The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6031 of 2024 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Puspanjali Rout …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. L. Mohanty, Advocate For Opp. Parties
Legal Reasoning
this Court in the present Writ Petition. 5.1. However, considering the submissions made by learned counsel for the petitioner that petitioner is not aggrieved with regard to the fixation of her pay vide office order dated 28.02.2024 under Annexure- 12, this Court is of the view that since the petitioner till her retirement was extended with the financial benefits on being sanctioned, no recovery can be effected with regard to any excess payment drawn by her in view of the decision of the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel as cited (supra). Placing reliance on the decisions in the case of Rafiq Masih and Thomas Daniel as cited (supra), this Court is of the view that no recovery of any excess payment drawn by the petitioner can be made in terms of the order dated 28.02.2024. Therefore by upholding order dated 28.02.2024, this Court directs O.P. No.3 to take appropriate steps for refund of the recoverable Page 9 of 10 // 10 // amount as indicated in Annexure-7. The amount as directed be refunded within a period of 2(two) months from the date of receipt of this order. It is needless to mention that pension and other pensionary benefits be revised in terms of order passed on 28.02.2024 under Annexure-12. 6.
Arguments
: Mr. S. Jena, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:11.07.2024 and Date of Judgment: 11.07.2024 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J. 1. Heard Mr. L. Mohanty, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate for the State. 2. Petitioner has filed the present Writ Petition inter alia with the following prayer:- // 2 // “It is, therefore, prayed that this Hon’ble Court may graciously be pleased to issue notice to the opp. Parties calling upon them to file show cause as to why: (i) A direction shall not be issued to quash the order of reduction of pay dated 30.06.2022 issued by the opp. Party No.3 under Annexure-6 and the order of recovery from the gratuity of the petitioner of Rs.2,73,458.00 dated 02.08.2022 issued by the opp. Party no.4 under Annexure-7 and the order dated 15.09.2023 under Annexure- 10 issued by the Opp. Party No.4 taking into consideration the judgment of Hon’ble Apex Court of India rendered in between State of Punjab Versus Their Vocational Staffs reported in 2017 (ii) OLR SC 503 as well as judgment passed by the Hon’ble Apex Court of India in between State of Punjab Versus Rafique Masique reported in AIR SC 696. (ii) After hearing the parties be pleased to quash the order of reduction of pay dated 30.06.2022 under Annexure-6 and consequently the order of recovery issued by the Opp. Party No.4 dated 02.08.2022 under Annexure-7 and order dated 15.09.2023 issued by the Opp. Party NO.3 under Annexure-10. (iii) The Opp. Parties be further directed to re-fix the pension and pensionary benefits of the petitioner as per her last pay drawn of on 31.05.2022 as per Rule-47 of OCS (Pension) Rule, 1992 and release all her arrear including gratuity amount of Rs.2,72,485.00 with 9% interest thereon from the date of entitlement till payment is released.” 3. Learned counsel for the Petitioner contended that the petitioner entered into service as an Assistant Teacher where she joined on 01.02.1994. Petitioner after such joining was extended with the Page 2 of 10 // 3 // financial benefits as due and admissible till she attained the age of superannuation on 31.05.2022. 3.1. It is contended that after her retirement BEO, Harbhanga-O.P. No.3 without following the principle of natural justice and without issuing any prior show-cause suo-moto revised the benefit as was extended earlier in favour of the petitioner during her service career vide office order dated 30.06.2022 under Annexure-6. 3.2. It is contended that petitioner challenging order dated 30.06.2022, approached this Court in W.P.(C) No.30325 of 2022. This Court vide order dated 30.11.2022 under Annexure-9 disposed of the Writ Petition by holding that claim of the petitioner is covered by the decision of this Court so passed in W.P.(C) No.23931 of 2017 (State of Odisha and Others Vrs. Ashok Kumar Mohapatra and Another). Page 3 of 10 // 4 // 3.3. It is contended that even though order dated 30.11.2022 was passed on concession of the learned counsel appearing for the State, but O.P. No.3 by holding that decision in the case of Ashok Kumar Mohapatra as cited (supra) is not applicable to the claim of the petitioner, passed the impugned order on 15.09.2023 under Annexure-10 by upholding his earlier order so passed on 30.06.2022. 3.4. It is contended that since the order in W.P.(C) No.30325 of 2022 was passed on concession, O.P. No.3 could not have held that the decision in the case of Ashok Kumar Mohapatra as cited (supra) is not applicable to the case of the petitioner. 3.5. However, in course of hearing, learned counsel for the petitioner contended that during pendency of the Writ Petition self-same O.P. No.3 passed a fresh order on 28.02.2024 under Annexure-12. It is contended that petitioner is not aggrieved by the office order so passed on 28.02.2024 under Page 4 of 10 // 5 // Annexure-12 and the fixation as made is no way causing prejudice to the petitioner. 3.6. However, it is contended that since till attaining the age of superannuation on 31.05.2022, petitioner was allowed with the financial benefit all through with due fixation of her Scale of Pay, because of the fixation as made in the office order dated 28.02.2024 under Annexure-12, no recovery can be made with regard to any excess payment drawn by the petitioner, in view of the decision of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih so followed in the case of Thomas Daniel Vs. State of Kerala & Others. 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 Page 5 of 10 // 6 // 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 the employers, would be 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 the outweigh employer’s right to recover. the equitable balance of 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. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein the employers, would be 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). Page 6 of 10 // 7 // (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 duteis 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 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.” from 3.7. It is accordingly contended that while upholding the order dated 28.02.2024 so passed under Annexure-12, the recovery that has been effected from the petitioner be refunded with passing of an appropriate order. 4. Mr. S. Jena, learned Addl. Govt. Advocate though did not dispute the order passed on 28.02.2024 under Annexure-12 during pendency of the Writ Petition, but contended that since the petitioner got some financial benefit to which she is not otherwise entitled to, petitioner is liable to refund Page 7 of 10 // 8 // the said amount and the said amount has been rightly recovered from her gratuity. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner entered into service with the date of joining on 01.02.1994. It is also found from the record that till her attaining the age of superannuation, petitioner was extended with all financial benefits as due and admissible. But after her retirement when O.P. No.3 revised his entitlement with passing of order dated 30.06.2022 under Annexure-6, the matter was carried to this Court in W.P.(C) No.30325 of 2022. This Court vide order dated 30.11.2022 under Annexure-9 disposed of the same by holding that claim of the petitioner is covered by the decision of this Court in the case of Ashok Kumar Mohapatra as cited (supra). On the face of such order which was passed on concession, O.P. No.3 when passed a fresh order on 15.09.2023 Page 8 of 10 // 9 // under Annexure-10, the matter was again carried to
Decision
The Writ Petition is accordingly disposed of. Orissa High Court, Cuttack Dated the 11th June, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jul-2024 15:28:32 Page 10 of 10