Karnataka High Court
Shri Gopashetty Mallikarjun vs State Of Karnataka on 6 March, 2024
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NC: 2024:KHC:9342
WP No. 23166 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 23166 OF 2016 (S-RES)
BETWEEN:
SHRI. GOPASHETTY MALLIKARJUN,
S/O G. SHARANAPPA,
AGED ABOUT 54 YEARS,
EXECUTIVE ENGINEER,
DISTRICT URBAN DEVELOPMENT CELL,
TUMKUR DISTRICT, TUMKUR - 572 101.
...PETITIONER
(BY SRI. VIJAYA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
Digitally signed VIKAS SOUDHA, BANGALORE - 560 001.
by V KRISHNA
Location:
HIGH COURT 2. THE DIRECTOR,
OF
KARNATAKA DEPARTMENT OF MUNICIPAL ADMINISTRATION,
NO.9TH AND 10TH FLOOR,
V.V. TOWER, BANGALORE - 560 001.
3. THE DEPUTY COMMISSIONER,
KOLAR DISTRICT, KOLAR - 563 101.
4. THE DEPUTY COMMISSIONER,
TUMKUR DISTRICT, TUMKUR - 572 101.
...RESPONDENTS
(BY SRI. V. SHIVA REDDY, AGA FOR R1 TO R4)
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WP No. 23166 of 2016
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS RELATING TO ISSUE OF THE IMPUGNED ORDER
DATED 02.03.2016 PASSED BY R-2 AT ANENX-Q AND AFTER
PERUSAL SET ASIDE THE SAME AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the petitioner, who
was appointed on a daily wage basis as an Assistant
Engineer in the Municipality. The petitioner possessed a
bachelor of engineering degree at the time of appointment
on a daily wage basis. Pursuant to directions issued by the
Apex Court, the Government vide order dated 03.04.1986,
extended the pay scale attached to the post to all daily
wage employees. In terms of Government order, the
petitioner's pay scale was fixed in the scale of Rs.1900-
3650/- with effect from 01.01.1988.
2. Respondent No.2, vide impugned endorsement
dated 02.03.2016, has sent a communication to
respondent No.4-Deputy Commissioner notifying the
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anomaly in pay fixation and accordingly directed to
recover the additional financial benefit extended to
petitioner from 01.11.1985 to 31.10.1995.
3. Heard learned counsel for the petitioner and
learned AGA. Perused the impugned order as per
Annexure-Q. I have also given my anxious consideration
to the judgment cited by the learned counsel for the
petitioner in the case of State of Punjab and others vs.
Rafiq Masih (white washer) and others 1.
4. The law laid down by the Apex Court in the
judgment cited supra is squarely applicable to the present
case on hand. The respondents have now resolved to
initiate recovery proceedings on the ground that the
petitioner was not entitled to benefit of additional financial
benefits from 01.11.1985 to 31.10.1995. This action is
resolved to be initiated against the petitioner in 2016.
Records reveals that excess payment is made between
(2015)4 SCC 334
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01.11.1985 to 31.10.1995. The Apex Court, in the above
judgment cited supra, has clearly held that where an
excess amount is paid and there is no misrepresentation
or fault on the part of the employee and if the concerned
employee had no knowledge that the amount that was
paid to him was more than what he was entitled to, the
excess payment paid on account of wrong interpretation of
rule or on account of wrong fixation of pay scale, which is
purely at the ends of department, there can be no
recovery in such cases. In the present case on hand, it is
not the respondents case that the benefit extended to the
petitioner was on account of misrepresentation by the
petitioner. The additional financial benefits are wrongly
extended to the petitioner, though he is not entitled to the
same. As there is no fault or misrepresentation from the
petitioner's side, the respondents cannot initiate recovery
proceedings on the premise that additional financial
benefits were extended to the petitioner, though he is not
legally entitled.
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5. In the light of law laid down by the Apex Court,
it is apparent from the conclusions drawn in Syed Abdul
Qadir vs. State of Bihar2, that recovery of excess payment
cannot be initiated against an employee who was retired
or is about to retire from service. As on the date of
impugned endorsement, the petitioner was at the fag end
of service and had only 5 years of service on hand.
Therefore, this Court is of the view that the respondents
cannot initiate recovery for having paid additional financial
benefit between 01.11.1985 to 31.10.1995. If the
implementation of impugned endorsement is permitted,
serious prejudice would be caused to the petitioner.
6. For the reasons stated supra, this Court
proceeds to pass the following:
ORDER
i. The writ petition is allowed;
(2009) 3 SCC 475
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ii. The impugned order dated 02.03.2016
passed by respondent No.2 as per
Annexure-Q is hereby quashed.
Sd/-
JUDGE
hdk
