The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.18274 of 2024 ..... Rajendra Prasad Pratihari Petitioner Mr. D.P. Dash, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. S. Rath, ASC THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 06.08.2024 Order No. 01 1. This matter is taken up through hybrid mode. 2. Heard Mr. D.P. Dash, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the State. 3. Petitioner has filed the present Writ Petition inter alia challenging the communication issued from the office of Opp. Party No. 1 on 11.03.2024 under Annexure-5. Vide the said communication, Opp. Party No. 1 has requested O.P. 4 to withdraw the benefit of MACP so allowed in favour of the petitioner w.e.f. 01.01.2016 vide order issued on 19.09.2019 under Annexure-2 on the ground that petitioner is not eligible to get the benefit in terms of the resolution issued by the Govt. in the Department of Higher Education on 22.12.2017 under Annexure- 6. 4. Learned counsel for the Petitioner contended that petitioner while continuing as Junior Clerk in the College in question, he was extended with the benefit of MACP w.e.f. 01.01.2016 vide office order dated 19.09.2019 as reflected in Annexure-2. It is contended that while in receipt of the benefit, petitioner retired from his services on attaining the age of superannuation on Page 1 of 5. 31.10.2018. But after his retirement when his pension papers were submitted, O.P. No. 2 while issuing Annexure-5, has raised objection with regard to entitlement of the petitioner to get the benefit of MACP w.e.f. 01.01.2016 and with a direction to withdraw the benefit and recovery of the excess amount drawn by the petitioner. 4.1. Learned counsel for the petitioner contended that he has no grievance with regard to the objection raised by O.P. No.1 under Annexure-5 for withdrawal of the benefit of MACP so sanctioned w.e.f. 01.01.2016, save and except the recovery which the petitioner may be asked to make after withdrawal of the benefit so sanctioned vide order under Annexure-2. It is further contended that since without any fault of the petitioner, he got the benefit w.e.f. 01.01.2016 vide order dated 19.09.2019 and in the meantime he has already retired from his services on attaining the age of superannuation on 31.10.2018, no recovery can be made 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:- “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: Page 2 of 5. (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. 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 duteis of a higher post, and Page 3 of 5. 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.” 4.2. It is contended that while interfering with the recovery to be made from the petitioner in terms of Annexure-5, the Writ Petition may be disposed of by directing O.P. No.4 to re-submit the pension papers with compliance of the objection so raised by O.P. No. 1. 5. Even though notice of the Writ Petition has not been issued but learned Addl. Govt. Advocate fairly contended that since petitioner has got the benefit w.e.f. 01.01.2016, if this Court will only interfere with the recovery part, State has got no grievance. 6. Having heard learned counsel for the parties and considering the submissions made and placing reliance on the decision of the Hon’ble Apex Court in the case of Rafiq Masih and Thomas Daniel as cited (supra), this Court is of the view that petitioner while in service was extended with the benefit of MACP w.e.f. 01.01.2016 vide order dated 19.09.2019 under Annexure-2. While in receipt of the said benefit, petitioner also retired from his service on attaining the age of superannuation on 31.10.2018. Since petitioner has got the benefit without any fault of his own and that too the said benefit has been released for a period more than 5 (five) years and petitioner is a retired employee, this Court in view of the decisions in the case of Rafiq Masih and Thomas Daniel as cited (supra), is inclined to observe that no recovery can be made from the petitioner while complying the objection so raised by O.P. No.1 vide the impugned communication dated Page 4 of 5. 11.03.2024 under Annexure-5. While observing so, this Court directs O.P. No.1 to comply the objection so raised in Annexure-5 and re-submit the pension papers, within a period of 6 (six) weeks from the date of receipt of this order. However, it is made clear that no recovery can be effected from the petitioner in respect of benefit he has already got in terms of the order under Annexure-5. 7. The Writ Petition is accordingly disposed of with the aforesaid observation and direction. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Aug-2024 19:20:32 Page 5 of 5.