H K CHINDAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioner in this writ petition was an officer of the State Govt in the cadre of Joint Registrar of Co-operative Societies. The petitioner was sent on deputation' to serve as Managing Director of the Karnataka State Co-operative Apex Bank Ltd., Bangalore (hereinafter referred as 'the Apex Bank') on 11-12-1972. According to the Govt Order the petitioner was entitled to get foreign service allowance in addition to the pay and allowances to which he was entitled to in the post held by him in the foreign department. According to the respondents, the foreign service allowance to which the petitioner was entitled was Rs.100 per month. The petitioner commenced to draw his salary and allowances in terms of the Govt Order after he joined duty as Managing Director of the Apex Bank. On 9-8-1973 the Board of Directors of the Apex Bank passed a resolution fixing his pay at Rs. 1,625 per month by adding 25% to the basic pay of the petitioner and paid him the salary and allowances on that basis with effect from 9-1-1973. The Apex Bank wrote to the Govt seeking approval to the resolution, but the Govt was silent and no order approving the resolution of the Apex Bank was communicated. However, as stated earlier, the Apex Bank paid the salary and allowances to the petitioner in terms of the resolution from the date he reported for duty as Managing Director of the Apex Bank. The petitioner retired from service on 12-8-1977. The State Govt has failed to settle his pension in accordance with the rules. In these circumstances, the petitioner has presented the above petition praying for the issue of a writ of mandamus or any order of that nature to the respondents to release and pay forthwith the pensionary benefits due to him.

(2.) Resisting the claim of the petitioner, statement of objection is filed on behalf of respondents 1 to 4. In the statement of objection, the reason given for not finalising the pension due to the petitioner is that the Apex Bank suffered a loss to the extent, of Rs.27,364.88 p. on account of higher rate of pay given by them to the petitioner contrary to -the terms of deputation. As to the source of the power to with-hold the pension due to the petitioner for the recovery of the alleged excess payment made by the Apex Bank reference is made to Rules 214 and 215 of the Karnataka Civil Service Rules. The stand of respondents 1 to 4, in view of the said, rules is that they are entitled to effect recovery of the aforesaid sum from the pension due to the petitioner. Therefore, the question for consideration in this case is whether the aforesaid rules authorise the State Govt to with-hold the pension of the petitioner assuming that excess payment was made by the foreign employer. The relevant portion of Rule 214 reads as follows :

(3.) The next rule referred to in the statement of objection as the source of power of the Govt is Rule 215 of the rules, which reads as folllows :