SHRI N ESWAR Vs. COMMISSIONER KARNATAKA

JUDGEMENT

(1.) THE petitioner was appointed as a Miscellaneous Coolie from 263.1969 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 Ors. v. G. Sreenivasa Rao and Ors. : 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 v. Union of India and Ors. : 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 v. Union of India : 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 Ors. v. National Institute of Rural Development and Ors. 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 Ors. v. B. Ravindran and Anr. and Director General, ESI Corporation v. Mr. P. John and Ors. . THE dispute centred round the question as to the fixation of pay of an employee on retirement from defence services and on being reemployed 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. John's 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.) HAVING regard to this legal position as is settled by the several judgments of the Supreme Court and the fact that the judgment rendered in V. Gangaram's case supra, which is sought to be relied upon by the counsel for the respondent, which does not refer to the several judgments of the Supreme Court and HAVING regard to the later judgments which have been cited above, in my opinion, the petitioner has made out a case for interference and accordingly, since the amounts paid to the petitioner were not on account of any fault of his, the petition is allowed. The impugned Annexure "E" is quashed.