- 1 - NC: 2025:KHC:5923 WP No. 9385 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 9385 OF 2021 (S-RES) BETWEEN: DODDAIAH S/O LATE SRI. DODDAIAH AGE ABOUT 65 YEARS FORMERLY WORKING AS DAFTARY, BESCOM AND RESIDING AT NO. 16, KAMALA NILAYA, 2ND FLOOR, 16TH CROSS, MUNESHWARA BLOCK, BANGALORE - 560 026 …PETITIONER (BY SRI. SUBRAMANYA BHAT M., ADVOCATE) AND: 1. THE BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED, REP. BY THE MANAGING DIRECTOR, K.R. CIRCLE, BANGALORE - 01 2. THE CHIEF GENERAL MANAGER (ADMIN AND HR), BANGALORE ELECTRICITY COMPANY LIMITED, REP. BY THE MANAGING DIRECTOR, K.R. CIRCLE, BENGALURU - 01. Digitally signed by KAVYA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:5923 WP No. 9385 of 2021 3. THE EXECUTIVE ENGINEER (EL) (C , O AND M), BESCOM, JAYANAGAR DIVISION, BSK III STAGE, BANGALORE - 560 070 …RESPONDENTS (BY SRI. H.V. DEVARAJU, ADVOCATE FOR R1 TO R3) THIS W.P. FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 09.02.2021 ISSUED R3 ANNEXURE H AS THE SAME IS VIOLATIVE OF ARTICLES 14, 16, 19, 21 AND 300-A OF THE CONSTITUTION AND ALSO NOTE (1) TO REGULATION 173 OF THE KEB EMPLOYEES SERVICE REGULATIONS 1996 AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT ORAL ORDER The petitioner, a retired Daftary is before this Court under Article 226 of the Constitution of India with a prayer to quash the order bearing No.EE(EL)/JD/AO/AAO/9909-12 dated 09.02.2021 (Annexure-H) issued by respondent No.3 and also praying for a writ of mandamus directing - 3 - NC: 2025:KHC:5923 WP No. 9385 of 2021 the respondents to refund a sum of Rs.4,33,425/- with interest at the rate of 8% p.a. from the date it became payable till the date of payment in terms of order dated 12.10.2020 passed in W.P.No.4715/2015 (Annexure-E). 2. Heard learned counsel Sri Subramanya Bhat. M., for petitioner and learned counsel Sri H.V. Devaraju, for respondents 1 to 3. Perused the writ petition papers. 3. Learned counsel for the petitioner would submit that petitioner retired on attaining the age of superannuation on 31.05.2014 as Daftary (Group-D). It is submitted that under Annexure C, Calculation Sheet dated 19.06.2014, the petitioner was informed that a sum of Rs.4,33,425/- would be recovered from his pensionary benefits. Questioning the said communication (Annexure C) dated 19.06.2014, the petitioner was before this Court in W.P.No.4715/2015 (SR). The said writ petition was allowed on 12.10.2020 with a direction to the respondents to issue notice to the petitioner, asking the petitioner as to - 4 - NC: 2025:KHC:5923 WP No. 9385 of 2021 why recovery shall not be effected and thereafter, to pass a speaking order as to whether recovery is permissible or not. 4. It is submitted that respondents issued show cause notice dated 26.11.2020 and the petitioner is said to have submitted his reply on 05.12.2020. The respondent authorities under impugned order dated 09.02.2021 (Annexure H) ordered recovery of a sum of Rs.4,33,425/- on the ground that excess salary has been paid to the petitioner from 01.04.1993 to 31.05.2014. 5. Learned counsel for the petitioner would submit that the amount ordered to be recovered is said to be excess salary paid during 01.04.1993 to 31.05.2014. It is submitted that during his period of service, no action was initiated either to re-fix or to recover the excess salary. He submits that action was initiated for recovery only under Annexure C dated 19.06.2014, after petitioner's retirement from service. He further submits that at that point of time, no show cause notice was issued as to why - 5 - NC: 2025:KHC:5923 WP No. 9385 of 2021 the said amount should not be recovered, but in pursuance to order of this Court, show cause notice dated 26.11.2020 was issued, which was suitably replied. Learned counsel submits that no recovery is permissible from a retired Group D official and in that regard, reliance is placed on the decision of Hon'ble Apex Court in STATE OF PUNJAB AND OTHER Vs. RAFIQ MASIH (WHITE WASHER) AND OTHERS reported in (2015) 4 SCC 334. 6. Nextly, Sri. Subramanya Bhat, learned counsel would contend that petitioner has not given any undertaking consenting for recovery. Moreover, he submits that no such undertaking could be obtained by the respondents. He submits that a retired person, who has no other option but to consent, if the respondents compel him to give such consent on the assurance of settlement of pensionary benefits. Thus he prays for allowing the writ petition. 7. Per contra, Sri.H.V. Devaraju, learned counsel for respondents submits that it is an admitted fact that petitioner was paid excess salary and the respondents are - 6 - NC: 2025:KHC:5923 WP No. 9385 of 2021 justified in recovering excess salary paid to the petitioner. Therefore, he supports the impugned order of recovery passed by the respondents. Further Learned counsel would submit that petitioner has given consent for recovery, if excess salary is paid to the petitioner. Thus he prays for dismissal of the writ petition. 8. Having heard the learned counsel for both the parties and on perusal of the entire writ petition papers, the point that arise for consideration is as to: "In the peculiar facts whether the respondents are justified in ordering recovery under impugned order dated 09.02.2021 (Annexure-H)?" My answer to the above point would be that the respondents are not justified in ordering recovery under impugned order dated 09.02.2021 for the following reasons. 9. Admittedly petitioner retired from service as Daftary on attaining the age of superannuation on 31.05.2014. - 7 - NC: 2025:KHC:5923 WP No. 9385 of 2021 Case of the respondents is that petitioner was paid excess salary for the period from 01.04.1993 to 31.05.2014 the date of his retirement. Admittedly no action is taken by the respondents during his service period. The order of recovery dated 19.06.2014 was passed without issuing any notice to the petitioner, that too after his retirement. On a direction issued by this Court in W.P.No.4715/2015 dated 12.10.2020 the respondent/authorities issued show cause notice dated 26.11.2020 (Annexure F). The show cause notice indicates that recovery is necessitated as the petitioner was paid excess salary for the period stated above. While passing impugned order, the reply of the petitioner is not taken note of, moreover, the respondent/authorities have not examined as to whether recovery could be effected from a retired employee that too belonging to Group 'D'. The Hon'ble Apex Court in RAFIQ MASIH supra at paragraph 18 has held as follows :- "18. It is not possible to postulate all situations of hardship which would govern employees on the - 8 - NC: 2025:KHC:5923 WP No. 9385 of 2021 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 a 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 b 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 - NC: 2025:KHC:5923 WP No. 9385 of 2021 The Hon'ble Apex Court has categorically held that recovery from a retired person, would be iniquitous and unreasonable. 10. The contention of the respondents is that the petitioner had submitted his consent, while settling his pensionary benefits. The said unconscionable undertaking cannot be legally enforceable consent. Moreover, petitioner submits that he has not given such consent. When a person retires from service and when his pensionary benefits are not settled, such person would be in a position to give any kind of undertaking for settlement of his pensionary benefits. The respondent/authorities cannot take advantage of such retired employees position to seek such undertaking. The retired employee would be in need or necessity of pensionary benefits for performing the marriage of his daughter or son or towards the health expenses of his family members. In that circumstances, obtaining such undertaking would be illegal. - 10 - NC: 2025:KHC:5923 WP No. 9385 of 2021 11. Hence the following :- ORDER a. writ petition is allowed. b. Impugned order bearing No.EE(EL)/JS/AO/ AAO/9909-12 dated09.02.2021 (Annexure H), is quashed. c. A writ of mandamus is issued to respondents 1 to 3 to refund a sum of Rs.4,33,425/- with interest in terms of order dated 12.10.2020 in W.P.No.4715/2015 (SR). d. Time for compliance: Three months from today. Sd/- (S.G.PANDIT) JUDGE NG List No.: 1 Sl No.: 44 CT:SNN