Karnataka High Court

Sri. Vasantha Kumar. B vs The General Manager (A And Hr) on 25 January, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                          NC: 2025:KHC:3337
                                                     WP No. 21978 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 25TH DAY OF JANUARY, 2025

                                        BEFORE
                          THE HON'BLE MR JUSTICE S.G.PANDIT
                        WRIT PETITION NO.21978 OF 2022 (S-RES)


                BETWEEN:

                SRI. VASANTHA KUMAR B.,
                S/O B.S.THIMMEGOWDA,
                AGED ABOUT 61 YEARS,
                RESIDING AT NO. 338,
                3RD CROSS, GRUHALAKSHMI LAYOUT,
                NAGASANDRA POST,
                BANGALORE-560 073.
                                                              ...PETITIONER


                (BY SMT. SANGEETHA, ADVOCATE FOR
                    SRI. SRINIVASA K., ADVOCATE)


Digitally
                AND:
signed by
KAVYA R
Location:       1.    THE GENERAL MANAGER (A & HR)
High Court of         BESCOM,
Karnataka             K.R. CIRCLE,
                      BANGALORE-560 001.

                2.    THE SUPERINTENDENT ENGINEER (ELE)
                      BANGALORE NORTH CIRCLE,
                      3RD FLOOR, CRESCENT TOWERS,
                      CRESCENT ROAD,
                      NEAR MALLIGE HOSPITAL,
                      MADHAVANAGAR,
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                                            NC: 2025:KHC:3337
                                         WP No. 21978 of 2022




     BANGALORE-560 001.

3.   THE EXECUTIVE ENGINEER (ELE)
     BESCOM, JALAHALLI DIVISION,
     DEVI CIRCLE,
     BANGALORE-560 058.
                                              ...RESPONDENTS
(BY SRI. SANJEEV B.L., ADVOCATE)



      THIS W.P. IS FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED

OFFICIAL MEMORANDUM DATED 07.03.2022, ISSUED BY THE

R-3 VIDE ANNEXURE-C. DIRECT THE R-3 NOT TO EFFECT ANY

RECOVERY FROM OUT OF HIS TERMINAL BENEFITS AND IF SO

RECOVERED, DIRECT THE R-3 TO REFUND THE ENTIRE

AMOUNT    OF   RS.3,76,001/-     ALONG    WITH   12   PERCENT

INTEREST PA TO BE EFFECTIVE FROM 01.04.2022 AS PER THE

REPRESENTATION OF THE PETITIONER DATED 17.09.2022

VIDE ANNEXURE-E.


      THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE S.G.PANDIT
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                                                           NC: 2025:KHC:3337
                                                      WP No. 21978 of 2022




                              ORAL ORDER

The petitioner, a retired Junior Engineer (Ele) of

respondent-BESCOM, is before this Court under Article 226 of

the Constitution of India, questioning Annexure-C, Official

Memorandum bearing No.PÁ¤E/eÁ«/¯É/¸À¯/É »¸À/21-22/77,

dated 17.03.2022, wherein it is directed to deduct

Rs.3,76,001/- from the earned leave encashment of the

petitioner and the petitioner has also sought for release of the

said amount along with interest by considering representation

dated 17.09.2022 (Annexure-E).

2. Heard learned counsel Smt.Sangeetha for

Sri. Srinivasa.K., learned counsel for the petitioner and learned

counsel Sri. B.L.Sanjeev for respondent Nos.1 to 3. Perused

the writ petition papers.

3. Learned counsel for the petitioner would submit

that the petitioner is a Junior Engineer (Ele) retired from

service on attaining the age of superannuation on 31.03.2022.

At the time of his retirement, the respondents settled his

pensionary benefits but withheld a sum of Rs.3,76,001/-, which

the petitioner was entitled towards encashment of earned

NC: 2025:KHC:3337

leave, on account that the petitioner is due to the respondent-

BESCOM. Learned counsel would submit that on enquiry it is

made known that the petitioner's pay was revised under Official

Memorandum dated 17.03.2022, 13 days prior to his

retirement stating that during the period from February,

2003-2006 and February-2010 to March-2022, excess pay has

been paid. Learned counsel would submit that no opportunity

whatsoever is afforded to the petitioner or notice indicating as

to why pay should not be re-fixed has been issued to the

petitioner. Further, learned counsel would submit that no

recovery could be affected from a retired employee or an

employee who would be retiring within a period of one year in

terms of the decision of the Hon'ble Apex Court in the case of

State of Punjab & Ors vs. Rafiq Masih (White Washer) &

Others reported in 2015 (4) SCC 334.

4. Per contra, learned counsel for the respondent-

BESCOM would submit that the petitioner was paid increment

which the petitioner was not entitled and thus he was paid

excess pay. The said excess pay was ordered to be recovered,

which according to him is in accordance with law. Further,

learned counsel Sri. B.L.Sanjeev would submit that an

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employee who has received excess pay is liable to refund the

same. Thus, he prays for dismissal of the writ petition.

5. Having heard the learned counsel for the parties

and on perusal of the writ petition papers, the only point which

falls for consideration is as to "Whether the recovery of sum of

Rs.3,76,001/- from earned leave encashment of the petitioner

on his retirement, in terms of Official Memorandum dated

17.03.2022 is legally sustainable or justifiable?".

6. Answer to the above point would be in the

"Negative" and the respondents are not justified in directing

recovery of sum of Rs.3,76,001/- under Official Memorandum

dated 17.03.2022 (Annexure-C).

7. The petitioner, retired from service of the

respondent-BESCOM as Junior Engineer (Ele) on attaining the

age of superannuation on 31.03.2022. On the date of his

retirement, the respondents are obliged to settle pension and

pensionary benefits. The respondents under Annexure-C,

Official Memorandum dated 17.03.2022, 13 days before his

retirement directed recovery of Rs.3,76,001/- from earned

leave encashment of the petitioner. Recovery ordered is on

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account that the petitioner is paid excess pay during the period

from February, 2003-2006 and February-2010 to March-2022.

If the petitioner had been paid excess pay during 2003-2006

and February-2010 to March, 2022, nothing prevented the

respondents from taking action to recover earlier to the

petitioner's retirement or in advance. Moreover, no notice

whatsoever is issued to the petitioner as to why his pay should

not be re-fixed or recover shall not be effected. Further more,

the respondents have not determined the amount in any

enquiry by providing an opportunity to the petitioner. In the

absence of notice or enquiry, the entire action of the

respondents in ordering recovery is in total violation of the

principles of natural justice.

8. Further, the Hon'ble Apex Court in Rafiq Masih

case (supra) has made it clear that no recovery could be

affected from a retired person or a person who would be

retiring within one year that too belonging to Group-C and

Group-D Officials. It is held that such recovery would be

arbitrary and unreasonable. The relevant Paragraph No.18 of

the said judgment reads as follows:

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"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 Class 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.

(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.

(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."

9. This type of recovery orders by the respondents are

being passed day in and out. While passing such orders no

opportunity is provided nor any action is taken against such

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Officers or Officials for decades together. Such action leads to

larger financial implication. If the Competent Authority fails to

look into such incidents and if the Authority fails to take any

action against such Officials or Officers who are responsible for

such negligence, it calls for action against the Superior Officials.

10. A copy of this Order be forwarded to the Managing

Director, KPTCL as well as General Manager (A & HR), BESCOM,

K.R.Circle, Bengaluru for necessary further action.