The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10959 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… CEO, Urban Co Operative Bank Ltd., Cuttack …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. L. Kanungo, Advocate For Opp. Parties :
Legal Reasoning
Mr. P.K. Panda Addl. Standing Counsel Mr. S. Patra, Advocate (Opp. Party No. 3) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.12.2025 & Date of Judgment: 09.12.2025 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. L. Kanungo, learned counsel appearing for the Petitioner, Mr. S.P. Das, learned Addl. Standing Counsel appearing // 2 // for the State-Opp. Parties and Mr. S. Patra, learned counsel appearing for the Private Opp. Party No. 3. 3. The present writ petition has been filed inter alia challenging order dtd.19.02.2022 so passed by the Member, Cooperative Tribunal in T.A. No. 24 of 2017 under Annexure-7. 4. Learned counsel appearing for the Petitioner-Bank contended that Private Opp. Party No. 3 since was extended with the benefit of House Rent Allowance at a higher side, vide letter dtd.23.07.2013 so issued by the Petitioner-Bank under Annexure-5, Petitioner when was directed to refund a sum of Rs.1,40,401/- i.e. for excess House Rent Allowance released for the period from April 2006 to November 2012, the same was assailed by the Petitioner by filing a Dispute before the Registrar of Cooperative Societies, Odisha, Bhubaneswar-Opp. Party No. 2 in Dispute Case No. 437 of 2013. The said dispute was rejected vide a common order passed by Opp. Party No. 2 on 17.01.2015 under Annexure-6. 4.1. It is contended that challenging such order passed by the Registrar of Cooperative Societies under Annexure-6, Private Opp. Party No. 3 filed T.A. No. 24 of 2017 before the Member, Page 2 of 10 // 3 // Cooperative Tribunal (in short Tribunal). The Tribunal vide the impugned judgment dtd.19.02.2022 under Annexure-7, set aside the order passed by the Registrar under Annexure-6 and held that Opp. Party No. 3 is not liable to pay excess House Rent Allowance so received by him for the period from April 2006 to November, 2012, placing reliance on the decision of the Apex Court in the case of Rafiq Masih. 4.2. It is the main contention of the learned counsel appearing for the Petitioner-Bank that, while being extended with the benefit of House Rent Allowance, since Opp. Party No. 3 had submitted an undertaking under Annexure-8 on 25.09.2010, in view of such undertaking given by him, decision in the case of Rafiq Masih is not applicable. It is accordingly contended that on the face of such undertaking furnished by the Private Opp. Party No. 3 under Annexure-8, the Tribunal could not have allowed the claim by setting aside the demand made against the Private Opp. Party No. 3 by the Bank in its letter dtd.23.07.2013 under Annexure-5, so upheld by RCS, Odisha. It is accordingly contended that the impugned order is not sustainable in the eye of law and liable to be set aside. Page 3 of 10 // 4 // 5. Mr. S. Patra, learned counsel appearing for the Private Opp. Party No. 3 on the other hand while supporting the impugned order contended that Opp. Party No. 3 was extended with the House Rent Allowance w.e.f. April 2006 to November, 2012 suo moto by the Petitioner-Bank. But vide letter dtd.23.07.2013 under Annexure-5, when he was asked to deposit a sum of Rs.1,40,401/- i.e. the excess House Rent Allowance drawn by him for the aforesaid period, Opp. Party No. 3 filed Dispute Case No.437 of 2013 before Opp. Party No. 2. However, Opp. Party No. 2 vide order dtd.17.01.2015 under Annexure-6 when rejected the dispute, Private Opp. Party challenging the same moved the Tribunal by filing T.A. No. 24 of 2017. 5.1. It is contended that since the Private Opp. Party No. 3 was extended with the benefit of House Rent Allowance for the period April 2006 to November, 2012 and he has no role in getting that House Rent Allowance in excess, if any, the Tribunal placing reliance on the decision in the case of Rafiq Masih so followed in the case of Thomas Danial, set aside the order passed by the Registrar of Cooperative Societies vide the impugned order dtd.19.02.2022 under Annexure-7. Page 4 of 10 // 5 // 5.2. It is contended that since without any fault of the Private Opp. Party No. 3, he was released with the House Rent Allowance, the Tribunal rightly applied the ratio decided in the case of Rafiq Masih. It is further contended that decision given by the Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 was followed in the case of Thomas Daniel Vs. State of Kerala & Others reported in 2022 SCC OnLine SC 536 as well as Jogeswar Sahoo & Ors. Vs. The District Judge, Cuttack & Ors. (SLP(C) No. 5918 of 2024). 5.3. Hon’ble Apex Court in Para 18 of the Judgment in the case of Rafiq Masih and 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 Page 5 of 10 // 6 // 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. Be 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.” Page 6 of 10 // 7 // 5.4. Hon’ble Apex Court in Para 11 of the Judgment in the case of Jogeswar Sahoo has held as follows:- “11. In the case at hand, the appellants were working on the post of Stenographers when the subject illegal payment was made to them. It is not reflected in the record that such payment was made to the appellants on account of any fraud or misrepresentation by them. It seems, when the financial benefit was extended to the appellants by the District Judge, Cuttack, the same was subsequently not approved by the High Court which resulted in the subsequent order of recovery. It is also not in dispute that the payment was made in the year 2017 whereas the recovery was directed in the year 2023. However, in the meanwhile, the appellants have retired in the year 2020. It is also an admitted position that the appellants were not afforded any opportunity of hearing before issuing the order of recovery. The appellants having superannuated on a ministerial post of Stenographer were admittedly not holding any gazetted post as such applying the principle enunciated by 13 this Court in the above quoted judgment, the recovery is found unsustainable.” 5.5. A further submission was also made that, the undertaking given by the Opp. Party No. 3 under Annexure-8, so relied on by the Bank cannot be made applicable and it cannot be treated as an undertaking for refund of excess House Rent Allowance received, if any. It is contended that such an undertaking was furnished on 25.09.2010 with regard to fixation of pay of the Opp. Party No. 3 and such undertaking was never given giving a liberty to the Bank to recover the excess House Rent Allowance, if any paid to him. Page 7 of 10 // 8 // 5.6. It is also contended that the House Rent Allowance relates to the period April 2006 to November, 2012 and the undertaking was only given on 25.09.2010, but on a different context. It is accordingly contended that such an undertaking cannot be taken as an undertaking by the Opp. Party No. 3 to pay the excess House Rent Allowance, if any paid by the Bank. Making all these submissions learned counsel appearing for the Private Opp. Party No. 3 contended that no illegality or irregularity has been committed by the Tribunal in allowing the Petitioner’s claim while setting aside the order passed by the Registrar of Co-operative Societies-Opp. Party No. 2. 6. Having heard learned counsel appearing for the Parties, considering the submissions made, this Court finds that Opp. Party No. 3 while in service, he was in receipt of House Rent Allowance from the Petitioner-Bank w.e.f. April 2006 till November, 2012. However, vide letter dt.23.07.2013 under Annexure-5, when Opp. Party No. 3 was directed to refund a sum of Rs.1,40,401/- towards excess House Rent Allowance drawn by him, Petitioner challenging the same, filed a dispute in Dispute Case No. 437 of 2013 before Opp. Party No. 2. However, Opp. Party No. 2 vide order dtd.17.01.2015 under Annexure-6 when dismissed the Dispute Case Page 8 of 10 // 9 // by upholding the demand of the Bank, Petitioner challenging the same, moved the Tribunal by filing T.A. No.24 of 2017. 6.1. As found, the Tribunal placing reliance on the decision in the case of Rafiq Masih held the demand made by the Bank as not sustainable in the eye of law. This Court considering the dispute involved, is also of the view that since Opp. Party No. 3 without any fault of his own was released with the House Rent Allowance for the period April 2006 to November, 2012, no recovery can be made towards any excess payment, in view of the decision in the case of Rafiq Masih so followed in the case of Thomas Danial as well as Jogeswar Sahoo as cited supra. 6.2. It is also the view of this Court that, the undertaking given by the Opp. Party No. 3 under Annexure-8 is not applicable to the claim involved as the said undertaking was given only on 25.09.2010 and that too with regard to any excess payment received by him because of fixation of pay. 6.3. In any view of the matter, this Court finds no illegality or irregularity with the impugned order dt.19.02.022 under Annexure-7 and accordingly is not inclined to interfere with the same. Page 9 of 10 // 10 //
Decision
7. The writ petition accordingly stands dismissed. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 9th December, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Dec-2025 18:04:32 Page 10 of 10