Yaqub Kali S/O Abdur Razak vs The Deputy Commissioner, Bidar on 9 March, 2010

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA

DATED THIS THE 9TH DAY OE MARCH, 

BEFORE

THE) HON'BLE MR. JUSTICE TAIIIT  % 

WRIT PETITION NO.83Q20 :OE312GoéAIISR)OI 

BETWEEN

YAQUB ALI.

S/O ABDUR  

AGED 63 YEARS,   _  

RETIRED CHIEF OFFICER, 

CHITTACUPPA;   T. T 
TMC,DIST.§B'1_DAR.       ...PE3'I'ITIONER

[BY .':f¢I3{I"1\/I'O:..I:IffI%v\1\;I::Z¥V'g/4IJE3I::)'*SPAMSUf)DIN, ADV. ,)

AND 

1. THE I5E15UT3I'~CO.I\"4I.zIIssIONER,
EII:;AR._  I

% A'  "E:HE'*COENTR(5)L'I;1$R,
 I STATEVACITCOIJNTS DEPT,
 'em FL.QQR,fCAUVERY BHAVAN,

EAI~IGALOI;?.E.
3. THE.ASSISTANT CONTROLLER,

' LOCAL_.AUDIT CIRCLE, BIDAR. ...RESPONDENTS



id

(BY SR1 M KUMAR, AGA)

**$****

This writ petition is filed under Articles 4' 22€f~a1'3d
227 of the Constitution of India, praying to  the~--,
impugned orders of the respondent No.3._vide dated C 
12.3.2007 of the Assistant Controller L;)cal'A'1;.dit Circle,  'C
Bidar, as Annexure A by a writ of certiorari,__addresseVd
to the DTC) Bidar and S.T.O. Hnumndabadlxvith a co'pj?"t§0
the petitioner and etc.,  _    " '   

This petition coming oriifor _fina'1'~.h:e-arinng; this day,
the Court made the following: ,  "  

The petitioner  Mtinicipalities and
eventually on:'fV'Vthe'»tVdate of" superannuation he was

working as a  Town Municipal Council,

ChiT"'~§u13ld?l>l'a    District. He attained

  superajnnuationéonll30.04.2005. Pursuant to the order

 asltstiff'i;;f°1"3,.:'£a.20o5 the Assistant Controller, Local '

Audit Bidar, 1'.e., respondent No.3 sanctioned

 rnonthlgr pension and all other terminal and retiral

C 'aloenefits which are in the nature of gratuity, etc., But

,¢,»-"



however the grievance of the petitioner is that the local
audit was conducted by respondent No.3 andfitppwas
found that one extra increment was 
petitioner thus While calculating the   
Rs.8.62I3/- was paid in excess  
sought to be recovered. pit" isila--1so~--.his 
reduction of his lI1C1"€II1€HlL.lfI't)§liI'1  byl
the petitioner also   not in
dispute that pursuan,t._,:to.t  A has

been passe_di__.:a1lid»r'.it  that"Vthepetitioner was paid

the s.aidlVla1'nount'l'}in excess and which is directed to be
recovered 4-fromp 'injs.'r'1'io1ri»thly pension. This order was

passed inlthe  The petitioner allowed the

" V'   to lblemrlecovered. It appears the petitioner

"was' "co"1'.re~spondence with the respondent for

rest_ora_.t'ion.:'~"of the pension, but however that has been

   not adhered to. Hence the present petition for quashing

"~of'Annexure A and also for refixation of pension. O





notice the State Government has entered appearance
and filed statement of objections. V l

2. Learned counsel appearing for 
vehemently submits placing rel_iance 
of the Apex Court supporting  
is not responsible for  of' and '
if any amount is  ing.leXcegssl"t.he"satire cannot be
recovered. He further V"a..di_rection may be
issued to  pension which
he was   was initiated.

 __AG1A supports the impugned
endorsernermgl  as a result of wrong pay

f1xa.}tion~the p'e'ti.tioner."s pension was wrongly fixed and it

»  c.orrec.ted.'_ later. But in the meantime the petitioner

.'was7 paiudf-jeiécess pensionary benefits to the tune of

  He further submits that the said amount

V'  has been recovered from the Dearness Allowance

I
r" 
//'{.----..----------.:..
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attached to the pension of the petitioner. He further
submits that the recovery was done in the year"'--2007
and the writ petition having been filed in 
is barred by laches. He further  
question of restoration of   

circumstance does not arise,

4. I have given my  Consideration.
Apparently, the petitioiner   for the folly
of the admini-sytifatioiniiindeed the pay
fixation is'  Administration and
the  the consolidated fund of the
State.   this point of time it is rather

too«iatei'to pin "poin_tas to who was responsible for fixing

  .__of the petitioner with an additionai

ingremerii', -1'  however, the fact remains that on the

 basis ..o1f.:.1ast drawn salary the pension of the petitioner

it fizwred. Indeed it is to be noticed that if the petitioner



(3

is not in any way responsible for wrong fixation___of the
pension the law is very clear that the said'
which is paid in execs cannot be  
folly is attributed to the petitioner.»._In  it A
it is not so. Hence I am of the  2
are required to restore the»s:sfid>anioti.nt 
recovered from the pe.titioner'. iffléiny decision is
required one can refer  o'f_V_the Apex Court
in several  referred :

 UNION or INDIA

reported._ "A521, the Apex Court has

opined thatiitVvisV'not'.ope'n for the employer to recover the

amdt1nt~whielh'-hgismalready been paid as pension when

A  foilgr is 'attribtited to the employee.

A  Anidentical View has also been taken by the Apex

via the case of SAHIB RAM .vs. STATE or

   reported in 11995 SCC (Suppl. 1) £8. /fl



5. Having regard to the law laid down, I  the

View that there was no justification for the;"'respenderi«t_

to recover the said amount.

I'

6. The next question would the the .'restoi?ati.o'n.do.--.V

the original pension. Viiadeed   the

respondents are required to""1'ecaic"uI_ate'an'd"determine
the pension which is  fpetiigioner. It is no
doubt true    that such a
  and it is found that
the    pension less one
increm:ze--nt.«'.  may, the fact remains that the

petitioner h'ad_dserved"-thie institution and there can be a

  on thewpart of the State in calculating the

 s.pen.sion:f am of the View that a direction is also

 ' "per;1sionv...- :Hence the following order.

1"'3";lw§l'€C.1'  issued to the State to recalculate the

 

 



ORDER

[1) Petition is allowed in part. The 3

are directed to refund the sun1__Qf _ V’

which was recovered; as eX(:eS«s

(2) The responder1t@é”~.._Asheii1.__ ‘reealetilate then’

pension vpayab1.e”‘t.:d_:’–the petitioner having
regard to ‘t}”:;e’ received by him

d.urin’g. hiés 1ast:.ieg.V6f’

CQn1p1ié1rt§f;e_ of tl’1e”‘di1*e:¢;tiQaf1s in three months from

t.he date of receipt ,, ‘ ‘

Rule 15* issueid ..$1nd’.’–rn9ade””absolute to the extent

indieherted kai:;3ve; = .. _ “””” ”
EUDGE