Union Of India vs Sri. G Suresh
2024 Latest Caselaw 25985 Kant

Karnataka High Court

Union Of India vs Sri. G Suresh on 4 November, 2024

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                                       WP No. 12683 of 2024




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 4TH DAY OF NOVEMBER, 2024
                                          PRESENT
                        THE HON'BLE MR JUSTICE KRISHNA S DIXIT
                                             AND
                            THE HON'BLE MR JUSTICE C M JOSHI
                        WRIT PETITION NO. 12683 OF 2024 (S-CAT)
                   BETWEEN:

                   1.   UNION OF INDIA,
                        REPRSENTED BY SECRETARY
                        DEPARTMENTOF POSTS(P A WING)
                        DAK BHAVAN, NEW DELHI - 110 001.

                   2.   GENERAL MANAGER (PA & F)
                        KARNATAKA CIRCLE, 3RD FLOOR,
                        BANGALORE GPO BULIDING,
                        BANGALORE - 560 001.

                   3.  ACCOUNTS OFFICER
                       O/O CONTROLELER OF COMMUNICATION ACCOUNTS
                       KARNATAKA CIRLCE, AMENITY BLOCK,
                       PALACE ROAD, BANGALORE - 560 001.
Digitally signed                                          ...PETITIONERS
by SHARADA
VANI B             (BY SRI. JAYAKARA SHETTY H.,ADVOCATE)
Location: HIGH
COURT OF           AND:
KARNATAKA
                   SRI.G SURESH,
                   S/O LATE SRI M K GANAPATHYAPA,
                   AGED ABOUT 61 YEARS,
                   RETIRED SENIOR ACCOUNTS OFFICER,
                   (WAS WORKING AT O/O CONTROLLER OF
                   COMMUNICAITON ACCUONTS)
                   R/AT NO 25, PANCHAJANYA,
                   NEAR M S RAMAIAH COLLEGE, KRUSHINAGAR,
                   SOULANGA ROAD,SHIMOGA - 577 201.
                                                              ...RESPONDENT
                   (BY SRI.S V PRAKASH.,ADVOCATE)
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                                   NC: 2024:KHC:44022-DB
                                   WP No. 12683 of 2024



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR RECORDS FROM THE HON'BLE CAT, BANGALORE WHICH
ULTIMATELY RESULTED IN PASSING THE IMPUGNED ORDER
ANNEXURE-A DATED 07.03.2024 MADE IN OA. No-
170/436/2022 BY THE HONBLE CAT BANGALORE AND B) ISSUE
AN ORDER, DIRECTION WRIT IN THE NATURE OF WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE ORDER, DIRECTION
WRIT QUASHING THE ORDER DATED 07.03.2024 ANNEXURE-A
MADE IN OA No-170/436/2022 BY THE HONBLE CAT
BANGALORE.

     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:

CORAM:    HON'BLE MR JUSTICE KRISHNA S DIXIT
          and
          HON'BLE MR JUSTICE C M JOSHI

                     ORAL ORDER

(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

The Central Government accompanied by officials, is

knocking at the doors of Writ Court for assailing the

Central Administrative Tribunal's order dated 7.3.2024

whereby, respondent's OA No-170/436/2022 having been

favoured, inter alia the following direction has been

issued:

"b) The respondents are directed to refund the balance amount of Rs.82,939/- to the applicant, after adjusting the amount of Rs.1,14,326/- already paid to the applicant under Annexure A-14 towards 3rd MACP, from

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the recovered amount of Rs.1,97,265/- as under

Annexure A-13. The said amount of Rs.82,939/- shall be refunded to the applicant in an expedite manner in any event not later than eight weeks form the date of the receipt of a certified copy of this order."

2. Learned Sr. Panel Counsel appearing for the

petitioners seeks to falter the impugned order arguing that

the relief granted to the private respondent offends the

Central Government's Policy as promulgated in the MACP

guidelines dated 19.05.2009 & 22.10.2019; the violation

of Policy that eventually would result into a huge loss to

the public exchequer, regard being had to numerical

strength of similarly placed employees, has not been duly

addressed by the Tribunal despite urgement. What was

paid to the respondent was in excess of his entitlement;

subsequent to the withdrawal of 3% fitment, he has been

granted MACP-3 in a sum of Rs.1,14,326/-; therefore, the

Tribunal could not have quashed the orders that were

challenged before it. In support of his submission, he

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presses into service the Apex Court decision in STATE OF

PUNJAB vs. RAFIQ MASIH (WHITE WASHER)1.

3. Learned counsel appearing for the respondent

per contra make submission in justification of the

impugned order and the reasons on which it has been

structured: Firstly, he disputes that his client had no

entitlement to the monies in question; secondly, no

recovery can be done post-retirement, even if entitlement

is discounted and thirdly, the recovery being time barred,

refund has to be made to the pensioner. In support of his

contention, he banks upon the decision of the Apex Court

in THOMAS DANIEL vs. STATE OF KERALA2.

4. Having heard the learned counsel for the parties

and having perused the Petition Papers, we decline

indulgence in the matter for the following reasons:

4.1. The Tribunal which is established under the

provisions of the Administrative Tribunals Act, 1985,

AIR 2015 SC 696

AIR 2022 SC 2153

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comprises of a Judicial Member who is a retired High Court

Judge and an Administrative Member who is a retired IAS

officer, who have accumulated expertise in matters like

this. The Tribunal exercises the jurisdiction akin to the one

vested in this Court under Articles 226 & 227 of the

Constitution of India vide L. CHANDRA KUMAR vs.

UNION OF INDIA3. That being the position, as a matter

of course, indulgence of this court cannot be insisted upon

even if there are some arguable errors in the orders

entered after hearing of the parties. A strong case has to

be made out by demonstrating errors apparent on the face

of the record. This is the normative approach of the courts

in treating the causes brought before them in writ

jurisdiction.

4.2. Admittedly, the respondent-employee has put

in a long & spotless service of 35 years and demitted office

on attaining the age of superannuation on 30.04.2022 as

Senior Accounts Officer. The amount allegedly paid in

AIR 1997 SC 1125

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excess was in the year 2013 and order of recovery is

made from the pensioner only in the year 2022 i.e.,

28.04.2022, to be precise. The Apex Court in RAFIQ

supra, has observed as under:

"...(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..."

The same has been reiterated in THOMAS DANIEL supra.

The above observations come to the rescue of the

respondent-pensioner.

4.3. The above apart, we are in agreement with the

submission of learned Senior Advocate appearing for the

respondent-pensioner that even if entitlement of his client

to the amount in question is demonstrated to be absent,

no recovery can be made when it is not the case of

petitioners that the said payment was made to him

because of some culpable conduct on his part. In this

regard, what the Apex Court observed in THOMAS DANIEL

supra at para 9 being relevant, is reproduced:

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"This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had 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 of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess".

Despite vehement submission of learned Panel Counsel,

we are not convinced that the respondent-pensioner was

not entitled to the payment made to him in respect of

which recovery orders as challenged before the Tribunal

were passed. The respondent had received three financial

upgradations in his career that spanned beyond three

decades: First was under TBOP Scheme on 1.1.2002 in the

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scale of Rs.4500-7000 (subsequently revised grade pay of

Rs.2800/-); the second was under MACP II from

01.09.2008 in grade pay of Rs.4200/- and the third was

on 27.3.2013 after promotion as AAO in grade pay of

Rs.4800/-. In his OA No.426/2017, it was held that further

financial upgradation under MACP III could not be granted

since he has already obtained three financial upgradations.

However, petitioners vide order dated 26.04.2021 have

withdrawn the 3% pay fixation benefit at the time of his

promotion as AAO and recovered Rs.1,97,265/- from the

pensionary benefits vide order dated 3.5.2022. Strangely,

they accorded MACP III benefit vide letter dated

7.10.2022 and released Rs.1,14,326/- in terms of letter

dated 5.12.2022. This could not have been withdrawn as

rightly observed by the Tribunal.

4.4. The apprehension of learned Sr. Panel Counsel

appearing for the petitioners that this decision would

become a precedent for similarly placed others in the

queue is assuaged by the learned Sr. Advocate appearing

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for the respondent-pensioner that the relief granted to him

is in the peculiar circumstances of his case and that the

Tribunal has not laid down any principle generally

applicable to others. We agree with this version of the

pensioner. In other words, suffice it to clarify that the

relief granted to the respondent herein is case specific and

that neither the Tribunal in its order has said nor this

Court in its judgment is saying that there are any

precedential elements in their decisions.

4.5. As already mentioned above, the respondent having

retired from his long & spotless service, is in the evening

of life drawing periodic pension. The petitioners being the

constitutionally ordained Welfare State are expected to

treat the pensioners of the kind with soft gloves. It hardly

needs to be stated that ours is not the East India

Company of bygone era. The entities which answer the

definition of 'State' u/a 12 of the Constitution of India

have to conduct themselves as model employers, to say

the least. Viewed from that angle, the orders of recovery

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from the pension that are set-aside by the Tribunal vide

impugned order run counter to that idea. Much is not

necessary to specify.

In the above circumstances, this petition being devoid of merits, is liable to be and accordingly dismissed.

The petitioners shall give effect to the impugned order of the Tribunal within an outer limit of eight weeks, failing which delay would carry interest at the rate of 1 per cent per mensem for the first two months and 2 per cent for the period next following and further that the interest component may be recovered personally from the erring officials concerned.

Now, no costs.

Sd/-

(KRISHNA S DIXIT) JUDGE

Sd/-

(C M JOSHI) JUDGE

Bsv/cbc