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2022 DIGILAW 974 (KAR)

Shankar Kumar v. Managing Director

2022-07-28

SURAJ GOVINDARAJ

body2022
JUDGMENT 1. The petitioner is before this Court seeking for the following reliefs: "a) ISSUE a writ in the nature of certiorari quashing the impugned pay re-fixation order passed by the 2nd Respondent vide Order No.BMTC/ACCOUNTS/EST/395/ 16-17 dtd. 30/6/2016 passed by the 2nd Respondent vide ANNEXURE-E to the Writ Petition under the facts and circumstances of the case; b) ISSUE a writ in the nature of mandamus directing the Respondents to restore the basic of the Petitioner at Rs.44,070.00 and order for settlement of retiremental benefits to the Petitioner forthwith under the facts and circumstances of the case; c) PASS any other appropriate order or orders or direction as this Hon'ble Court may deems fit to grant by considering the facts and circumstances of the case, in the interests of justice and equity." 2. Petitioner was selected and appointed for the post of Second Division Assistant/Junior Assistant in the respondents- State Road Transport Corporation on probation on 8/1/1975 and on successful completion of probationary period his services came to be confirmed on 8/1/1975. 3. In the year 1999, petitioner was promoted as an Assistant and thereafter, as Establishment Supervisor on 2/8/2005 and reported to the said post on 1/9/2005. The pay of the petitioner was fixed on 14/12/2005 at Rs.44,070.00. The petitioner attained superannuation on 31/3/2016. Respondents vide its order dtd. 30/6/2016, re-fixed the salary on the ground that there were mistakes committed while fixing the pay of the petitioner on 14/12/2005 since the pay which was fixed was more profitable and more than the annual increment for which he was entitled. Upon revision and refixation of the salary, the petitioner was asked to repay the amount in excess received by the petitioner, failing which, the same would be recovered from the petitioner. In that background, petitioner is before this Court seeking for the aforesaid reliefs. 4. Sri. S.B.Mukkannappa, learned counsel for the petitioner would submit by relying upon the decision of the Hon'ble Apex Court in the case of STATE OF PUNJAB AND OTHERS VS. RAFIQ MASIH (WHITE WASHER) AND OTHERS reported in (2015) 4 SUPREME COURT CASES 334 that, even if mistake is committed by the employer in fixation of pay, the same cannot be recovered from a person like petitioner who belongs to Class-III. He submits that the petitioner has nothing to do with fixation which occurred in the year 2005. RAFIQ MASIH (WHITE WASHER) AND OTHERS reported in (2015) 4 SUPREME COURT CASES 334 that, even if mistake is committed by the employer in fixation of pay, the same cannot be recovered from a person like petitioner who belongs to Class-III. He submits that the petitioner has nothing to do with fixation which occurred in the year 2005. Hence, the question of petitioner being liable to repay the amount would be inequitable insofar as petitioner is concerned. Hence, he submits that above prayers are to be allowed. 5. Ms.H.R. Renuka, learned counsel for the respondents -State Road Transport Corporation, would submit that while the salary was fixed, there was a mistake which was committed and that is the reason why Recovery Proceedings are said to have been initiated. She, however, submits on instructions that recovery is not effected till date. 6. Heard Sri. S.B. Mukkanappa, learned counsel for the petitioner and Ms. H.R. Renuka, learned counsel for respondent Nos.1 and 2 and perused the writ papers. 7. The short question that would arise for consideration of this Court is, whether on account of mistake committed by the employer in fixing of the salary can Recovery Proceedings be initiated by an employer on account of said mistake after having paid the said amount to the employee 8. From the facts narrated above and from the documents which have been produced, it is clear that petitioner has no role to play when the basic salary of the petitioner was fixed upon his promotion. Though there is no dispute as regards higher amount was fixed than that which the petitioner is entitled to, the only grievance is as regards to recovery of the difference between the amount entitled to and the amount fixed. 9. As aforesaid, the petitioner having no role to play and not having been involved in the fixation of salary, as held by Hon'ble Apex Court in RAFIQ MASIH'S case, no recovery could be made insofar as the amount which has already been paid, more so, when the employee belonged to Class III or IV (Services) or Group C and D(Services). In view of the above, the decision of the Hon'ble Apex Court squarely applies to the facts of the situation. Respondents though have rightly refixed his salary, recovery proceedings could not have been initiated by the respondents as regards difference in the refixed salary and the earlier paid salary. In view of the above, the decision of the Hon'ble Apex Court squarely applies to the facts of the situation. Respondents though have rightly refixed his salary, recovery proceedings could not have been initiated by the respondents as regards difference in the refixed salary and the earlier paid salary. 10. I answer the point raised by holding that an account of the mistake committed by the employer in fixing of the salary, no recovery proceeding can be initiated by an employer on account of the said mistake after he paid the refixed salary to the employee. As such, I pass the following: ORDER i. The writ petition is partly allowed and certiorari is issued. ii. The order dtd. 30/6/2016 passed by the 2nd respondent insofar as recovery of the differential salary is concerned, is quashed. iii. It is made clear that the fixation of the revised salary would be proper is not being interfered with. iv. Respondents are directed to refund the amount, if any, recovered from the petitioner within a period of eight weeks from the date of receipt of this order.