- 1 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 105330 OF 2024 (S-RES) BETWEEN: NAGAPPA S/O. MALHAREPPA MUNJOJI, AGED ABOUT. 61 YEARS, OCC. NIL, R/O. SAVANURU VILLAGE, SAVANURU TALUK, HAVERI DISTRICT- 581210. …PETITIONER (BY SMT SARVAMANGALA CHIKKANAGOUDAR AND SRI M.R. HIREMATHAD, ADVOCATES) AND: 1. THE DIRECTORATE OF MUNICIPAL ADMINISTRATIVE, AMBEDKAR ROAD, 9TH AND 10TH FLOOR, VISHVESHWARIAH NAGAR, BANGALORE- 560001. 2. ASSISTANT DIRECTOR (IN CHARGE) AND ASSISTANT PUBLIC INFORMATION OFFICER, PENSION SMALL SAVING AND ASSET LIABILITY MONITORING DEPARTMENT, COMMISSIONER BUILDING, GROUND FLOOR, DEVAGIRI, HAVERI- 581110. 3. THE DEPUTY COMMISSIONER, HAVERI DISTRICT, HAVERI- 581110. 4. TOWN MUNICIPAL CORPORATION, CHIEF EXECUTIVE OFFICER, SAVANURU, SHIGGAON ROAD, SAVANURU, TALUK. SAVANURU- 581118, DIST. HAVERI. …RESPONDENTS (BY SMT. KIRTHILATHA R. PATIL, HCGP FOR R1 TO R3, SRI B. M. PATIL, AND SRI P. R. MEMJOJI, ADVOCATE FOR R4) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO, SEEKING A WRIT OF CERTIORARI OF NOTICE BEARING NO. PSALM/HVR/RPR/06/2024-25 DATED. 24.07.2024, ISSUED BY THE 2ND RESPONDENT VIDE ANNEXURE-D AND NOTICE BEARING NO.PUSASA/ AROGYA/ VAHI/ 2024-25/ 133 DATED 20.08.2024 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-E. ISSUE A WRIT, ORDER OF DIRECTION IN THE NATURE OF MANDAMUS DIRECT TO RESPONDENTS NO.2 TO 4 RELEASES THE RETIREMENT SANCTIONED PENSION ORDER DATED. 08.07.2024 BEARING NOS. PSALM/ HVR/ RPR/ 06/ 2024-25 VIDE ANNEXURE-C, C1, C2 AND BEARING NOS. PPO.NO.PSALM/ HVR/ RPR/ 06/ 2024-25 VIDE ANNEXURE-C3 AND C4. PASSED BY RESPONDENT NO.2. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA) 1. The petitioner is before this Court calling in question the order dated 24.07.2024 by which the pension of the petitioner is short paid and recovery is sought to be initiated, for the alleged erroneous salary that was paid to the petitioner, which according to the respondents was in excess than the entitlement of the petitioner. 2. Heard the learned counsel Smt. Sarvamangala Chikkanagoudar and Shri M.R. Hiremathad appearing for the petitioner and the learned AGA Smt. Kirtilata R.Patil - 3 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 appearing for respondent Nos.1 to 3 and Shri B.M. Patil and Shri P.R. Memjoji appearing for respondent No.4. 3. Facts in brief germane are as follows: The petitioner joins the services of the 4th respondent Town Municipal Council, Savanur, as a Pump Operator on 05.01.1995 his salary was fixed at ₹.870/-. The petitioner is said to have been regularised on 05.12.1997 with the pay scale of ₹.870 - ₹.1,520/-. The petitioner then gets promoted to higher cadres, accordingly his salary was fixed. He retires on attaining the age of superannuation on 30.06.2024. 4. On 08.07.2024, the pension payment order of the petitioner is issued, short paying pension and commutation of person and death cum retirement gratuity (DCRG). This short payment is justified by the impugned communication, dated 27.04.2024 holding that the petitioner was paid excess salary right from the date of his appointment on 05.01.1995, and his pension is to be refixed and recovery of the excess salary, paid throughout - 4 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 his career is to be recovered. It is at that juncture, the petitioner is at the doors of this Court. 5. Learned counsel appearing for the petitioner would vehemently contend that the salary that was to be fixed to the petitioner at that stage, was appropriately fixed it was not his misrepresentation, this is carried over for the entire service of the petitioner, for 29 years. The petitioner retires and now the recovery is sought to be done after 30 years of such determination of salary. 6. Per contra, learned HCGP would seek to refute the submission contending that the petitioner was not entitled to a salary and has received salary throughout the career for 30 years. Therefore, the pension is to be refixed and recovery is to be initiated, there can be no fault found with the said proceeding, is the submission of the learned HCGP. 7. Learned counsel appearing for the Municipality would leave a decision to the hands of this Court. - 5 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 8. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties and have perused the material on record. 9. The afore-narrated facts, link in the chain of events, dates and service of the petitioner is not in dispute. Two dates would assume significance i.e., the entry and the exit. The entry of the petitioner into the service is on 05.01.1995 and his retirement on attaining the age of superannuation is on 30.06.2024. The problem lies in the interregnum, the salary of the petitioner was fixed at ₹.870/- on 05.01.1995, not at the request to the petitioner but by the respondents themselves. It is carried on throughout for 29 years, to several rungs of Office, that the petitioner has held and salaries accordingly fixed. He retires on attaining the age of superannuation on 30.06.2024. 10. The State appears to have woken up from deep slumber and realised that the petitioner’s salary 29 years ago, was erroneously fixed and now is wanting to hound the petitioner qua his pension or terminal benefits, - 6 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 including initiating recovery against the petitioner. The action of the State cannot be held to be grossly arbitrary, torturing a retired employee for his pension, all for the folly of the State for having kept quiet or being in deep slumber for 29 years, if further proceedings of recovery are permitted to be continued against the petitioner, it would run foul of what the Apex Court has held in the case of STATE OF PUNJAB AND OTHERS VS. RAFIZ MASIH (WHITE WASHER) AND OTHERS1, wherein it is held as under: “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. 1 (2015) 4 SCC 334 - 7 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 (iii) Recovery from the employees, when the excess payment has 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 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.” 11. The Apex Court placed on 5 postulates of recovery against recovery to initiated against employees who have retired or due to retire. Most of the postulates become applicable to the case, at hand as the salary is not fixed on misrepresentation of the petitioner but on the act of the State. The Apex court in later judgment in the case of THOMAS DANIEL Vs. STATE OF KERALA AND OTHERS2 has held as follows: 13. In State of Punjab v. Rafiq Masih (White Washer)4 wherein this court examined the validity of an order passed by the State to recover the 2 2022 SCC OnLine SC 536 - 8 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxxxxxxxx 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). - 9 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 (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 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 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.” 14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General. 15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.” 12. Therefore there can be no question of permitting recovery or refixation of pension in the case at hand at this - 10 - NC: 2025:KHC-D:1890 WP No. 105330 of 2024 stage, for an event that has happened 29 years ago. For the aforesaid reasons, the following: ORDER (i) The writ petition is allowed. (ii) The impugned notices dated 24.07.2024 and 20.08.2024 issued by the second respondent and fourth respondent vide Annexures-D and E respectively stands quashed. (iii) The petitioner should be entitled to all consequential benefit that flow from the quashment of the notices/order. Sd/- (M.NAGAPRASANNA) JUDGE VNP / CT: ASC List No.: 1 Sl No.: 56