The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18608 of 2022 Ramesh Chandra Sahu Petitioner Ms. Sanjukta Patra, Advocate on behalf of Mr. Nirmal Ranjan Routray, Advocate …. -versus- State of Odisha and others …. Opposite Parties Mr. Pusparaj Bharadwaj, ASC CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 19.06.2024 Order No. 02. This matter is taken up through Hybrid Mode. 2. Aggrieved by the Order dated 22.03.2012 (Annexure-2) and decision dated 22.06.2022 (Annexure-7) of the Superintending Engineer (Project)-cum-Electrical Inspector (Generation), Circle No.-I, Keonjhar, the petitioner approached this Court to ventilate grievance invoking provisions of Article 226/227 of the Constitution of India, with the following prayer(s): “The petitioner humbly prays that the Hon’ble Court may graciously be pleased to issue notice to the opposite parties, calling upon the (opposite parties) to show cause as to why the Memo dated 22.03.2012 under Annexure-2 and decision dated 22.06.2022 under Annexure-7 shall not be quashed and the amount of Rs.64,918/- recovered shall not be refunded with 12% interest from the date of recovery to till date of actual payment.” Page 1 of 12 3. The petitioner, L.V. Driver under work charged establishment, having joined in April, 1971, was granted the benefit of pay revision in the years 1975, 1986 and 1996. While working as such, he was granted career advancement scale of pay under the Odisha Revised Scales of Pay Rules, 1989 (for short “the ORSP Rules, 1989”) with effect from 04.06.1994. The petitioner got retired from service with effect from 31.10.2007 on attaining the age of superannuation. 3.1. Opposite party no.3-the Superintending Engineer (Projects)- cum-Electrical Inspector (Generation) Circle No.I, Keonjhar issued Office order dated 22.03.2012 allowing the petitioner to draw normal increment under the ORSP Rules, 1989, in the scale of pay of Rs.950-20-1150-EB-25-1500/- with effect from 01.02.1995. However, “the excess amount drawn due to drawl of career advancement scale of pay” has been directed to be recovered and “adjusted in the arrear salary due on revised pay under the ORSP Rules, 2008”. 3.2. It is alleged by the petitioner that though the order was stated to have been passed in the year 2012, the same was never communicated to him. As per recommendation of the Screening Committee held on 25.02.2012, the opposite party no.3 has granted 1st, 2nd and 3rd financial upgradation with effect from 20.04.1987, 20.04.1997 and 20.04.2002 respectively. However, the actual benefit has been given to him with effect from 01.01.2006. Page 2 of 12 3.3. On receipt of the Office Order dated 14.03.2013 enclosed therewith the Order dated 22.03.2012, in order to ventilate his grievance, the petitioner approached opposite party no.3, but to no avail. Therefore, the petitioner approached the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application bearing O.A. No.3939(C) of 2013, which being transferred to this Court after abolition of the said Tribunal and registered as WPC(OAC) No.3939 of 2013, came to be disposed of vide Order dated 15.03.2022 with a direction to opposite party no.3 to dispose of the representation of the petitioner dated 13.05.2013. 3.4. Pursuant to the said direction of this Court, opposite party
Decision
no.3 disposed of the writ petition by communicating in Letter No.10 dated 22.06.2022 that Time Bound Advancement (TBA) arrear amount has been assessed at Rs.73,024/-, out of which Rs.64,918/- has been recovered by adjusting against the arrear salary. 4. Ms. Sanjukta Patra, learned counsel appearing on behalf of Mr. Nirmal Ranjan Routray, learned counsel for the petitioner submitted that the action of opposite party no.3 is reprehensible, in view of propositions laid down in the case of State of Punjab Vrs. Rafiq Masih and others (White Washer), (2015) 4 SCC 334 = AIR 2015 SC 696. She has also made reference to the case of Thomas Daniel Vrs. State of Kerala, (2022) SCC OnLine SC 536. It is submitted that the petitioner is a “Group-C” employee and the excess payment stated to have been made to the petitioner is sought to be recovered by way of an Office Order vide Memo dated Page 3 of 12 22.03.2012. It is contended that the increment, which related to 1995, stated to have been wrongly/erroneously granted by the opposite parties, by then more than eighteen years have been lapsed, has been recovered by way of adjustment. 4.1. It is vehemently urged by learned counsel for the petitioner that in view of clear guidelines issued with regard to recovery of excess payment made to employee belonging to “Group-C” and “Group-D” category by the Hon’ble Supreme Court of India in the cases referred to supra, the amount of Rs.64,918/- ought not to have been recovered and such amount is liable to be refunded to the petitioner with interest @12% per annum till the date of actual refund. 4.2. By referring to the decisions rendered in the cases in Syed Abdul Qadir & others Vs. State of Bihar and others, (2009) 3 SCC 475, State of Rajasthan Vs. Mahesh Kumar Sharma, (2011) 1 SCC (L&S) 673, Omm Prakash Singh Vs. Union of India and others, (2011) SCC (L&S) 343, Yogeswar Prasad & others Vrs. National Institute of Education Planning & Administration & others, (2010) 14 (Addl.) SCR 22 = (2010) 14 SCC 323, Union of India and others Vrs. R. Basudev Murty & others, (2010) 2 SCC (L&S) 711, learned counsel for the petitioner submitted that it is well-settled that, unless there is material to show by the employer that excess payment was made on misrepresentation of the employee or fraud played by him, relief is granted in favour of the petitioner-employee not because he has any right, but because the Court is to exercise its Page 4 of 12 equity jurisdiction so as to avoid hardship to an employee who is not at fault. 4.3. Learned counsel for the petitioner, therefore, urged that the Office Order dated 22.03.2012 (Annexure-2) and Office Order dated 22.06.2022 (Annexure-7) are liable to be quashed and the recovered amount is required to be restored. 5. Mr. Pusparaj Bharadwaj, learned Additional Standing Counsel appearing for the State-opposite parties submitted that in view of enunciation of legal position as settled in the cases of Rafiq Masih and Thomas Daniel (supra), the impugned office orders dated 22.03.2012 and 14.03.2013 are indefensible. 6. Heard counsel for the both sides and considered the submissions. On perusal of record, it transpires that this Court vide Order dated 03.08.2022 issued notice to the opposite parties requesting them to file counter affidavit. However, no counter affidavit has yet been filed. Since this matter is of the year 2022 and the petitioner approached the learned Tribunal by way of filing Original Application which travelled to this Court later, wherein scope to the opposite parties was given to consider the plight of the petitioner. Therefore, this Court does not find it expedient to grant any further indulgence and on being conceded by the learned counsel for the both parties, this matter is taken up for disposal. 7. It is ascertained from the record that the petitioner, in the year 2022, was at the age of 75 years, being retired as L.V. Driver (which is a Group-C post) on 31.10.2007. There is no dispute the Page 5 of 12 amount sought to be recovered is of the year 1995 and an amount of Rs.64,918/- has been adjusted against arrears standing in favour of the petitioner. Much after retirement, it is in the Office Order dated 22.03.2012 at Annexure-2 suggested as follows: “He is allowed to draw his normal increment under ORSP Rules, 1989 in the scale of pay Rs.950-20-1150-EB-25- 1500/- with effect from 01.02.1995. The excess amount drawn due to drawal of career advancement scale off pay will be recovered and adjusted in the arrear salary due on revised pay under the ORSP Rules, 2008.” Further it is revealed from Office Order dated 22.06.2022 that, as per CE(P)-cum-CEI(G), Odisha, “(4) That, Bhubaneswar Memo No.1390, dated 02.08.2011 the TBA benefit is withdrawn by SE(P)-cum-EI(G), Circle No.-I, Keonjhar vide Office Order No.336, dated 22.03.2012 and the benefit amount will be recovered and adjusted in the arrear salary due on revised pay under ORSP Rules, 2008. *** (6) That Sri R.C. Sahu has already received arrear of TBA amount of Rs.73,024.00. But his 6th pay fixation arrear is Rs.64,918.00. Since the higher authority has given instruction to adjust the TBA arrear amount in the arrear salary due on revised pay under ORSP Rules, 2008 the payment of arrear salary of 6th pay fixation 2008 does not arise. On the other hand Sri Ramesh Chandra Sahu has to refund an amount of Rs.8,106.00 to Government. Accordingly the representation dated 13.05.2013 of Sri Ramesh Chandra Sahu, Ex. Work Charged Driver is disposed of.” Page 6 of 12 7.1. It is glaring on the face of such orders of recovery that excess payment is sought to be recovered from a retired employee who was working as driver in work charged establishment. 7.2. On the fact that the excess salary was paid due to irregular/wrong pay fixation by the authority concerned in the case of Chandi Prasad Uniyal Vrs. State of Uttarakhand, (2012) 7 SCR 307 where A question arose whether the employee can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part, as contended. The Hon’ble Supreme Court of India held, “15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy. 16. We are concerned with the excess payment of public money which is often described as ‘tax payers money’ which belongs neither to the officers who have effected over- payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because Page 7 of 12 money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients law. Any amount also without any authority of paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) v. Government of India and Ors., (2006) 11 SCC 709, the excess payment made due to wrong/irregular pay fixation can always be recovered.” 7.3. The present petitioner, being driver in work charged establishment, a lowly paid employee, it is apt to refer to the guidelines issued by the Hon’ble Supreme Court of India in the case of Rafiq Masih (supra), wherein at paragraph 18 the following propositions are made: “*** 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: Page 8 of 12 Recovery from employees belonging to Class- (i) III and Class-IV service (or Group 'C' and Group 'D' service). (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.” 7.4. Having taken note of the principle laid down in Rafiq Masih (supra) as well as Syed Abdul Qadir Vrs. State of Bihar, (2009) 3 SCC 475 in Thomas Daniel (supra) the Hon’ble Supreme Court held that an attempt to recover the increments after passage of ten years of retirement is unjustified. 7.5. A division Bench of this Court vide Order dated 24.06.2021 disposed of the batch of writ petition bearing W.P.(C) No.21772 of 2019 and batch (State of Odisha Vrs. Ashokarani Mishra). Referring to the case of Rafiq Masih (supra) this Court held that the opposite parties are in “Group-C” position and therefore, the said Page 9 of 12 decision of the Hon’ble Supreme Court would apply and no recovery of excess payment can be made. 7.6. In Yogeswar Prasad and others Vrs. National Institute of Education Planning and Administration and others, (2010) 14 (Addl.) SCR 22 = (2010) 14 SCC 323, it has been laid down that there was no fault of employees to whom there was grant of higher pay scale and mistake, if any, committed by any employer in making payment in excess of what was due to the employee “could not be recovered unless it was a case of misrepresentation or fraud”. In the present case, there is nothing on record to suggest that the case turned on the misrepresentation by the petitioner nor is it the case of opposite parties that fraud has been played by the petitioner. 7.7. In a case where excess amount paid was sought to be recovered from leave encashment benefit, this Court in the case of Union of India and others Vrs. Md. Ahmed Baig 2024 SCC OnLine Ori 990, having regard to the case of Rafiq Masih (supra) referred to above, held that “the petitioners-authorities erred in deducting the excess payment made to the opposite party from the leave encashment benefits and thus, the action of the authorities cannot be countenanced and the same is invalidated”. To arrive at such conclusion, this Court quoted the following from Rafiq Masih (supra) that “in view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may Page 10 of 12 not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee”. 7.8. On the aforesaid narrated factual scenario and applying the ratio of decisions referred to hereinabove, this Court is of the considered view that the recovery as made by opposite party no.3- the Superintending Engineer (Projects)-cum-Electrical Inspector (Generation) Circle No.I, Keonjhar pursuant to Office Orders dated 22.03.2012 (Annexure-2) and 22.06.2022 (Annexure-7) cannot withstand judicial scrutiny. Hence, the said Orders are liable to be quashed, which this Court does. 8. This lands this Court now to consider whether the petitioner is entitled to get interest on the amounts recovered pursuant to aforesaid Office Orders of the opposite party no.3. Since this Court has quashed the said Office Orders, thereby the opposite parties have unauthorisedly deducted/recovered the amount allegedly paid in excess to the petitioner. Therefore, this Court is of the opinion that the petitioner is entitled to refund of the recovered amount along with interest @9% per annum on the amount of Rs.64,918/- from the date of deductions. Page 11 of 12 8.1. In this regard, this Court in the case of Md. Ahmed Baig (supra) referred to the case of Vijay L. Mehrotra Vrs. State of U.P., (2001) 9 SCC 687. In the case of Vijay L. Mehrotra (supra) it has been observed as follows: if “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 the for some unforeseen circumstances payments could not be made on the date of retirement. In this case, there is absolutely no reason or 4. 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.” After quoting said paragraph, this Court in Md. Ahmed Baig (supra) directed for payment of interest @9% per annum. 9. Under the aforesaid premises, it is directed that the opposite parties particularly opposite party no.3 shall refund the amount of Rs.64,918/- recovered from the petitioner within a period of eight weeks from the receipt of the certified copy of this order along with interest @9% per annum from the date of recovery till the actual refund thereof. With the aforesaid observation and direction, the writ petition stands disposed of. Signature Not Verified Digitally Signed Laxmikant Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Jun-2024 18:15:16 (M.S. Raman) Judge Page 12 of 12