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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9190 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Mahesh Prasad Ray …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. S. Mallik, P.C. Das, M. Mallik & S. Mallick. For Opp. Parties : M/s. Mr. C.K. Pradhan, Addl. Government Advocate Mr. D. Nayak, Adv. appearing on behalf of Mr. S.K. Patra, Adv. for O.P.4 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:28.11.2024 and Date of Judgment:28.11.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.24.08.2020 so passed by // 2 // Opposite Party No.3 under Annexure-8 and the letter issued by the self-same Opposite Party No.3 on 24.08.2020 under Annexure-10 directing for recovery of an amount of Rs.99,698/-. 4. Learned counsel for the Petitioner contended that Petitioner while in service, he was extended with the benefit of increment w.e.f. 01.02.2016. 4.1. It is contended that while in receipt of such benefit of increment as well as subsequent increment, Petitioner retired from his services on attainting the age of superannuation on 31.03.2019. 4.2. It is contended that after such retirement of the Petitioner from his services, when his pension papers were submitted, objection was raised by the Accountant General-Opposite Party No.4 with regard to sanction of the increment in favour of the Petitioner on 01.02.2016 on promotion vide Annexure-6 and consequential letter issued under Annexure-7. 4.3. It is contended that after receipt of such objection from the Accountant General vide letter issued under Annexure-6 and consequential letter issued by Opposite Party No.2 under Annexure-7, Opposite Party No.3 without issuing any show cause and without giving any opportunity of hearing to the Petitioner suo motu cancelled the increment so sanctioned in favour of the Page 2 of 10 // 3 // Petitioner w.e.f. 01.02.2016 vide order dtd.24.08.2020 under Annexure-8. After such withdrawal of the benefit vide order dtd.24.08.2020 under Annexure-8, Opposite Party No.3 vide letter dtd.24.08.2020 under Annexure-10 directed the Petitioner to pay a sum of Rs.99,698/- i.e. excess payment drawn by him because of such sanction of increment w.e.f. 01.02.2016. 4.4. It is contended that since prior to withdrawing the benefit of increment vide order dtd.24.08.2020 under Annexure-8, Petitioner was never given an opportunity of hearing with issuance of the show cause, the same order is not sustainable in the eye of law. In support of the same, learned counsel for the Petitioner relied on the decision of the Hon’ble Apex Court in the case of State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1. 4.5. Hon’ble Apex Court in the case of Rajesh Agarwal in Para- 41 & 42 has held as follows:- “41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269], a two- Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to that an be heard. This Court further held administrative action which involves civil consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9) Page 3 of 10 // 4 // “9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” 42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a seven- Judge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.” 4.6. It is also contended that since by the time Petitioner was directed to refund a sum of Rs.99,698/- Petitioner had already retired from service, in view of the decisions of the Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih, AIR 2015 SC 696 so followed in the case of Thomas Daniel Vs. State of Kerala & Others, 2022 Live Law (SC) 438, no recovery Page 4 of 10 // 5 // is permissible from the Petitioner being a retired employee. Hon’ble Apex Court in Para 18 of the judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held as follows. xxx xxx xxx “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 employers, would be the impermissible in law: recoveries by (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. “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. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few Page 5 of 10 // 6 // 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.” 4.7. It is accordingly contended that the impugned order passed by Opposite Party No.3 under Annexure-8 on 24.08.2020 is not only illegal but also the direction issued to recover a sum of Rs.99,698/- from the Petitioner vide letter dtd.24.08.2020 under Annexure-10 and it requires interference of this Court. 5. Even though notice of the Writ Petition has been issued since 16.03.2021, but no counter affidavit has been filed as yet. However, basing on the available
Legal Reasoning
materials, Mr. Pradhan, learned Addl. Government Advocate contended that since while processing the pension paper of the Petitioner, Opposite Party No.4 Page 6 of 10 // 7 // found that Petitioner has been wrongly extended with the benefit of increment w.e.f. 01.02.2016 objection was raised by Opposite Party No.4 vide letter dtd.19.03.2020 under Annexure-6. Thereafter, Opposite Party No.2 vide letter dtd.01.06.2020 under Annexure-7 requested Opposite Party No.3 to comply the objection so raised by Accountant General. 5.1. It is contended that while complying such objection raised by Opposite Party No.4, Opposite Party No.3 when found that Petitioner has been wrongly allowed the benefit of increment w.e.f. 01.02.2016, the same was withdrawn vide order dtd.24.08.2020 under Annexure-8. Because of such withdrawal of the benefit of increment so allowed in favour of the Petitioner w.e.f. 01.02.2016, Petitioner was held liable to refund a sum of Rs.99,698/- and accordingly the letter dtd.24.08.2020 under Annexure-10 was issued. 5.2. It is contended that since Petitioner was wrongly allowed the benefit of increment w.e.f. 01.02.2016 to which he was not otherwise entitled to, no illegality or irregularity can be found with regard to the order passed by Opposite Party No.3 on 24.08.2020 under Annexure-8 and consequential direction issued for recovery of an amount of Rs.99,698/- vide letter dtd.24.08.2020 under Annexure-10. Page 7 of 10 // 8 // 5.3. It is also contended that the entire amount has been recovered from the pensionary benefits of the Petitioner in the meantime. 6. To the submission made by learned Addl. Government Advocate, Mr. Mallik, learned counsel for the Petitioner contended that over and above the amount reflected in Annexure-10, further sum of Rs.82,071/- has also been recovered from the Petitioner. 6.1. It is contended that since the Petitioner is a retired employee, no recovery can be effected from him in view of the decisions as cited (supra). 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was extended with the benefit of increment w.e.f. 01.02.2016 while he was in service the said benefit continued till the Petitioner attained the age of superannuation on 31.03.2019. Only when the pension papers was submitted before Opposite Party No.4 objection was raised by Opposite Party No.4 vide letter dtd.19.03.2020 under Annexure-6 raising objection to the effect that Petitioner is not eligible to get the benefit of increment w.e.f. 01.02.2016 on promotion. Accordingly, Opposite Party No.2 vide letter dtd.01.06.2020 under Annexure-7 requested Opposite Party No.3 to comply the objection. Page 8 of 10 // 9 // 7.1. Since no counter affidavit has been filed disputing the stand of the Petitioner that prior to passing of the impugned order dtd.24.08.2020 under Annexure-8, no opportunity of hearing has been given with issuance of the show cause, this Court on the ground of non- compliance of the principle of natural justice and placing reliance on the decision in the case of Rajesh Agarwal as cited (supra) is inclined to quash the order dtd.24.08.2020 so passed by Opposite Party No.3 under Annexure-8. While quashing the same, this Court directs Opposite Party No.3 to take a fresh decision with regard to entitlement of the Petitioner to get the benefit of increment w.e.f. 01.02.2016, by giving due opportunity of hearing to the Petitioner. Such a fresh decision as directed be taken within a period of three (3) months from the date of receipt of this order. 7.2. However, placing reliance on the decision in the case of Rafiq Masih so followed in the case of Thomas Daniel, this Court observe that on such consideration, if it is found that Petitioner is not entitled to get the benefit of increment w.e.f. 01.02.2016, his pay may be re-fixed but no recovery can be effected from him as Petitioner is a retired employee. Page 9 of 10 // 10 // 8. With the aforesaid observations and directions, the
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 28th of November, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2024 13:54:38 Page 10 of 10