- 1 - NC: 2025:KHC:7230 WP No. 15978 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 15978 OF 2023 (S-RES) BETWEEN: MALLIKARJUNACHARI S/O NANJUNDACHARI, AGED ABOUT 64 YEARS, RETIRED LINEMAN BESCOM, C-1 SUB DIVISION, MALLESHWARAM DIVISION, BANGALORE R/AT 69, 8th CROSS, WATER TANK, SHARADAMBA NAGAR, JALAHALLI VILLAGE BANGALORE NORTH BANGALORE 560 013 …PETITIONER (BY SRI. SRINIVASA K., ADVOCATE) AND: 1. DIRECTOR (A AND HR) KPTCL, KAVERI BHAVANA, BANGALORE 560 009. 2. CHIEF GENERAL MANAGER (F AND C) BESCOM, CORPORATE OFFICE, K.R. CIRCLE, Digitally signed by KAVYA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:7230 WP No. 15978 of 2023 BANGALORE 5600 001. 3. SUPERINTENDING ENGINEER (ELE) BESCOM, O AND M NORTH CIRCLE, NEAR MALLIGE HOSPITAL, BANGALORE 560 001. 4. EXECUTIVE ENGINEER (ELE) BESCOM, O AND M, MALLESHWARAM DIVISION, 19, 13th CROSS ROAD, BANGALORE 560 021 …RESPONDENTS (BY SRI. NIROOP SUKIRTHY V., ADVOCATE FOR SRI. VENKATESHA T.S., ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OFFICIAL MEMORANDUM DATED 28.06.2017, ISSUED BY THE R4 VIDE ANNEXURE-C TO THE WRIT PETITION 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 - 3 - NC: 2025:KHC:7230 WP No. 15978 of 2023 ORAL ORDER The petitioner/a retired Assistant Lineman of respondent/BESCOM is before this Court questioning Annexure-C Official Memorandum No. PÁ¤EA(«)/ªÀÄ«/¯ÉzÀ/¯É/EJf/1611 dated 28.06.2017 directing recovery of Rs.1,83,417 from DCRG amount of the petitioner and also for a direction to refund the said amount along with interest by considering the representation (Annexure-F) dated 21.11.2022. 2. Heard Sri Srinivasa, K., learned counsel and Sri Niroop Sukirthy V., learned counsel for Sri. Venkatesha T.S., learned counsel appearing for respondents. Perused the entire writ petition papers. 3. Learned counsel for the petitioner would submit that petitioner retired from service on attaining the age of superannuation on 30.06.2017. He submits that two days prior to the date of retirement of petitioner, - 4 - NC: 2025:KHC:7230 WP No. 15978 of 2023 respondent/BESCOM passed Official Memorandum (Annexure-B) dated 28.06.2017 revising the petitioners pay from 2009 to 2017 to the disadvantage of the petitioner and under Annexure-C dated 28.06.2017 directed recovery of a sum of Rs.1,83,417/- from DCRG amount of the petitioner. Learned counsel for the petitioner would submit that no notice whatsoever is issued to the petitioner, nor any opportunity was provided before revising the pay of the petitioner to his disadvantage or before ordering recovery under Official Memorandum (Annexure-C) dated 28.06.2017. Further learned counsel would submit that petitioner is a retired employee of respondent/BESCOM and from a Group C Official no recovery could be effected after retirement in terms of the decision of the Hon'ble Apex Court in STATE OF PUNJAB AND OTHERS Vs. RAFIQ MASIH (WHITE WASHER) AND OTHERS reported in (2015) 4 SCC 3314 Thus he prays for allowing the writ petition. - 5 - NC: 2025:KHC:7230 WP No. 15978 of 2023 4. Learned counsel for the respondents would submit that petitioner was paid excess pay from 2009 onwards on account of grant of an increment, to which the petitioner was not eligible. As such the Official Memorandum at Annexure-B dated 28.06.2017 was passed revising the pay of the petitioner and for recovery. Learned counsel would further submit that when the petitioner has received excess pay due to grant of one increment to which the petitioner was not entitled, he is liable to refund the excess amount received. Thus he prays for dismissal of the writ petition. 5. Having heard learned counsel for the parties and on perusal of the writ petition papers, the only point that arise for consideration is as to "Whether in terms of Official Memorandum Annexure-C dated 28.06.2017 the respondent/BESCOM could order recovery from the DCRG of the petitioner ?" - 6 - NC: 2025:KHC:7230 WP No. 15978 of 2023 My answer to the above point would be that respondent is not justified in directing recovery, that too after retirement of the petitioner, from his DCRG. 6. Admittedly petitioner retired from service on attaining the age of superannuation on 30.06.2017. Two days prior to the retirement of petitioner Official Memorandum (Annexure-B) dated 28.06.2017 was passed re-fixing the pay of the petitioner to his disadvantage. Admittedly no notice whatsoever, was issued or opportunity was provided to petitioner, before passing Official Memorandum dated 28.06.2017. When the authorities take a decision to revise the pay to the disadvantage of the petitioner minimum requirement is to issue show cause notice indicating the reason as to why the revision of pay should not be made. But in the instant case, such notice is not issued to the petitioner and pay is re-fixed and recovery of a sum of Rs.1,83,217 is directed from DCRG of the petitioner. The petitioner has not challenged the revision of pay scale, but challenge of the - 7 - NC: 2025:KHC:7230 WP No. 15978 of 2023 petitioner is only to recovery of a sum of Rs.1,83,417/- from DCRG. 7. The Hon'ble Apex Court in the decision RAFIQ MASIH supra has made it clear that recovery of any amount from out of retiral benefits of an employee belonging to Group C and Group D, would be unreasonable and iniquitous. Paragraph 18 of the said decision reads as follows :- "18. It is not possible to postulate all situations of hardship which would govern employees on the 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. - 8 - NC: 2025:KHC:7230 WP No. 15978 of 2023 (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." 8. Admittedly no action was taken to revise the pay and to recover the excess amount during the service of the petitioner in the respondent/BESCOM. The action to recover is taken two days prior to the petitioner's retirement, which is wholly unreasonable. 9. Taking note of the unreasonable action of the respondents and taking note of the fact that no recovery could be effected from Group C official, when they are due - 9 - NC: 2025:KHC:7230 WP No. 15978 of 2023 to retire from their DCRG and following the decision in RAFIQ MASIH supra, I pass the following :- ORDER a. Writ petition is allowed. b. The impugned Official Memorandum (Annexure-C) bearing No. PÁ¤EA(«)/ªÀÄ«/¯ÉzÀ/¯É/EJf/1611 dated 28.06.2017 is quashed. c. Respondent/BESCOM is directed to release a sum of Rs.183,417/- to the petitioner along with interest at the rate of 6% p.a. from the date of his retirement till it is paid. d. Time for compliance: Three months from today. Sd/- (S.G.PANDIT) JUDGE NG List No.: 1 Sl No.: 36 CT:SNN