The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13599 of 2018 Gourahari Mohanty …. Petitioner Mr. S.B. Mohanty, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 29.02.2024 Order No 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
Petitioner in the year 2012 cannot be recovered. This Court in Para 9 & 10 of the Judgment dtd.22.02.2024 has held as follows:- “9. As far as payment of interest on the withheld amount is concerned, Mr. T.K. Mishra, learned counsel argued that as the opposite party was deprived of his benefit of leave encashment for years together, that too without following the mandate of law or passing any order in accordance with the Rules, thus the learned Tribunal was justified in awarding interest on the withheld amount. In the case of Vijay L. Mehrotra -Vrs.- State of U.P. reported in (2001) 9 Supreme Court Cases 687, the Hon‟ble Supreme Court held as follows: “3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement. 4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e., 31-8-1997 till the date of payments.” 10. As already discussed above, the petitioners were not authorized to withhold or to deduct any amount from the credit which was outstanding in favour of the opposite party on the date of his retirement, i.e. 31.07.2017 for encashment of his earned leaves. Also, the petitioners are at fault in not passing an order in W.P.(C) No. 9987 of 2021 accordance with law for effectuating the said deduction. As a corollary, this Court finds the action of the petitioners to be perverse and unwarranted. When the payment was delayed due to the fault of the petitioner authorities, the opposite party cannot be made to suffer. The order passed by the learned Tribunal directing the petitioners to disburse the amount of Rs. 3,88,548/- to the applicant along with interest on such amount from 1.8.2017 till the actual date of disbursement to the applicant at the rate of 9% per annum, is Page 4 of 7 // 5 // quite justified. Since payment of Rs.3,88,348/- has already been made by way of demand draft, the interest has to be paid to the opposite party by the petitioners as per the impugned order of the learned Tribunal.” 5. Mr. S. Rath, learned Addl. Standing Counsel while supporting the impugned order contended that since Petitioner was paid an excess amount of Rs. 98, 533/- i.e. leave salary of excess 36 days, the same when was brought to the knowledge of the Controller of Accounts, he directed the Principal of the College to take a decision on the same vide his letter dtd.23.08.2016. Principal of the College on receipt of the objection from the Controller of Accounts, issued the notice to the Petitioner on 13.04.2017 under Annexure-9 series directing him to refund the amount in question. Petitioner challenging the notice issued on 13.04.2017 approached this Court in W.P.(C) No. 20216 of 2017. Basing on the submission made by
Arguments
2. Heard Mr. S.B. Mohanty, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia challenging the order dtd.13.04.2018 so passed by Opp. Party No. 2 under Annexure-12. Vide the said order the amount received by the Petitioner amounting to Rs. 98, 533/- towards leave salary has been directed to be recovered from the gratuity amount of the Petitioner and accordingly a sum of Rs. 98, 533/- has been kept withheld from the retirement gratuity as due to the Petitioner. 4. Learned counsel for the Petitioner contended that basing on the letter issued by the Principal of the College on 16.03.2012 under Annexure-1, Opp. Party No. 2 sanctioned the leave in question for the period from 01.03.2011 to 01.12.2011 vide letter dtd.13.03.2012 under Annexure-4. Petitioner accordingly received the leave salary // 2 // for the aforesaid period. Petitioner thereafter retired from his service on attaining the age of superannuation on 31.03.2015 as found from Annexure-5. On being retired from his services when the pension paper was submitted, Principal of the College when vide letter dtd.13.04.2017 taking into account the objection raised by the Controller of Accounts directed the Petitioner to refund a sum of Rs. 98, 533/-, which was paid in excess for additional 36 days of leave. Petitioner challenging the same approached this Court in W.P.(C) No. 20216 of 2017. 4.1. This Court vide order dtd.02.02.2018 under Annexure-11, while disposing the writ petition directed Controller of Accounts- Opp. Party No. 3 therein to take a decision on the admissible gratuity amount payable to the Petitioner along with admissible interest. This Court further directed Opp. Party No. 3 to disburse the amount within a period of three (3) weeks. It is contended that even though Opp. Party No. 3 was directed to take a decision, but the matter was taken up by Opp. Party No. 2 without any authority and vide the impugned order Petitioner was once again directed to refund a sum of Rs. 98, 533/- i.e. excess leave salary drawn by him in the year 2012. 4.2. Learned counsel for the Petitioner contended that since after due appreciation of the proposal so submitted by the Principal under Annexure-1, Opp. Party No. 2 permitted the Principal of the College to pay the amount vide letter dtd.13.03.2012 under Annexure-4, there was no occasion on the part of Controller of Accounts to raise objection and for recovery of an amount of Rs. 98, 533/- so received by him in the year 2012, as found from Annexure-9 vide letter dtd.13.04.2017. Page 2 of 7 // 3 // 4.3. Learned counsel for the Petitioner contended that in view of the decision of the Hon’ble Apex Court in the case of Rafiq Masih, since Petitioner has no fault with regard to receipt of the amount in question and the said amount was received in the year 2012, no such direction can be issued to recover the amount from the Petitioner, who is also a retired employee. Hon’ble Apex Court in the case of Rafiq Masih has held as follows:- “12. 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 to as hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: the decisions referred it may, based on (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, 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 far arbitrary outweigh the equitable balance of the employer’s right to recover.” to such an extent, as would 4.4. Learned counsel for the Petitioner also brought to the notice of this Court a recent Judgment passed by this Court on 22.02.2024 so Page 3 of 7 // 4 // passed in W.P.(C) No. 9987 of 2021. Placing reliance on the said decision, Mr. Mohanty contended that the amount received by the
Decision
learned State Counsel, the writ petition was disposed of vide order dtd.02.02.2018 under Annexure-11. 5.1. It is contended that Opp. Party No. 2 on verification of the records found that Petitioner since has received excess leave salary of 36 days amounting to Rs. 98, 533/-, he is liable refund the said amount and accordingly, the same has been kept withheld from the retirement gratuity of the Petitioner. It is accordingly contended that there is no illegality or irregularity with the order passed by Opp. Party No. 2 under Annexure-4. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that basing on the letter issued by the Principal of the College on 16.03.2012 under Annexure-1, Petitioner was sanctioned with leave of 156 days vide letter dtd.13.03.2012 of Opp. Party No. 2 under Page 5 of 7 // 6 // Annexure-4. Petitioner received the leave salary for the entire period from 01.03.2011 to 01.12.2011. Petitioner thereafter retired from his service on attaining the age of superannuation on 31.03.2015. But while considering the claim of the Petitioner to receive his pension and gratuity, Controller of Accounts when raised an objection that Petitioner has received excess leave salary for 36 days amounting to Rs. 98, 533/-, College issued the notice to the Petitioner on 13.04.2017 under Annexure-9 series directing him to refund the amount. 6.1. Petitioner challenging the same approached this Court in W.P.(C) No. 20216 of 2017. This Court vide order dtd.02.02.2018 while disposing the writ petition, directed Opp. Party No. 3- Controller of Accounts to take a decision on the Petitioner’s claim to receive the gratuity and directed Opp. Party No. 2 to take the final decision. This Court further directed Opp. Party No. 2 to take a final call with regard to recovery of the amount, which has been paid in excess to the Petitioner. 6.2. This Court after going through the order impugned and the materials available on record, is of the view that since Petitioner was released with the amount way back in the year 2012 and Petitioner is a retired employee, no recovery can be effected from the Petitioner in view of the decision of the Hon’ble Apex Court in the case of Rafiq Masih so followed by this Court in the case of Union of India & Ors. Vs. Md. Ahmed Baig (W.P.(C) No. 9987 of 2021). In view of the same, this Court is inclined to quash the order dt.13.04.2018 so passed by Opp. Party No. 2 under Annexure-12. While quashing the same, this Court directs opp. Party Nos. 2 & 3 to take effective step for release of the amount of Rs. 98, 533/- Page 6 of 7 // 7 // along with the accrued interest thereon within a period of six (6) weeks 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 Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 11:20:55 Page 7 of 7