The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.572 of 2015 A. Lakshmi Prasad …. Petitioner Mr. M.K. Mohapatra, Adv. -versus- State of Odisha & Others …. Opposite Parties Mr. M.K. Balabantaray, AGA Mr. S.K. Patra, Adv. for O.P.2 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.09.2023 Order No 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel for the Parties. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- <In view of the facts mentioned in para-6 of the Original Application, the applicant prayed that, this Hon’ble Tribunal may declare the office order vides Memo No.431-G, dated 22.1.2014 of Respondent No.2 under annexure-6 and subsequent order vide letter No.132, dated 13.2.2015 of the Respondent No.4 under annexure-8 as illegal and quash the same=. 4. It is contended that the Petitioner while continuing in service, he was made to retire at the age of 60 years in terms of the provisions contained under Rule-71(A) of the Orissa Service Code vide order dtd.25.10.2002 under Annexure-2. The Petitioner when challenged the said order before the Tribunal in O.A No.135/2003, the Tribunal vide its order // 2 // dtd.24.06.2008 was pleased to quash the order dtd.25.06.2002 and directed for payment of the salary for the period, Petitioner was kept out of employment i.e. 31.10.2002 to 31.08.2006.
Legal Reasoning
4.1. It is contended that order passed by the Tribunal was challenged before this Court in W.P.(C) No.18081/2008. Though, this Court initially stayed the operation of the order passed by the Tribunal but
Decision
disposed of the writ petition vide order dtd.13.12.2018 by upholding the order passed by the Tribunal. But while upholding the order, this Court held that the Petitioner is not eligible and entitled to get the benefit of salary from 31.10.2002 to 31.08.2006 and the said period will only be calculated on notional basis. 4.2. It is contended that after such order passed by this Court on 13.12.2018, the Petitioner was sanctioned with the pension and other pensionary benefits. But subsequently when the Petitioner was directed for recovery of an amount of Rs.186522/- vide order issued under Annexures-6 & 8, the present writ petition was filed. The Tribunal while issuing notice of the matter vide order dtd.10.07.2015, passed an interim order restraining the Opposite Parties from making any recovery. 5. In the counter affidavit filed by the State, a stand was taken that the recovery which was under challenge in terms of the order issued under Annexures-6 and 8, was modified and it was found that the Petitioner has been paid in excess a sum of Rs. 65,957/-. It is also Page 2 of 5 // 3 // indicated that out of the excess payment so determined at Rs.65,957/- a sum of Rs.47,291/- has already been recovered by the time the Tribunal passed the interim order. It is accordingly contended that the Petitioner is liable to pay the balance amount of Rs.18,666/-. 6. Mr. Patra, learned counsel appearing for Opposite Party No.2 also take a similar stand that the recovery indicated in Annexures-6 and 8 was modified and the Petitioner was found to have been paid in excess a sum of Rs.65,957/-. Out of said amount a sum of Rs.47,291/- has already been recovered, leaving a recovery of Rs.18,666/- from the Petitioner. 7. To the aforesaid stand of the learned counsel appearing for the Opposite Parties, Mr. Mohapatra, contended that since the Petitioner is a retired employee, in view of the decision of the Hon’ble Apex Court in the case of Rafiq Masih, Petitioner is not liable to pay any amount and the amount already recovered to the tune of Rs.47,291/- is liable to be refunded to the petitioner. The view expressed by the Hon’ble Apex Court in the case of Rafiq Masih is also followed by this Court in its order dtd.28.01.2016 so passed in W.P.(C) No.2997/2018 and batch. Hon’ble Apex Court in Para-12 of the judgment has held as follows:- “12. It is not possible to postulate all situations of hardship which would govern employees on the recovery, where payments have issue of 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 Page 3 of 5 // 4 // 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, 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 employer’s right to recover." the equitable balance of 8. Having heard learned counsel for the Parties and after going through the materials available on the record, it is found that the Petitioner filed the present writ petition initially challenging the recovery indicated in the impugned order under Annexures-6 & 8. As found from the modified calculation issued by the Office of Accountant General under Annexure-C/3 to the affidavit so filed by Opposite Party No.3, the recovery amount was found at Rs.65,957/-. As further revealed from the said communication dtd.23.06.2023 under Annexure-C/3, a sum of Rs.47,291/- has already recovered by the time the Tribunal passed the interim order and the Petitioner has been held liable to pay a further sum of Rs.18,666/-. However, placing Page 4 of 5 // 5 // reliance on the decision in the case of Rafiq Masih and the decision of this Court as cited (supra), this Court is of the opinion that no recovery can be effected from the Petitioner, as he is a retired employee. In view of such position, this Court while quashing the recovery so indicated in the order dtd.23.06.2023 under Annexure-C/3, held that no further recovery can be made from the Petitioner. This Court further directs Opposite Party No.2 to refund the recovery amount of Rs.47,291/- in favour of the Petitioner within a period of three (3) months from the date of receipt of this order. 9. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Oct-2023 17:00:09 Page 5 of 5