The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.1812 of 2015 Santosh Banchhur …. Petitioner Mr. A.K. Biswal, Advocate -versus- State of Odisha and Others …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.07.2023 Order No. 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. A.K. Biswal, learned counsel for the petitioners and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for the State. 3. The present Writ Petition has been filed challenging the office order dated 03.02.2015 so passed by the Opposite Party No.3 under Annexure-6. It is the main contention of the learned counsel for the Petitioners that the deceased petitioner while continuing as Deputy Conservator of Forest, he was allowed the benefit of Naxalite Allowance in terms of the Resolution dated 12.01.2009 under Annexure-3. It is contended that while in receipt of such benefit, pursuant to the subsequent clarification issued by the Government on 07.02.2012, the deceased petitioner was not allowed the benefit of // 2 // Naxalite Allowance any further. However, while the matter stood thus vide impugned order dated 03.02.2015 under Annexure-6, the deceased petitioner was directed to pay a sum of Rs.1,52,269/- i.e. the amount received by the deceased petitioner towards Naxalite Allowance. The present matter was filed by the deceased petitioner challenging the order at Annexure-6. It is contended that the Tribunal while issuing notice of the matter vide order dated 01.06.2015 stayed the operation of the order of recovery so far as it relates to the petitioner. 3.1. Mr. Biswal, learned counsel for the petitioner contended that since the deceased petitioner was suo- motu extended the benefit of Naxalite Allowance in terms of the Resolution issued by the Government on 12.01.2009 and the same was also stopped pursuant to the clarification issued by the Government on 07.02.2012, the deceased petitioner was not liable to pay back the amount, as indicated in the impugned order dated 03.02.2015 under Annexure-6. 3.2. In support of his aforesaid submission, learned counsel for the petitioners relied on the decision of the Hon’ble Apex Court in the case of State of Punjab Vrs. Rafiq Masih. Hon’ble Apex Court in the said decision in Para-12 is held as follows:- <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 Page 2 of 6 // 3 // herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:- Recovery (i) to Class-III and Class-IV service (or Group-8C9 and Group- 8D9 service). from employees belonging Recovery (ii) retired employees, or employees who are due to retire within one year, of the order of recovery. from (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 employer9s right to recover.= 3.3. Learned counsel for the Petitioner also relied on the another decision of the Hon’ble Apex Court reported in 2022 SCC OnLine SC 536. Hon’ble Apex Court in Para- 13 of the said decision following Rafiq Masih has held as follows:- their entitlements without <13. In State of Punjab v. Rafiq Masih (White Washer) wherein this Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of of misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: fault any <8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of Page 3 of 6 // 4 // the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of effect the recovery. In such a situation, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee9s right would outbalance, and therefore eclipse, the right of the employer to recover. 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. 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:- (i) (ii) (iii) (iv) (v) Recovery from employees belonging to Class-III and Class-IV service (or Group-8C9 and Group-8D9 service). Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. 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. in cases where an employee has Recovery 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. In any other case, where the Court arrives at the if made from conclusion, the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer9s right to recover.= that recovery 3.4. It is accordingly contended that in view of the decisions of the Hon’ble Apex in the case of Rafiq Masih so followed in the case of Thomas Daniel, the impugned Page 4 of 6 // 5 // order so far as it relates to the deceased petitioner is not sustainable in the eye of law. 4. Mr. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though the deceased petitioner was extended the benefit of Naxalite Allowance, but when it was found that it has been wrongly extended, the order at Annexure-6 was issued directing to pay a sum of Rs.1,52,269/-. It is further contended that since benefit was wrongly extended, the authority is competent to direct for such recovery and no illegality is there in the order at Annexure-6. 5. Having heard learned counsel for the parties and taking into account the materials available on record, it is found that the deceased petitioner while continuing as a Deputy Conservator of Forest, he was allowed the benefit of Naxalite Allowance in terms of the Resolution issued by the Government on 12.01.2009. As further found from the records, the said benefit was stopped in terms of the communication issued by the self-same government on 07.02.2012. After withdrawing the benefit of Naxalite Allowance in terms of the communication issued on 07.02.2012, the impugned order was issued on 03.02.2015 under Annexure-6 directing for recovery of the amount, which was received by the deceased Petitioner towards Naxalite Allowance. It is the view of Page 5 of 6 // 6 // this Court that since the deceased petitioner had no role with regard to extension of the benefit of Naxalite Allowance, in view of the decisions as cited supra, no order of recovery can be effected after extending the benefit in favour of the deceased petitioner. Therefore, this Court is inclined to quash the order of recovery, so indicated in the impugned order dated 03.02.2015 so far as it relates to the deceased petitioner. While quashing
Decision
the same, this Court allow the Writ Petition. 6. The Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 24-Jul-2023 11:48:50 Page 6 of 6