Karnataka High Court
Ganjigere S/O Gullegouda Javaregowda vs The Hubli Dharwad Municipal ... on 6 March, 2018
Equivalent citations: 2018 (4) AKR 767
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06 T H DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
W.P. NO.113087/2014 (S-R)
BETWEEN :
GANJIGERE,
S/O GULLEGOUDA JAVAREGOWDA,
AGE : 63 YEARS, RETIRED, RESIDING AT NO.11,
BANASHANKARI BADAVANE,
NEAR KUMARESHWAR NAGAR,
DHARWAD-08.
...PETITIONER
(BY SRI S.N.RAJENDRA, ADVOCATE)
AND:
1. THE HUBLI DHARWAD MUNICIPAL
CORPORATION, REPRESENTED BY ITS
COMMISSIONER, HUBBALLI-20,
DISTRICT DHARWAD.
2. THE ASSISTANT COMMISSIONER
(ADMINISTRATION), HUBLI-DHARWAD
MUNICIPAL CORPORATION,
HUBBALLI-20, DISTRICT : DHARWAD.
3. THE CHIEF AUDITOR,
OFFICE OF THE CHIEF AUDITOR,
HUBLI-DHARWAD MUNICIPAL CORPORATION,
HUBBALLI-20, DIST: DHARWAD.
...RESPONDENTS
(BY SMT.SHASHIKALA L.DESAI, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO :
(a) ISSUE AN ORDER, DIRECTION OR WRIT IN
THE NATURE OF CERTIORARI QUASHING THE
ORDER BG. NO.HDMC/2101005011/NI/VE DATED
03/6.7.2012 BY RESPONDENT NO.2 PRODUCED AT
ANNEXURE-J.
(b) ISSUE AN ORDER, DIRECTION OR WRIT IN
THE NATURE OF CERTIORARI QUASHING THE
ORDER BG. NO.HDMC/334/AUY/12-13/277, DATED
24/28.8.2012 PASSED BY 3RD RESPONDENT
PRODUCED AT ANNEXURE-K.
(c) ISSUE AN ORDER, DIRECTION OR WRIT IN
THE NATURE OF MANDAMUS DIRECTING THE
RESPONDENTS TO RETURN THE DEDUCTED
AMOUNT ALONG WITH INTEREST @ 18% INTEREST
AND TO REFIX THE PENSION OF PETITIONER AFTER
RESTORING 15 YEAR TIME BOUND SCALE FROM THE
DATE OF HIS RETIREMENT AS PER
REPRESENTATION DATED 27.12.2014 PRODUCED AT
ANNEXURE-L AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HARING 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
Heard the learned counsel for the petitioner and the respondents on IA.No.1/2015. IA.No.1/2015 is allowed as amendment sought for is formal in nature and it will not change the nature of the writ petition. Petitioner's counsel is directed to carry out the amendment in the writ petition.
2. Heard the learned counsel for the petitioner and the respondents on the main matter.
3. The petitioner has sought for the following reliefs;
(a) Issue an order, direction or writ in the nature of certiorari quashing the order bg. No.HDMC/2101005011/Ni/ Ve dated 03/6.7.2012 by respondent No.2 produced at Annexure-J. :4:
(b) Issue an order, direction or writ in the nature of certiorari quashing the order bg. No.HDMC/334/AUY/12- 13/277, dated 24/28.8.2012 passed by 3rd respondent produced at Annexure-K.
(c) Issue an order, direction or writ in the nature of mandamus directing the respondents to return the deducted amount along with interest @ 18% interest and to refix the pension of petitioner after restoring 15 year time bound scale from the date of his retirement as per representation dated 27.12.2014 produced at Annexure-L.
(d) Pass any other order or direction as deems fit under the circumstances of the case and allow the writ petition with costs in the interest of justice.
4. There is no dispute that the petitioner was appointed on 14.08.1970 as Gardner by the :5: 1 s t respondent-corporation and he retired from service on 31.03.2012.
5. It is the case of the petitioner that, in the year 1991, the Government of Karnataka introduced the Time Bound Advancement Scheme and the corporation has extended the benefit to all the employees of the Corporation including the petitioner.
6. At the time of extending the benefit, the petitioner was given option to apt for the scale as he was promoted on that as per the third proviso to Rule 3 of the said Rules. It is further contended that the Chief Auditor, the 3 r d respondent after lapse of so many years has raised objections to it and the standing committee of the 1 s t respondent has taken a decision and passed resolution as per Annexure-E, holding that the extension of benefit given to the petitioner and others was legal and proper.
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7. As per the said extension of the benefit, the scale of the petitioner, salary and other things have been fixed vide orders dated 18.10.2002 as per Annexure-H. Accordingly, the petitioner was paid with the benefits extended in view of the time bound advancement scheme. But subsequently, without providing any opportunity to the petitioner, the 2 n d respondent vide Annexure-J refixed the salary and other emoluments and consequent to that, issued Annexure-K for recovery of an excess amount paid a sum of Rs.39762/-.
8. Being aggrieved by the above said orders as per Annexures-J and K, the petitioner has made a representation as per Annexure-L dated 27.12.2014 for reconsideration of the said order passed by the respondents as per Annexures-J and K. But it is argued that, the said representation has not been considered, but also :7: the order for recovery of the amount of Rs.39762/- is still in force. Therefore, he sought for quashing of the said proceedings and for direction to the respondent to consider the representation as per Annexure-L and pass appropriate orders in accordance with law.
9. The learned counsel for the petitioner also drawn my attention to the decision of the Apex Court by arguing that even any amount is paid in excess to the persons who are working in the cadre of 'C' and 'D' group cannot be recovered in view of the decision reported in (2015) 4 SCC 334 between the S tate of Punjab and others Vs. Raf iq Masih (White Washer) and others.
10. Per contra the learned counsel for the respondents strenuously contended that the petitioner himself has given an undertaking as per Annexure-F dated 27.09.2002 stating that he would like to continue in the same post and same :8: scale of pay as he was prior to 27.06.1991. Therefore according to the said undertaking he is not entitled for any emolument or he is not entitled for any benefit under the scheme. Therefore, after coming to know about this particular aspect, his pay has been revised and excess amount was ordered to be recovered.
11. The above said argument of the learned counsel though appears to be very attractive but the conduct of the respondents show that after Annexure-F (so called undertaking) they have fixed the salary and other benefits as per Annexure-H. On the basis of Annexure-H, the amount has been released in favour of the petitioner and other employees. But subsequently on 03.06.2012 a revised pay scale was fixed as per Annexure-J and recovery order has been as per Annexure-K dated 28.08.2012. In none of these two documents i.e., in Annexure-J or Annexure-K, :9: reference is not there with regard to any opportunity being given to the petitioner before revising the said salary or ordering for recovery of the amount. It appears no show cause notice has been issued as to why the salary scale should not be refixed and the amount excess paid can be recovered from the petitioner. Therefore, in my opinion the said two orders dated 03.07.2012 as per Annexure-J and the order dated 28.08.2012 as per Annexure-K are against the principles of natural justice and same are liable to be quashed.
12. Be that as it may, as rightly contended by the learned counsel, the authorities have also not considered Annexure-L, which is the representation made by the petitioner in the year 2014. The learned counsel also contends that, in view of the latest decision of the Hon'ble Apex Court whatever amount already paid in excess, legally or illegally even if it is wrongly paid, if the : 10 : employees fall under the 'C' and 'D' group, the said amount cannot be recovered. This aspect has to be considered by the authorities before ordering for recovery of the amount or if any amount has already been recovered for the said purpose, refund the same to the petitioner. In view of the facts and circumstances, I am of the opinion that a direction can be issued to the respondents to reconsider the above said aspects in the light of the claim made in Annexure-L and as far as the decision rendered by the Hon'ble Apex Court in (2015) 4 SCC 334 and pass appropriate orders in accordance with law. Hence the following order.
ORDER
1) Petition is allowed.
2) Consequently, the order passed by the respondents as per Annexures-J and K are hereby quashed.
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3) The respondents are hereby directed to consider Annexure-L.
4) The petitioner is also directed to give one more representation in detail along with a copy of the judgment of the Hon'ble Apex Court reported in (2015) 4 SCC 334, so as to enable the respondents to pass appropriate orders in accordance with law.
5) There is no bar for the respondents to refix the salary but it should be on consideration of the representation of the petitioner and also in accordance with law.
6) Accordingly, writ petition is disposed of with a direction that, the fresh representation has to be given along with the judgment of the Hon'ble : 12 : Supreme Court within one week from the date of receipt of a copy of this order.
7) Thereafter within three months the respondents have to pass appropriate orders in accordance with law in the light of the observation made above and also in the light of the law laid down by the Hon'ble Apex Court, in the above said decision.
SD/-
JUDGE E M /-