Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 16851 OF 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Rajashree Nayak ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For Petitioner : M/s B.S. Tripathy-1, A. Sahoo and A. Tripathy, Advocates. For Opp. Parties: Mr. S. Jena, Standing Counsel S&ME [O.Ps. No.1 to 3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing and judgment : 16.01.2023 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order dated 13.06.2022 passed by opposite party no.3-District Education Officer, Jajpur under Annexure-12, in pursuance of the order dated 11.02.2022 passed by this Court in W.P.(C) // 2 // No. 3696 of 2022, suggesting for recovery of an amount of Rs.3,24,518/- for the period from 01.04.1991 to 28.02.2019 from the DCRG of the petitioner. 2. The factual matrix of the case, in brief, is that the petitioner entered into service as Assistant Teacher on 01.10.1980 on ad hoc basis against Class-VIII(B) Additional Section in the scale of pay of Rs.370-630/- vide letter dated 27.07.1980 of the Secretary, Managing Committee, Baisi Mouza, Dhananjaya High School, Arakhapur in undivided Cuttack district. Her appointment was duly approved by the Inspector of Schools, Jajpur w.e.f. 01.03.1981 vide order dated 23.10.1982 and, as such, her service was also validated in pursuance of G.O. No.55417 dated 30.12.1989 read with order dated 05.10.1990 of the Inspector of Schools, Jajpur, as her appointment was made between 02.02.1970 and 31.12.1984 as per Orissa Education Validation Act, 1989. During her continuance, she passed B.Ed. in the year 1983 and M.A. in 1987. Basing upon her trained qualification, she was allowed trained // 3 // graduate scale of pay, i.e., Rs.410-840/- w.e.f. 10.12.1983 (the date of declaration of her B.Ed. result) and in pursuance of G.O. No.375368 dated 11.08.1991 communicated vide letter dated 05.09.1991 of the Director, Secondary Education, Odisha. Her pay was fixed at Rs.425/- on 10.12.1983 with date of next increment fallen on 01.12.1984 vide order dated 23.02.1993 on the then Inspector of Schools, Jajpur, which was also placed in the service book of the petitioner. 2.1 After introduction of Orissa Revised Scale of Pay Rules, 1998, the petitioner furnished her option to come over to the revised scale w.e.f. 01.01.1996 to retain the existing scale of pay to 01.01.1996. Accordingly, her pay was fixed in the revised scale of pay of Rs.5000-8000/- w.e.f. 01.01.1996. Thereafter, the petitioner furnished her further option to come over to revised scale of pay as per Orissa Revised Scale of Pay Rules, 2008 w.e.f. 01.01.2006 and such option having been accepted, her pay was fixed at Rs.13,480/- // 4 // with G.P. of Rs.4200/- vide memo dated 26.02.2009 by the Inspector of Schools, Jajpur. Subsequently, as per Finance Department Notification dated 24.12.2008 and as per resolution of the Screening Committee dated 15.03.2010, the petitioner was allowed to draw ACP at Rs.15,720/- and Rs.4200/- as grade pay w.e.f. 10.12.2008, as she had completed 25 years of service enjoying one scale of pay. The ACP was allowed to her in the revised scale of pay of Rs.9,300-34,800/- with G.P. of Rs. 4200/-. Thereafter, the petitioner was promoted and posted in Manatira High School, Danagadi in the rank of Senior SES (Head Master), as per letter dated 21.06.2014 of the Director, Secondary Education, Odisha. Consequentially, she was allowed to draw RACP, as per RACP Rules, 2008 with effect from the date of completion of 10 years, 20 years and 30 years of service w.e.f. 10.12.1993, 10.12.2003 and 10.12.2013 respectively. 2.2 Thereafter, on attaining the age of superannuation, the petitioner was retired from service // 5 // on 28.02.2019. After retirement, even though the petitioner pursued the matter before the authority for grant of pension and other retiral benefits but the same was not paid to her and, as such, she was only provided provisional pension. Therefore, the petitioner approached this Court by filing W.P.(C) No. 3696 of 2022 praying for final pension with other retiral benefits, which was disposed of vide order dated 11.02.2022, directing opposite party no.2 to comply the requirement made in memo dated 04.10.2021 issued by Asst. Controller of Accounts with a further direction to the opposite party no.2 to calculate and disburse the pensionary and retiral benefits within a period of six weeks. Since the order was not complied with, she filed CONTC No. 3859 of 2022 and vide order dated 23.06.2022 this Court directed the opposite parties to file compliance report by 23.07.2022. But, while the matter stood thus, instead of complying direction given by this Court on 11.02.2022 in W.P.(C) No. 3696 of 2022, opposite party no.3 issued direction to opposite party no.2-Director Secondary Education, Odisha for // 6 // recovery of Rs.3,24,518/- for the period from 01.04.1991 to 28.02.2019, vide order dated 13.06.2022 under Annexure-12, i.e., four years after the retirement of the petitioner on a plea that the pay fixation statements under ORSP Rules 1985 and 1989 of the petitioner are not available in the office. Hence, this writ petition. 3.
Legal Reasoning
Mr. A. Tripathy, learned counsel for the petitioner contended that order of recovery has been made by the authority four years after the retirement of the petitioner and, as such, the petitioner is not liable to pay such amount. It is contended that the decision taken by the authority to recover the amount from the DCRG of the petitioner is absolutely non-application of mind. Thus, he seeks for quashing of the order dated 13.06.2022, as at Annexure-12. It is contended that this question has already been decided by the apex Court in the cases of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334; and Thomas Daniel v. State of Kerala, Civil Appeal No. 7115 of 2010 disposed of on // 7 // 02.05.2022. It is further contended that relying upon the above noted judgments of the apex Court, this Court, by judgment dated 04.05.2022 passed in W.P.(C) No. 12490 of 2014 (Pritilata Mohapatra v. State of Odisha and others), has already held that no recovery can be made from the petitioner therein. 4. Mr. S. Jena, learned Standing Counsel appearing for the School and Mass Education Department contended that since the pay fixation statement under ORSP Rules, 1985 and 1989 are not available in the office, fresh pay fixation statement under ORSP Rules, 1985 and 1989 duly signed by the District Education Officer has been pasted in the service book of the petitioner. As such, on that basis determination has been made for recovery of such amount. Thereby, no illegality or irregularity has been committed by the authority. It is further contended that the District Education Officer, Jajpur has only suggested for recovery of the amount, which has been placed before the Director for consideration and, as // 8 // such, without any effective order being passed by the Director, the order impugned may not be executed and, as such, the writ petition filed by the petitioner is premature one. Consequentially, he seeks for dismissal
Decision
of the writ petition. 5. This Court heard Mr. A. Tripathy, learned counsel for the petitioner; and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department appearing for the opposite parties by hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. 6. In the above factual backdrop, to which there is no dispute, the only question to be decided by this Court is, whether the financial benefit extended to the petitioner is recoverable after her retirement or not. 7. Due to non-availability of documents in the office, the petitioner should not have been penalized. Thereby, no determination should have been made for // 9 // realization of dues from the petitioner. The so called determination made by the District Education Officer, Jajpur, which has been communicated to the Director, Secondary Education, Odisha, vide order impugned dated 13.06.2022 under Annexure-12, for recovery of Rs.3,24,518/- from the petitioner after her retirement, has no justification, particularly when the documents were not admittedly available in the office itself. 8. In the case of Rafiq Masih (supra), on which reliance has been placed by the learned counsel for the petitioner, the apex Court has laid down certain principles in paragraph-12 of the judgment, which are extracted hereunder: “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 as it may, based on the decisions referred to herein above, we may, as a ready reference, summaries the following few situations, wherein recoveries by the employees, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class – IV service (or Group ‘C’ and Group ‘D’ service). // 10 // (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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.” If the above quoted principles are taken into consideration, then the case of the petitioner is fully covered by the same. Meaning thereby, in the meantime the petitioner has already retired from service and, as such, the amount paid to her in excess cannot be recovered from her as the same is impermissible under law. 9. But in a recent judgment rendered in Thomas Daniel (supra), on which reliance has been // 11 // placed by the learned Standing Counsel for School and Mass Education Department, the apex Court in paragraph-9 held as under:- interpretation of rule/order which “(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/ allowance or on the basis of a particular is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” If the ratio decided in Thomas Daniel (supra) is taken into consideration, there is no dispute that the principles laid down by the apex Court in the case of Rafiq Masih (supra) are to be adhered to. But there is a rider provided in Thomas Daniel (supra), that if it is proved that an employee had knowledge that the payment received was in excess of what was due or // 12 // wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess. 10. If the aforesaid ratio is applied to the present case, admittedly the benefit was extended to the petitioner from 01.12.1981 in terms of the resolution issued by the Finance Department and, as such, her pay was fixed and the benefit was extended to the petitioner from that date. It is not that either employer or the employee had no knowledge about such excess payment. If the employee is entitled to get certain benefit and the same was extended to her, the employer cannot absolve its liability or obligation not to pay the amount. Thereby, the demand for recovery of the amount from the petitioner, which was paid by the employer to the petitioner with the knowledge that the same was admissible to her, that too more than 20 // 13 // years after pointing out that the same was extended wrongly, is not permissible, particularly when the petitioner has already retired from service. Therefore, the apex Court in Thomas Daniel (supra) consciously held that if the payment received was in excess of what was due or wrongly paid or in cases where error is detected or corrected within a short time of wrong payment, such payment is only recoverable. But in the present case, since the excess payment made was detected after more than 20 years, the ratio decided in Thomas Daniel (supra) may not have any application. It is of relevance to mention, in paragraph-13 of the judgment in Thomas Daniel (supra), the principles laid down in the case of Rafiq Masih (supra) have also been taken note of. 11. In the above view of the matter, this Court is of the considered opinion that excess amount sought to be recovered was not paid to the petitioner on account of any misrepresentation or fraud played on the part of the petitioner, but the same was paid as due and // 14 // admissible to her and, as such, the same was with the knowledge of both the employer and the employee. Therefore, the direction given by the authority to recover the excess amount paid to the petitioner, vide Annexure-12 dated 13.06.2022, cannot sustain in the eye of law, and the same is liable to be quashed and is hereby quashed. The opposite parties are directed not to recover the excess amount paid to the petitioner in terms of the judgments of the apex Court in the cases of Rafiq Masih and Thomas Daniel (supra). 12. In the result, the writ petition stands allowed. However, there shall be no order as to costs. JUDGE …………….………….. DR. B.R. SARANGI, Orissa High Court, Cuttack The 16th January, 2023, Ashok/GDS