMANYA BHAT M, ADVOCATE)
Digitally AND:
signed by
ALBHAGYA
Location: 1. THE BANGALORE ELECTRICITY
HIGH SUPPLY COMPANY LIMITED,
COURT OF
KARNATAKA REPRESENTED BY THE MANAGING
DIRECTOR, K R CIRCLE,
BANGALORE-01
2. THE CHIEF GENERAL MANAGER
(FINANCE AND COMMERCIAL)
PENSION SECTION
BANGALORE ELECTRICITY
SUPPLY COMPANY LIMITED
K R CIRCLE, BANGALORE-01
-2-
NC: 2024:KHC:1342
WP No. 8118 of 2018
3. SUPERINTENDING ENGINEER (ELE)
T.T.M.C. BUILDING BESCOM,
RAMANAGARA CIRCLE, KENGERI,
MYSORE ROAD, BANGALORE-60
4. THE EXECUTIVE ENGINEER
BESCOM, RAMANAGAR DIVISION,
(NOW KANAKAPURA DIVISION)
SANGAM ROAD, KANAKAPURA-562 117
...RESPONDENTS
(BY SRI. RAVINDRA REDDY, ADVOCATE FOR R1 TO R4)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS PERTAINING TO THE CASE OF THE PETITIONER AND
QUASH OFFICIAL MEMORANDUM DATED 4.7.2014 ISSUED BY
R-4 VIDE ANNEX-B AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the retired
employee of the respondent-Company, who has knocked
the doors of the writ Court feeling aggrieved by the
impugned official memorandum dated 4.7.2014 issued by
respondent No.4 vide Annexure-'B' in re-fixing the pay
scale of the petitioner and consequently ordering recovery
of a sum of Rs.2,19,479/- out of DCRG payable to the
petitioner.
NC: 2024:KHC:1342
2. The facts leading to the case are as under:
The petitioner was appointed in Karnataka Electricity
Board as Daftary on 4.4.1977 and was promoted as Junior
Assistant on 13.2.1989. The petitioner was issued with a
charge sheet alleging unauthorized absence of 240 days
from 8.6.1987. Petitioner claims that after due enquiry,
he was exonerated of the charges. The Disciplinary
Authority accordingly passed an order in that regard on
20.12.1989. On 2.10.2021, the petitioner was promoted
as Assistant and later he was promoted as Senior
Assistant on 11.2.2008. The Accounts Officer(Internal
Audit) passed the official memorandum dated 9.11.2009
re-fixing the pay of the petitioner from the date the initial
appointment by adding Rs.10/- to his basic pay.
3. The petitioner has further stated that similarly
placed employees approached this Court and the basic pay
of all the employees was increased by granting one
increment of Rs.10/-. Pursuant to the order passed by
this Court, petitioner's pay was also re-fixed and his basic
NC: 2024:KHC:1342
pay was increased from Rs.310/- to Rs.320/- w.e.f.
4.4.1977. Petitioner retired from service on attaining the
age of superannuation from the post of Senior Assistant on
30.6.2014.
4. The grievance of the petitioner is that
respondents without issuing any notice or affording any
opportunity withdrew the pay fixation, which was done on
9.11.2009 and the respondents in gross-violation of the
principles of natural justice have re-fixed the petitioner's
pay which is detrimental to the interest of the petitioner.
Petitioner is also aggrieved by the order of recovery
passed by respondents in a sum of Rs.2,19,479/-.
5. Heard the learned counsel for the petitioner and
the learned counsel appearing for respondents. Perused
the material on record.
6. On perusal of Annexure-B, it is clearly evident
that respondents have unilaterally re-fixed the pay of the
petitioner on the ground that re-fixation of the petitioner's
NC: 2024:KHC:1342
pay scale in 2009 was done without taking cognizance of
the unauthorized absence of the petitioner. While in the
statement of objections, respondents claim that petitioner
was not eligible for re-fixing the pay scale as he has not
completed 20 years of service as on 1989 for want of
qualifying service. The respondent for the first time in the
statement of objections have virtually raised a new
defence, which is not indicated in the impugned order at
Annexure-B while re-fixing the pay scale of the petitioner.
On this short point, the impugned order as per Annexure-B
is liable to be set aside.
7. Insofar as the recovery initiated by
respondents, the law in that regard is no more resintegra.
The Apex Court in catena of judgments as well as this
Court have consistently held that the
management/Department cannot initiate recovery
proceedings on the ground that fixation of pay scale was
faulty or erroneous provided the said fixation was at the
instance of the employee on account of misrepresentation.
In the present case on hand, it is not the case of the
NC: 2024:KHC:1342
respondents that the fixation of pay scale of the petitioner
in 1989 was on account of mis-representation by the
petitioner. The principles laid down by the Apex Court in
the case of State of Punjab and Others .vs. Rafiq
Masih (White Washter) and others1 are squarely
applicable to the present case on hand. It is borne out
from the records that the petitioner retired from service
having attained the age of superannuation on 30.6.2014.
Therefore, in the light of the principles laid down by the
Supreme Court in the judgment cited supra, the
respondents could not have initiated recovery proceedings.
The respondents have also recovered a sum of
Rs.2,19,479/- from the DCRG payable to the petitioner.
The Government notification dated 1.12.1987, which is
placed on record by the learned counsel for the petitioner
specifies 10% simple interest payable by the employer to
the employee in case the gratuity is not paid within the
specified period. The retirement benefits which was
legally due to the petitioner was withheld and was
(2015) 4 SCC 334
NC: 2024:KHC:1342
recovered by the respondents and therefore, the
respondents are bound to pay an amount of Rs.2,19,479/-
with interest at the rate of 10% per annum.
8. For the reasons stated supra, the impugned
official memorandum dated 4.7.2014 having been passed
in gross violation of the principles of natural justice is
liable to be quashed. The matter requires re-consideration
and the authorities are bound to issue notice and
thereafter take appropriate action.
9. In view of the above observations, I proceed to
pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The official memorandum dated
4.7.2014 issued by respondent No.4 vide
Annexure-B is hereby quashed and the matter
stands remitted back to respondents 3 and 4 for
re-consideration of the issue relating to re-
fixation of the petitioner's pay scale;
(iii) It is made clear that respondents 3
and 4 shall afford a reasonable opportunity to
NC: 2024:KHC:1342
the petitioner and thereafter proceed to pass
appropriate orders in accordance with law, within
a period of six months from the date of receipt of
copy of this order;
(iv) Insofar as recovery proceedings vide
Annexure-D initiated by respondent No.2
pursuant to the impugned official memorandum
as per Annexure-B, seeking recovery of a sum of
Rs.2,19,479/- from the DCRG payable to the
petitioner is hereby quashed.
(v) Consequently, respondents 3 and 4
are hereby directed to pay the sum of
Rs.2,19,479/- which was withheld pursuant to
the official memorandum with interest at the rate
of 10% per annum, within a period of three
months from the date of receipt of a copy of this
order.
Sd/-
JUDGE
ALB
