The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No. 384 of 2023 Dr. Pramod Kumar Pal & Ors. ..... -versus- The Addl. Chief SECY., Dept. of H And FW, Govt. of Odisha & Ors. ..... Petitioners Mr. K.C. Kanungo, Advocate Opposite Parties Mr. A. Tripathy, AGA Mr. S.K. Patra, Advocate (Opp. Party No. 4)
Legal Reasoning
THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 14.08.2025 Order No. 02 1. This matter is taken up through hybrid mode. 2. Heard Mr. K.C. Kanungo, learned counsel appearing for the Petitioners, Mr. A. Tripathy, learned Addl. Govt. Advocate appearing for the State-Opp. Parties and Mr. S.K. Patra, learned counsel appearing for Opp. Party No. 4. 3. The present writ petition has been filed inter alia challenging order dtd.10.11.2021 so passed by Opp. Party No. 1 under Annexure-1 and the clarification dtd.08.06.2020 under Annexure-2 so issued by Opp. Party No. 1. 4. Learned counsel appearing for the Petitioners contended that Petitioners were extended with the benefit of 3rd RACP in the shape of Grade Pay of Rs.6600/-w.e.f.01.01.2013 vide order dtd.24.01.2019 under Annexure-9. While in receipt of such benefit of Grade Pay @ Rs. 66000/- w.e.f.01.01.2013 in terms of order dtd.24.01.2019 under Annexure-9, Petitioners retired from their services on attaining the Page 1 of 5. age of superannuation. However, while considering the claim of the Petitioners to get the benefit of pension and retiral gratuity, Accountant General raised an objection with regard to entitlement of the Petitioners to get the benefit of Grade Pay @ Rs.6600/- w.e.f.01.01.2013. Basing on such objection, when Govt. held the Petitioners eligible to get the benefit of Grade Pay @ Rs.6600/- w.e.f.09.07.2013 in place of 01.01.2013 vide the impugned clarification dtd.08.06.2020, the matter was carried to this Court in W.P.(C) No. 20886 of 2021. 4.1. However, while complying the order passed in W.P.(C) No. 20886 of 2021 on 23.07.2021, Govt.-Opp. Party No. 1 refused to modify the clarification issued on dtd.08.06.2020, vide order dt.10.11.2021 under Annexure-1 and held the Petitioners eligible to get the benefit of Grade Pay @ Rs.6600/- only w.e.f.09.07.2013 in place of 01.01.2013. Accordingly, the present writ petition was filed challenging the clarification issued on dt.08.06.2020 as well as order dt.10.11.2021 under Annexure-2 & 1 respectively. 4.2. Learned counsel appearing for the Petitioners in course of hearing however fairly contended that Petitioners have no objection, if the Grade Pay @ Rs.6600/- will be made available to them w.e.f.09.07.2013 in place of 01.01.2013. However, it is contended that the financial benefit so extended for the period from 01.01.2013 to 08.07.2013 in terms of order dt.24.01.2019 under Annexure-9 cannot be recovered in view of the decision in the case of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih reported in (2015) 4 SCC 334, so followed in the case of Thomas Daniel Vs. State of Kerala & Others. Hon’ble Apex Court in Para 18 of the Page 2 of 5. judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held 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. But 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. (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.” xxxx xxxx xxxx “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. But 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. Page 3 of 5. (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.” 5. Learned Addl. Govt. Advocate as well as learned counsel appearing for the Accountant General has no serious objection to the course of action proposed by the learned counsel appearing for the Petitioners so far as recovery of the financial benefit for the period 01.01.2013 to 08.07.2013 is concerned. 6. Having heard learned counsel appearing for the Parties, considering the submissions made and the willingness of the Petitioners to get the benefit of Grade Pay @ Rs.6600/- w.e.f.09.07.2013 in terms of the clarification issued on dtd.08.06.2020 under Annexure-2 in place of 01.01.2013, this Court while disposing the writ petition, held that any excess payment received by the Petitioners for the period from 01.01.2013 to 08.07.2013 cannot be recovered in view of the decision in the above noted two (2) cited cases. 6.1. Accordingly, while disposing the writ petition, this Court directs Opp. Party No. 4 to refund the balance withheld gratuity amount after receipt of the NDC from the pension sanctioning authority i.e. Opp. Party No. 3. This Counter accordingly directs Opp. Party No. 3 to issue the required NDC without making any recovery towards the Page 4 of 5. excess payment for the period 01.01.2013 to 08.07.2013. On receipt of such NDC, Opp. Party No. 4 shall take consequential action to release the balance withheld gratuity amount. This Court directs Opp. Party Nos. 3 & 4 to complete the entire exercise within a period of two (2) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. (BIRAJA PRASANNA SATAPATHY) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Aug-2025 18:01:43 Page 5 of 5.