The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.1429 of 2018 Chandramani Behera …. -versus- Petitioner Mr. M.K. Pati, Advocate State of Odisha & Others …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.
Decision
ORDER 02.09.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Pursuant to the order passed by this Court on 11.07.2024 and 14.08.2024, learned Addl. Standing Counsel produced copy of the letter dtd.06.05.2014 so enclosed to letter dtd.23.08.2024 of the D.E.O., Balangir. The same be kept in record. 3. Heard learned counsel appearing for the Parties. 4. Petitioner has filed the present Writ Petition inter alia challenging the office order dtd.10.10.2017 so issued by Opposite Party No.3 under Annexure-4 and consequential recovery to the tune of Rs.2,53,282/- so reflected under Annexure-5. 4.1. Learned counsel for the Petitioner contended that Petitioner on being found eligible was extended with the // 2 // benefit of Trained Scale of Pay on attaining the age of 48 years i.e. w.e.f. 01.01.2006 vide office order dtd.03.02.2015 under Annexure-3. 4.2. It is contended that while in receipt of the benefit in terms of the order dtd.03.02.2015 so issued under Annxure-3, the impugned office order dtd.10.10.2017 was issued by Opposite Party No.3 under Annexure-4. Vide the said order the benefit of trained scale of pay extended in favour of the Petitioner w.e.f. 01.01.2006 vide office order dtd.03.02.2015 was withdrawn and Petitioner vide Annexure-5 was directed to refund the excess amount drawn to the tune of Rs.2,53,282/-. 4.3. Learned counsel for the Petitioner contended that since Petitioner on being found eligible was extended with the benefit of Trained Scale of Pay w.e.f. 01.01.2006 vide office order dtd.03.02.2015 under Annexure-3, the same could not have been withdrawn vide the impugned order without following the principle of natural justice and without issuing a show cause. 4.4. It is also contended that in terms of the impugned order passed under Annexure-4, Petitioner has been directed to pay back a sum of Rs.2,53,282 under Annexure-5. However, in course of hearing, learned counsel for the Petitioner fairly contended that Petitioner has no grievance with regard to withdrawal of the benefit Page 2 of 6 // 3 // of Trained Scale of Pay so sanctioned in his favour vide office order dtd.03.02.2015 as issued vide the impugned order dtd.10.10.2017 under Annexure-4. But it is contended that since the Petitioner was extended with the benefit suo- moto by Opposite Parties and the Petitioner in the meantime has retired from service on attaining the age of superannuation on 31.12.2017, no recovery can be effected in view of the decision of the Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih, AIR 2015 SC 696 so followed in the case of Thomas Daniel Vs. State of Kerala & Others, 2022 Live Law (SC) 438. 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. xxx xxx xxx “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, employers, would be the wherein impermissible in law: recoveries by (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. Page 3 of 6 // 4 // (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. “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.” 4.5. It is also contended that because of pendency of the writ petition, Petitioner is not getting his retiral dues save and except the provisional pension. Page 4 of 6 // 5 // 5. Mr. S. Rath, learned Addl. Standing Counsel for the State on the other hand considering the submission made by the learned counsel for the Petitioner that Petitioner is not aggrieved by the withdrawal of the benefit of trained scale of pay so sanctioned vide office order dtd.03.02.2015 under Annexure-3, contended that this Court can pass appropriate order so far as recovery is concerned. 6. Having heard learned counsel appearing for the Parties and considering the submission made, this Court considering the fact the Petitioner was extended with the benefit of Trained Scale of Pay w.e.f. 01.01.2006 vide office order dtd.03.02.2015 under Annxue-3 and he got the benefit till the impugned order was issued on 10.10.2017 under Annexure-4. Placing reliance on the decisions as cited (supra) and the fact that Petitioner is a retired employee, it is the view of this Court that no recovery can be effected as indicated in Annexure-5. 6.1. Therefore, this Court is inclined to quash the recovery of the amount of Rs.2,53,282/- so indicated in Annexure-5. While quashing the recovery in question, this Court directs Opposite Party No.3 to sanction and disburse the retiral dues as due and admissible to the Petitioner within a period of three (3) months from the date of receipt of this order. Page 5 of 6 // 6 // 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Sep-2024 18:13:54 Page 6 of 6