The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3404 of 2024 Udhabananda Barik State of Odisha & others -versus- …. Petitioner Mr. P.K. Mishra, Advocate …. Opposite Parties Mr. D. Mohapatra, A.S.C. W.P.(C) No.42651 of 2023 Dambarudhar Nayak State of Odisha & others -versus- …. …. Petitioner
Legal Reasoning
Mr. S. Behera, Advocate Opposite Parties Mr. S. Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 20.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Since both the aforesaid writ applications involved a common question of law and are based on identical facts, accordingly both the cases are taken up together for hearing and are being disposed of by the following common order. Further, for the sake of convenience the facts involved in W.P.(C) No.3404 of 2023 is taken up for analysis. 3. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 4. The Petitioner has filed the present writ application with the following prayer: “It is prayed, therefore, that this Hon'ble Court may graciously be pleased to; (i) Issue a writ in the nature of mandamus or any other Order No. 01. // 2 // appropriate writ/writs by quashing the impugned orders of recovery vide No. 1499 dated 19.10.2023, vide No. 1767 dated 07.12.2023 and vide No. 109 dated 31.01.2024 under Annexures- 3, 4 and 5 respectively; (ii) And further be pleased to direct the Opp. Parties to restore the pay as was received prior to issue of impugned order under Annexure-3 and direct to disburse the recovered amount to the petitioner within a stipulated period of time. And pass such other order (s), direction (s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner;” 5. The factual background leading to filing of the present writ application, in short, is that pursuant to order dated 17.06.1999, the Petitioner was appointed as a peon against a Group-D post at the Odisha Administrative Tribunal, Bhubaneswar Bench in the scale of pay of Rs.2550-55-2660-60-3200/- with D.A. and other allowances as admissible from time to time. Pursuant to the aforesaid appointment order, the Petitioner joined in service on 21.06.1999, thereafter, the Petitioner continued in service. It further appears that the scale pay of the petitioner has been revised from time to time under ORSP Rule and he has also been given periodical increment by the authorities. On 19.10.2013, the Opposite Party No.2 i.e. Odisha Administrative Tribunal, basing upon an audit calculation, re-fixed the pay of the Petitioner w.e.f. 01.06.2009. Thereafter, the Opposite Party No.3 i.e. Officer-in-Special Duty, OAT, Bhubaneswar passed an order dated 07.12.2023 for recovery of an excess amount of Rs.1,01,063/- from the salary of the Petitioner on the ground that the same has been paid in excess of the amount admissible to the Petitioner as salary w.e.f 01.06.2009. Pursuant to such letter dated 07.12.2023, the Opposite Party No.3 has illegally and arbitrarily issued a letter dated 31.01.2024 to the petitioner for recovery of the excess amount from his salary w.e.f. January, 2024. Accordingly, a sum of Rs.10,106/- is being recovered // 3 // from the salary of the Petitioner w.e.f. January, 2024. 6. Learned counsel for the Petitioner at the outset submitted that on the basis of audit objection no recovery can be made. He further contended that before passing the order for recovery of excess amount as claimed by the Opposite Party No.2, no opportunity whatsoever was provided to the Petitioner. In such view of the matter, learned counsel for the Petitioner submitted that the order under Annexure-5 is unsustainable in law and accordingly, it was prayed that the same be quashed. 7. Learned Additional Standing Counsel on the other hand submitted that the letter dated 31.01.2024 under Annexure-5 is based on an order dated 12.09.2023 whereunder, on an audit objection, it has been shown that the Petitioner has been paid an excess amount to the tune of Rs.1,01,063/-. In such view of the matter, learned Additional Standing Counsel submitted that the State-Opposite Parties have not committed any illegality in recovering the amount from the salary of the Petitioner w.e.f. January, 2024. In such view of the matter, learned Additional Standing Counsel submitted that the writ application is devoid of merit and accordingly, the same should be dismissed. 8. Learned counsel for the petitioner in course of his argument, referred to the judgment of the Hon’ble Supreme Court in the case of Divisional Superintendent Eastern Railway, Dinapur & ors. vs. L.N. Keshari & ors. reported in 1974 AIR-SC-1889 as well as in Abhaya Singh vs. State of Rajasthan reported in 2002 (2) ATT-HC-438 in support of his contention. He further contended that in L.N. Keshari’s case (supra), the Hon’ble Apex Court has held that the employer having fixed the scale the same could not be reduced without giving any opportunity to the respondents. Similarly, in Abhaya Singh’s case (supra), the Hon’ble High Court of Rajasthan held that the benefit, which was extended in favour of the Petitioner, was withdrawn after // 4 // long spell of time i.e. lapse of more than 10 years and as such the same will be wholly unjust, unfair and improper to withdraw the same. By relying upon aforesaid legal propositions, learned counsel for the Petitioner submitted that the Opposite Parties have committed an illegality in recovering the amount from the Petitioner under Annexure- 5 to the writ application. 9. Having heard the learned counsels appearing for the respective parties, and on a careful examination of the submission made by learned counsels appearing for the respective parties as well as the background facts of the present case and keeping in view the materials on record, this Court observes that initially the salary was fixed by the Opposite party No.2-employer wherein the Petitioner had no role. Further, it appears that such work salary in a fixed scale of pay was being paid to the Petitioner for a long time. However, on the basis of the audit objection the authorities without providing any opportunity to the Petitioner issued an order for recovery of the excess payment to the petitioner. In the aforesaid factual backdrop, this court found that the position of law is well settled that on the basis of audit objection only no recovery can be made without providing an opportunity of hearing to the petitioner. Moreover, in the present case, the recovery is being made after a long lapse of time and for no fault on the part of the Petitioner. Similarly, this Court also referred to the latest judgment of the Hon’ble Supreme Court in State of Punjab vs. Rafiq Masih & ors. reported in 2015 (2) SCC (L&S) 33. On perusal of the aforesaid judgment, this Court observed that the Hon’ble Apex Court has laid down certain parameters with regard to recovery from the employees. The parameters laid down by the Hon’ble Apex Court further provides that no recovery from the employees belonging to Class-III and Class-IV service (Group-C and Group-D service) shall be made. The parameters also provide that recovery from the employee, when the excess payment has // 5 // been made for a period in excess of five years, before the order of recovery is issued, shall not be made from such employee. By applying the aforesaid parameters laid down by the Hon’ble Apex Court in Rafiq Masih’s case, this Court observed that even assuming that the Petitioner as a Group-D employee was paid excess salary, no wrong can be attributable to the Petitioner. Moreover, such salary which was fixed by the authorities, even if by applying the wrong scale of pay, was being paid for a long time. Therefore, the Opposite Parties should have first provided an opportunity of hearing to the Petitioner before passing any final order. No such opportunity, admittedly, having been provided to the petitioner in the present case before passing the impugned orders under Annexures-4 & 5, this Court is of the considered view that the impugned orders under Annexures-4 & 5 are unsustainable in law. On making such observations, this Court has not expressed any opinion with regard to the sustainability of such recovery orders against the Petitioner in view of law laid down by the Hon’ble Apex Court. 10. In view of the aforesaid analysis, this Court deems it proper to quash the impugned orders under Annexures-4 & 5, accordingly, the same are hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to provide an opportunity of hearing before passing any final order on the basis of the audit objection as has been referred to in impugned orders under Annexures-4 & 5. Further, the amount, which has already been recovered, be credited to the account of the Petitioner within a period of six weeks from the date of communication of certified copy of this order. The entire exercise be carried out within a period of eight weeks from the date of communication of certified copy of this order by the Petitioner. W.P.(C) No.42651 of 2023 11. In view of the detailed order passed in W.P.(C) No.3404 of 2024, the present writ application is being disposed of in terms of the // 6 // said order. Further, while allowing this writ application, this Court hereby quashed the order under Annexure-5 and further the matter is remanded back to the Opposite Party No.3 to re-consider the case of the Petitioner by providing him an opportunity of hearing and the final order shall be passed within a period of two months from the date of communication of certified copy of this order by taking into consideration the observations made in W.P.(C) No.3404 of 2024 and the final order so passed be communicated to the Petitioner within two weeks from the date of passing such order. 12. With the aforesaid observations/ directions, both the writ applications stand disposed of. 13. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 23-Feb-2024 11:10:11