N ESWAR Vs. COMMISSIONER KARNATAKA HOUSING BOARD

JUDGEMENT

(1.) THE petitioner was appointed as a Miscellaneous Coolie from 26. 3. 1969 in the pay scale of Rs. 65-95/- at Temporary Work Charge establishment. While working as such, the pay scale of eleven cadres of work charge establishment in the pay scale of Rs. 65-95/- including literate coolies, Head Coolies and Mukdams were re-classified as Junior Work Inspectors in the pay scale of Rs. 90-200/- as per order dated 20. 9. 1971. The order however did not include miscellaneous coolies, whose duties and responsibilities are similar to mukdams. Notwithstanding the same, as per the order dated 30. 4. 1986, the Government absorbed miscellaneous coolies as Junior Work Inspectors in the pay scale of Rs. 90-200/ -. This was granted to the petitioner in the cadre of Junior Work Inspector by an order dated 14. 8. 1986 and he was so absorbed with effect from 1. 9. 1971. Further, the respondent, by an order dated 27. 12. 1988, ordered for recovery from the petitioner on the footing that the pay scales had been mistakenly granted to the petitioner. The petitioner had challenged the same by way of a writ petition before this court in W. P. No. 7205/89 and this court, by an order dated 29. 10. 1997, had allowed the petition and quashed the order of recovery, and held that the respondent was at liberty to recover the said amount if it was made wrongly, only after issuing notice to the petitioner and after affording him an opportunity of hearing. The respondent, however, did not choose to recover the said amount. On the other hand, by an order dated 22. 9. 2002, the respondent granted revised pay scales of Rs. 960-1760 to the petitioner and further revised pay scales were granted from time to time, till the date of the petition in the cadre of Junior Work Inspector. It is only by an order dated 20. 3. 2002, the respondent has proceeded to order for recovery, without issuing any notice and without giving an opportunity to the petitioner. It is in this background that the petitioner is before this court.

(2.) THE counsel for the petitioner would contend, that the respondent had granted the pay scales of Rs. 90-200/- with effect from 1. 9. 1971 as per order dated 14. 8. 1996. And, this was not on the basis of any misrepresentation by the petitioner. The respondent, of its own volition having so granted the benefit, is now seeking to recover the same without issuing any notice or providing an opportunity of hearing. And, he would contend, that the order is not only in violation of principles of natural justice, but runs counter to the law as laid down by the Supreme Court. He would further submit that the re-fixation of pay amounts to revocation in the pay scales and rank, which ought to be preceded by an enquiry and an opportunity of hearing to the petitioner and therefore, the action of the respondent is illegal and unjust. In this regard, he would place reliance on several judgments of the Supreme Court. In the case of State of Andhra Pradesh and Others vs. G. Sreenivasa Rao and Others 1989 (2) SCC 290: Wherein a higher pay had been granted to the State Government employees by virtue of an order passed by the Tribunal. In an appeal before the Supreme Court, however, the Supreme Court held that the respondents are white-collared salaried persons and it would be too harsh for them to refund the salary if the salaries are already paid to them. And, therefore, directed that the additional salary paid to the employees as a result of the orders of the High Court/tribunal shall not be recovered from them. In the case of Bhagwan Shukla vs. Union of India and others AIR 1994 SC 2480; the appellant had questioned the re-fixation of his basic pay, whereby it was reduced with retrospective effect. The justification furnished by the respondents for reducing the pay was that the same was wrongly fixed initially and that the position had continued due to "administrative lapses" for about twenty years, when it was decided to rectify the mistake. The Supreme Court held that there was violation of principles of natural justice and the appellant has been made to suffer a huge financial loss without being heard and the order reducing the basic pay of the appellant was set aside. In the case of Shyam Babu Verma Vs. Union of India ( (1994) 2 SCC 521); wherein the Supreme Court held that any excess amounts paid to the petitioners which was not due to their fault, but on account of the fault of the respondents and the petitioners, not being responsible for the same in any way, the respondents could not recover the excess amounts which had already been paid to them and accordingly directed the respondents not to take any steps to recover or adjust any amounts paid to the petitioners in excess. P. H. Reddy and Others vs. National Institute of Rural Development and Others 2002 (1) SCSLJ 217: This was a matter referred to a three-judge Bench on account of an inconsistency having been noticed between two earlier judgments of the Supreme Court in Director General of Posts and Others vs. B. Ravindran and another [jt 1996 (10) SC 228] and Director General, ESI Corporation v. Mr. P. John and Others [jt 1998 (8) SC 338]. The dispute centred round the question as to the fixation of pay of an employee on retirement from defence services and on being re-employed in a civil post. On such re-employment the pay had been fixed at a particular sum. But, by a later order, on the basis of relevant Government circulars, the pay was re-fixed by the appropriate authority and direction was issued for recovering the excess amount paid. Assailing the same, the appellants had approached the High Court. The High Court disposed of the writ petition, quashing the order of fixation of salary. On appeal, the Division Bench, however set aside the same and the matter was before the Supreme Court. While affirming the view taken in Mr. P. Johns case (supra) as representing the correct view and consequently holding that the order of re-fixation done by the appropriate authority does not require interference, the Supreme Court held that the employees who had been in receipt of a higher amount on account of erroneous fixation by the authority ought not to be asked to repay the excess pay drawn, and therefore, that part of the direction of the appropriate authority requiring reimbursement of the excess amount drawn was annulled. And, on the basis of these authorities, the counsel for the petitioner would submit that the petition be allowed and the impugned order be quashed.

(3.) PER contra, the counsel for the respondent, would seek to place reliance on the judgment in the case of Karnataka Lokopayogi Ilaka Tantrika Sahayak Noukarara Sangha vs. State of Karnataka and another ILR 1999 KAR 2163, where, by virtue of a misconstruction of an order dated 23. 4. 1980, Junior Work Inspectors, who were not entitled to extension of pay scales were granted and this was sought to be recovered at a later point of time. The Supreme Court held that this action on the part of the respondents could not be held to be illegal. It further held that the State Government may consider the question of recovery of arrears in the light of the directions issued by the Karnataka Administrative Tribunal. And, on the case of V. Gangaram vs. Regional Joint Director and Others AIR 1997 SC 2776; where, on Consideration of the facts and circumstances, the Supreme Court found that the appellant was entitled to computation of pay scales for having acquired the additional qualifications and that he was entitled to two additional increments and not four increments as successively claimed. And further, that the respondents could recover the excess amounts paid only partially and that instalments should be proportionally distributed so as not to cause any undue hardship to the appellant.