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2016 DIGILAW 136 (KAR)

State of Karnataka v. H. S. Ramakrishna

2016-02-08

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

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ORDER : Mohan M. Shantana Goudar, J. 1. The order dated 20.01.2012 passed by the Karnataka Administrative Tribunal, Bengaluru (for short, Tribunal'), in Application Nos. 153 to 160/2011, is called in question in these writ petitions. 2. The records reveal that the respondents were working as Assistant Geologists on Daily Wage basis since 1984-85. They continued as Daily Wagers till their services were regularized by virtue of the judgment of the Hon'ble Apex Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1 . In the meanwhile, the post of Assistant Geologist was re-designated as Geologist, as per the Government Order dated 21.06.2001. Since the respondents had completed more than 10 years of service as Daily Wagers, on 10.04.2003, a proposal was sent to the State Government by the concerned Chief Engineer for regularization of the respondents. As per the direction of the Hon'ble Apex Court in Umadevi's case (cited supra), a circular dated 13.11.2006 was issued by the State Government regularizing the services of the Daily Wagers, who had completed 10 years of service. 3. The learned counsel for the respondents herein has placed certain records along with the memo dated 18.01.2006, which discloses correspondence between the concerned Chief Engineer and the State of Karnataka in the matter of regularization of the services of the respondents. Certain particulars were called for by the State Government by the State Government from the concerned Chief Engineer by its letter dated 10.11.2006, such as, the list of names of the persons who are entitled for regularization; The details of the persons who have completed 10 years of service as Daily Wagers; The posts in which such persons are to be regularized etc. 4. The concerned Chief Engineer has given his reply/report on 04.04.2007 giving all the details of the employees, including the respondents herein whose services are to be regularized and even the date from which the employees are to be regularized into service. The Chief Engineer has even mentioned the pay-scale to which the regularized employees are entitled to and with effect from which date. Thus, it is clear that the Chief Engineer has disclosed in his letter/report dated 03.04.2007 to the State Government all the details of the employees including the respondents whose services to be regularized and the date on which they have to be regularized and the pay-scale to which they are entitled to. Thus, it is clear that the Chief Engineer has disclosed in his letter/report dated 03.04.2007 to the State Government all the details of the employees including the respondents whose services to be regularized and the date on which they have to be regularized and the pay-scale to which they are entitled to. On receipt of such communication/report, the State Government has permitted the Chief Engineer by its letter dated 14.11.2008 to regularize the services of eight employees as Geologists (earlier known as Assistant Geologists). By virtue of the letter dated 14.04.2008, the order of regularization is issued by the Competent Authority i.e., the concerned Chief Engineer with effect from the date on which the respondents had completed 10 years of service as Daily Wagers. They were even paid the arrears of salary from the date on which they completed 10 years of service, as Daily Wagers. 5. It is needless to observe here that subsequent to the regularization, the respondents are working as Geologists and drawing the pay attached to the post of Geologist. When the case stood thus, an order came to be issued by the State Government as per Annexure-A5 dated 07.12.2010 by which the Chief Engineer has reviewed his earlier order dated 22.11.2008 and consequently directed the respondents to repay the entire salary which they have received from 1995-96 to 2008. As such, the said order dated 07.12.2010, placed at Annexure-A5, came to be questioned by the respondents before the KAT in Application Nos. 153 - 160/2011, which came to be allowed on 20.01.2012. The said order is impugned in these writ petitions. 6. Sri. H.T. Narendra Prasad, learned Additional Government Advocate appearing on behalf of the petitioners submitted that the Chief Engineer had no jurisdiction to regularize the services of the respondents with retrospective effect; though the order of regularization was made on 22.11.2008 by the concerned Chief Engineer, the same was given effect to from the date on which the respondents had completed 10 years of service as Daily Wagers and that the service of the respondents is wrongly regularized with effect from 1994 to 1996 inasmuch as there could not have been retrospective regularization. He further submits that the arrears of salary paid to the respondents from 1994-1996 to 2008 was illegal and therefore, the same is rightly sought to be recovered by the Chief Engineer. He further submits that the arrears of salary paid to the respondents from 1994-1996 to 2008 was illegal and therefore, the same is rightly sought to be recovered by the Chief Engineer. Thus, according to the learned Additional Government Advocate, the order of the Tribunal is bad in the eye of law inasmuch as the respondents cannot take the advantage of the wrong payment made in their favour, by the Chief Engineer. He further submits that it is the Chief Engineer who has taken unilateral decision to regularize the service of the respondents with retrospective effect and for payment of salary from the date on which they completed ten years of service as daily wagers. 7. Sri Naga Prasanna, learned advocate appearing on behalf of the respondents per contra argued in support of the order of the Tribunal. He draws the attention of the Court to various orders passed by the Zilla panchayats in this case to contend that in many matters, the Government and Central Government authorities have passed the orders of regularization with retrospective effect and also for payment of salary from the date on which the officials have completed ten years of service as daily wagers. He further submits that all the respondents are on the verge of retirement. Keeping in view of the peculiar facts and circumstances of the case and to avoid hardship to the respondents, he submits that the order for recovery of salary already paid, ought not to have passed by the Chief Engineer. 8. It is not in dispute that the respondents had been working as daily wagers from 1984-85 to 22.11.2008 on which day an order came to be passed by the Chief Engineer regularizing their service. It is also not in dispute that the order dated 22.11.2008 passed by the Chief Engineer specifies that the services of the respondents are regularized from the date on which they completed ten years of service. Since the respondents had completed ten years of service prior to 1996, the Chief Engineer issued an order of regularization to the respondents from the year 1995-96. i.e., from the respective dates on which the respondents have completed ten years of service as daily wagers. It is also not in dispute that there was correspondence between the concerned Chief Engineer and the State Government prior to passing of the order of regularization. i.e., from the respective dates on which the respondents have completed ten years of service as daily wagers. It is also not in dispute that there was correspondence between the concerned Chief Engineer and the State Government prior to passing of the order of regularization. It is clear from the said correspondence that the Chief Engineer has written a letter to the State Government to the effect that the respondents are entitled to regularization with effect from the date on which they completed ten years of service as daily wagers i.e., from 1994-96. The very letter of the Chief Engineer written to the State Government also makes it clear that the regularized employee would be paid the regular salary with effect from the date of regularization, i.e., from 1994-96 onwards. Even the pay-scale was specified by the Chief Engineer. Thus, it cannot be said that the Chief Engineer has taken unilateral decision to give retrospective effect while passing the order of regularization. In the normal course, in order to avoid burden on the State exchequer, the Chief Engineer as well as the State Government ought to have directed that the services of the respondents could be regularized with retrospective effect notionally, i.e., only for the purpose of pensionary benefits. We find that the Chief Engineer has taken a decision for payment of salary to the respondents with retrospective effect, i.e., from the date of completion of ten years of their service as daily wagers, after consultation with the State Government. However, after two years from the date of such payment, the order dated 7.12.2010 came to be passed by the Chief Engineer for reviewing the earlier order dated 22.11.2008 and for recovering the amount which is already paid to the respondents. Such an order of the Chief Engineer, in our considered opinion, is rightly interfered with by the Tribunal. 9. From the aforementioned facts, it is clear that the respondents are not at all at fault. They have neither misguided any of the higher authorities or the Government, nor they have taken any role in getting their payment with retrospective effect. It is not a case of suppression of materials facts or fraud. In view of the same, it can safely be stated that the respondents have not committed any fraud. They have neither misguided any of the higher authorities or the Government, nor they have taken any role in getting their payment with retrospective effect. It is not a case of suppression of materials facts or fraud. In view of the same, it can safely be stated that the respondents have not committed any fraud. Be that as it may, since we find that the payment was made as far back as in the year 2008 itself, the respondents must have already spent all the arrears of salary received by them. As held by the Apex Court in the case of State of Punjab and others etc. v. Rafiq Masih (White Washer) etc., reported in 2015 AIR SCW 501 that the 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 and the recovery is impermissible in law. 10. Having regard to the peculiar facts and circumstances of the case, we are of the opinion that in this matter also we are of the opinion that the recovery if is made from the respondents, it would be iniquitous and harsh, inasmuch as the respondents may not be in a position to repay the amounts which they have already received prior to about eight years from this day. In view of the above, we do not propose to interfere with the impugned order passed by the Tribunal. Accordingly, writ petitions fail and the same stand dismissed. However, this order will not come in the way of the disciplinary proceedings already initiated by the State Government against the Chief Engineer and any other authorities.