Karnataka High Court
Shri Mohan S/O Narayan Ekbote vs The Hubballi Dharwad Municipal ... on 19 February, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC-D:3354
WP No. 103464 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO.103464 OF 2024 (S-RES)
BETWEEN:
SHRI MOHAN S/O. NARAYAN EKBOTE,
AGE: 71 YEARS, OCC: RETIRED,
R/O: H.NO.43, KUSUGAL ROAD,
MADHURA CHETANA COLONY,
HUBBALLI - 23, HUBBALLI TALUK,
DIST: DHARWAD.
...PETITIONER
(BY SRI S. N. RAJENDRA, ADVOCATE)
AND:
1. THE HUBBALLI DHARWAD
MUNICIPAL CORPORATION,
R/BY ITS COMMISSIONER
HUBBALLI - 20, DIST: DHARWAD.
2. THE CHIEF ACCOUNTS OFFICER, PENSION CELL,
OFFICE OF THE CHIEF ACCOUNTS OFFICER,
HUBBALLI DHARWAD MUNICIPAL
CORPORATION, HUBBALLI - 580 024,
Digitally signed
TQ AND DIST: DHARWAD.
by VISHAL ...RESPONDENTS
NINGAPPA
PATTIHAL (BY SRI GURUDEV GACHCHINAMATH, ADVOCATE)
Location: High
Court of
Karnataka, THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
Dharwad Bench
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER,
DIRECTION OR WRIT IN THE NATURE OF CERTIORARI QUASHING
THE WITHDRAWAL ORDER OF 15 YEAR TIME BOUND SCALE DATED
21.07.2012 ISSUED BY 2ND RESPONDENT PRODUCED AT
ANNEXURE-E, ISSUE AN ORDER, DIRECTION OR WRIT IN THE
NATURE OF CERTIORARI QUASHING THE PENSION PAYMENT
ORDERS BG NO'S. HDMC/15/ CAO/PENSION-CELL/12-13 DATED
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NC: 2025:KHC-D:3354
WP No. 103464 of 2024
29.09.2012 ISSUED BY 2ND RESPONDENT PRODUCED AT ANNEXURE-
F SO FAR AS IT RELATES TO DEDUCTIONS AND REDUCTION IN THE
PENSION. ISSUE AN ORDER, DIRECTION OR WRIT IN THE NATURE
OF MANDAMUS DIRECTING THE RESPONDENTS TO RETURN THE
DEDUCTED AMOUNT OF RS. 1,19,941/- AND TO REFIX THE PENSION
OF PETITIONER AFTER RESTORING 15 YEAR TIME BOUND SCALE AS
PER THE REPRESENTATIONS DATED 18.05.2023 AND DATED
6.3.2024 PRODUCED AT ANNEXURES -M, M1,M2 AND M3. PASS AN
ORDER IN TERMS OF THE ORDER DATED 23.2.2011 MADE IN
W.P.NO. 8282/2008 C/W 8278/2008 AND OTHER CONNECTED
MATTERS, ON THE FILE OF THIS COURT PRODUCED AT ANNEXURE-
G AND ALLOW THE WRIT PETITION WITH COSTS IN THE INTEREST
OF JUSTICE AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
The petitioner is before this Court calling in question
an order dated 21.07.2012, by which, the Time Bound
Scale that was granted to the petitioner, on completion of
15 years of service, is withdrawn and consequential
changes in the pension has been affected.
NC: 2025:KHC-D:3354
2. Heard Sri S.N. Rajendra, learned counsel for
petitioner and Sri Gurudev Gachchinamath, learned
counsel for respondents.
3. Facts in brief, germane are as follows:
The petitioner is appointed on 09.10.1972 as a Naka
Officer in the Octroi Department on temporary basis. Later
it transpires that, the service of the petitioner comes to be
regularized. The issue in the lis is not with regard to the
service rendered by the petitioner. During the service of
petitioner, the Government notifies Karnataka Civil
Services (Automatic Grant of Special Promotion to Senior
Scale of Pay) Rules, 1991. The petitioner was extended
the benefit in terms of the Rules on 02.12.1994. On
10.10.2000 it transpires that, the respondent-Corporation
extended the said benefit to all employees including the
petitioner.
4. Owing to certain audit objections, on
21.07.2012, long after the grant of the said Time Bound
NC: 2025:KHC-D:3354
Scale, the said scale comes to be withdrawn. The
withdrawal resulted in a short payment in the pension. The
petitioner did not challenge the same immediately, but has
approached this Court after submitting a representation on
18.05.2023 and 06.03.2024. The representations were not
considered. Therefore, the petitioner is at the doors of this
Court.
5. Learned counsel appearing for the petitioner
submits that the Time Bound Scale that was granted to
the petitioner in the year 2000 is sought to be withdrawn
in the year 2012 without even issuing a notice to him and
the learned counsel further submits that the pension has
been short paid and the recovery of Rs.1,19,941/- is
deducted from the terminal benefits of the petitioner. He
would therefore seek quashment of those orders and
release of terminal benefits in its entirety.
6. Learned counsel Sri Gurudev Gachchinamath
appearing for the respondent-Corporation would submit
the orders challenged are of the year 2012. The petition is
NC: 2025:KHC-D:3354
preferred in the year 2024, i.e., twelve years thereafter.
The petitioner has kept quite for twelve years and knocked
at the doors now. Therefore, even if he is to succeed in the
position, he should not be awarded any interest, as
claimed. In the light of the delay in approach, the counsel
would submit that he is not entitled to any relief that he
has sought for, as delay defeats equity is his emphatic
submission.
7. I have given my anxious consideration to the
submissions of the learned counsel for the parties and
have perused the material on record.
8. The aforenarrated facts are not in dispute. The
issue now lies in a narrow compass. The petitioner was
granted Time Bound Scale in terms of the aforesaid Rules
on 02.12.1994. The said document which depict such
grant reads as follows :
"¸ÀzÀjAiÀĪÀgÀ ªÉÃvÀ£ÀªÀ£ÀÄß 15 ªÀµÀðUÀ¼À ¸ÀéAiÀÄA ZÁ°vÀ ªÉÃvÀ£À
ªÀÄÄA§qÀw ¯Á¨sÀzÉÆA¢UÉ ¸À£ï 1994 gÀ 4£Éà ªÉÃvÀ£À DAiÉÆÃUÀzÀ
¥ÀjµÀPÀÈvÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ªÉÃvÀ£ÀªÀ£ÀÄß ¤UÀ¢¥Àr¸À¯ÁVzÉ
NC: 2025:KHC-D:3354
1760 ªÉà ±Éæà 1190-2200 1-6-91
1800 15 ªÀµÀðUÀ¼À ¸Àé ZÁ 1-6-91
ªÀÄÄA, ¯Á¨sÀ, ªÉÃ, ±ÉæÃ
1190-2200
1850 1-10-91
1900 1-10-92
2050 ¥À ªÉÃ, ±Éæà 1280-2300 1-7-93
2100 1-10-93
2150 1-10-94
£ÀA.HDC 364/GA1/94
D 2-12-94
PÀ«ÄµÀ£Àgï ¥ÀgÀªÁV"
9. The petitioner did enjoy the said benefit and the
salary of the petitioner was reworked in accordance with
the said benefit. It transpires that at the time of
retirement of the petitioner, there arose an audit objection
with regard to the grant of Time Bound Scale to the
petitioner. It was said that he was not eligible for the said
Time Bound Scale. Therefore, the Time Bound Scale that
was granted in the year 1994 as continued in the year
2000 comes to be withdrawn by an order dated
21.07.2012. This is admittedly without issuance of any
notice to the petitioner.
NC: 2025:KHC-D:3354
10. The issue now would be whether a benefit that
is granted in the year 1994 could have been withdrawn on
21.07.2012, on the eve of retirement of the petitioner. The
issue need not detain this Court for longer delve deep into
the matter. The Apex Court in the case of State of Punjab
and others vs. Rafiq Masih (White Washer) and others1
has 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 herein above, we may, as
a ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from employees belonging to
Class-III and Class-IV service (or Group 'C' and
Group 'D' service).
(ii) Recovery from retired employees, or
employees who are due to retire within one year, of
the order of recovery.
(iii) Recovery from 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
higher post, and has been paid accordingly, even
though he should have rightfully been required to
work against an inferior post.
(2015) 4 SCC 334
NC: 2025:KHC-D:3354
(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."
11. The Apex Court lays postulates of recovery, of
amount that have been erroneously paid in the past. All
the postulates that are laid down by the Apex Court would
become applicable to the case at hand. The benefit that
was granted in the year 1994 is sought to be withdrawn in
the year 2012 that too without issuing any notice to the
petitioner. Therefore, the said action of withdrawal of the
Time Bound Scale becomes unsustainable. The result of
holding of the withdrawal of the Time Bound Scale being
illegal would be that the petitioner would get become
entitled to all the arrears of pension from 2012 till the date
of its payment. The petitioner shall thus become entitled
to the arrears of pension in its entirety to be calculated
and paid from 21.07.2012 till the date of payment.
12. In the normal circumstance, this Court could
have awarded interest. The petitioner has not approached
NC: 2025:KHC-D:3354
this Court immediately for an action that happens on
21.07.2012. Petition is preferred twelve years thereafter.
The petition would be dismissed, if the procedure had
been followed by the respondents in withdrawing the
benefit. Since it is not, and that it runs foul of the
judgment of the Apex Court, I have entertained the
petition and granted the aforesaid relief, but without
interest.
13. For the aforesaid reasons, the following :
ORDER
(i) The petition is allowed.
(ii) The orders dated 21.07.2012 and 29.09.2012,
issued by the respondent No.2, vide
Annexures-E and F, stand quashed.
(iii) The amount that is deducted or recovered from
the terminal benefits of the petitioner shall be
refunded to the petitioner within eight weeks
from the date of receipt of the copy of the
order.
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NC: 2025:KHC-D:3354
(iv) The pension of the petitioner shall be reworked
and arrears of pension from 31.09.2012 till the
date of payment shall be complied within next
eight weeks from the date of receipt of copy of
the order.
Ordered accordingly.
Sd/-
(M.NAGAPRASANNA)
JUDGE
NAA/CT-ASC
