(An application under Articles 226 & 227 of the Constitution of India.) Deepak Kumar v. State of Odisha and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36651 of 2021 (An application under Articles 226 & 227 of the Constitution of India.) Deepak Kumar Das …… Petitioner Versus State of Odisha and others .…... Opposite Parties Advocate(s) appeared in this case :- For Petitioner For Opposite Parties : :
Legal Reasoning
this Court in W.P.(C) No.13391 of 2011, along with two others, praying for grant of revised UGC scale of pay with effect from 1st January 1996 at par with their counterpart lecturers working under the Government. This Court vide judgment dated 17th August 2017 directed to extend such benefits in favour of the Petitioner and two others. Consequently, the Opposite Parties released the benefit in favour of the Petitioner in terms of their order dated 12th June 2020 (Annexure-18). Subsequent thereto, the impugned order of recovery dated 9th November 2021 (Annexure-23) was issued against the Petitioner directing for recovery of Rs.34,08,628/- in such suitable installments mentioned in the order. 4. WALMI has filed its counter stating therein that such direction for recovery of the excess amount paid to the Petitioner was due to finding of the fact that he is not standing equal with their counterpart in Government W.P.(C) No.36651 of 2021 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 service to receive career advancement scale of pay. But it is true that neither the order of recovery nor the counter affidavit filed by WALMI speak the exact reason for disentitlement of the Petitioner of such benefits leading to recovery. 5. Mr.Das, learned Senior Counsel for the Petitioner submits that, first of all, non-communication of reasons of recovery from the Petitioner is the illegality committed on the part of the authorities and so the order of recovery is liable to be set aside and secondly, just few months prior to his retirement, the authorities are debarred from proceeding against the Petitioner for recovery of such amount, which was granted to him with effect from 1st January 1996. In this regard, Mr.Das places his reliance on the decision of the Hon’ble Supreme Court in the case of State of Punjab and others vrs. Rafiq Masih (While Washer) and others, (2015) 4 SCC 334. 6. Mr.Mohapatra, learned counsel for WALMI, on the other hand, submits that since the Petitioner had drawn excess amount without having such requisite qualification to get the benefit of career advancement scale of pay, which was detected while accounting the benefits in favour of the Petitioner pursuant to the direction of this Court passed in W.P.(C) No.13391 of 2011, the order of recovery was issued immediately. W.P.(C) No.36651 of 2021 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 Therefore, the Petitioner cannot have any right to oppose the order of recovery which was drawn without his entitlement or beyond his entitlement. 7. The principles of recovery from salary with regard to amount paid in excess to the employee has been settled in the case of Rafiq Masih (supra). The Hon’ble Supreme Court having discussed the previous decisions in that regard have decided the principle at para 18, 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. 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.” 8. Further, this Court in the case of Pritilata Mohapatra vrs. State of Odisha and others, 2022 (Supp.) OLR-399 taking note of the principles W.P.(C) No.36651 of 2021 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 decided in Rafiq Masih (supra) and Thomas Daniel v. State of Kerala, 2022 SCC OnLine SC 536, have held that, “9. If the ratio decided in Thomas Daniel (supra) is taken into consideration, there is no dispute that the principles laid down by the apex Court in the case of Rafiq Masih (supra) are to be adhered to. But there is a rider provided in Thomas Daniel (supra), that if it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess. 10. If the aforesaid ratio is applied to the present case, admittedly the benefit was extended to the petitioner from 01.12.1981 in terms of the resolution issued by the Finance Department and, as such, her pay was fixed and the benefit was extended to the petitioner from that date. It is not that either employer or the employee had no knowledge about such excess payment. If the employee is entitled to get certain benefit and the same was extended to her, the employer cannot absolve its liability or obligation not to pay the amount. Thereby, the demand for recovery of the amount from the petitioner, which was paid by the employer to the petitioner with the knowledge that the same was admissible to her, that too more than 20 years after pointing out that the same was extended wrongly, is not permissible, particularly when the petitioner has already retired from service. Therefore, the apex Court in Thomas Daniel (supra) consciously held that if the payment received was in excess of what was due or wrongly paid or in cases where error is detected or corrected within a short time of wrong payment, such payment is only recoverable. But in the present case, since the excess payment made was detected after more than 20 years, the ratio decided in Thomas Daniel (supra) may not have any application. It is of relevance to mention, in paragraph-13 of the judgment in Thomas Daniel (supra), the principles laid down in the case of Rafiq Masih (supra) have also been taken note of.” 9. In the case at hand, as seen from the impugned order, it is found that the amount of excess payment in the salary was relating to the period from 11th January 1996 to 31st May 2020. It is also found that the Petitioner has retired from service on 31st May 2022 upon superannuation. Therefore, it W.P.(C) No.36651 of 2021 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 is conceivable from the facts that the recovery of such huge amount prior to one year of retirement of the Petitioner would cause harassment to him and the same is in violation of the principles sated at Clause (iii) of the principles decided in Rafiq Masih (supra). Accordingly, this Court has no hesitation to set aside the order of recovery passed under Annexure-23. 10. In the result, the writ petition is allowed and the impugned order dated 9th November 2021 at Annexure-23 is set aside. Consequential benefits, if any, may be released in favour of the petitioner within two months from the date of receipt of certified copy of this order. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.36651 of 2021 Page 6 of 6
Arguments
Mr.S.S.Das, Sr.Advocate Mr.D.Mohanty, Addl. Government Advocate Mr.D.Mohapatra, Advocate (For O.P.No.2) CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 19th December, 2024 B.P. Routray,J. 1. Challenge in the writ petition is to the impugned order dated 9th November 2021 at Annexure-23. The relevant portions of the said order are reproduced below: “As per the order of Hon’ble High Court of Orissa in OJC No.13391 of 2011 & in pursuance to this Office Letter No.2463 (WE) dt.18.10.2021 an amount of Rs.68,283/- per month for 8 months from the salary from 9/2021 to 4/2022 & Rs.68,284/- for 1 month from the salary of 05/2022 of Sri Deepak Kumar dt.30.09.2021 & Letter No.2525 W.P.(C) No.36651 of 2021 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-Jan-2025 14:06:36 Das, Faculty member of WALMI are to be recovered as Sri Das has been paid excess towards salary for the period from 01.01.1996 to 31.05.2020. Balance recovery other than the above will be made in due course.” 2. Heard Mr.Das, learned Senior Counsel for the Petitioner and Mr.Mohapatra, learned counsel for Opposite Party No.2-WALMI as well as Mr.Mohanty, learned Additional Government Advocate for the State. 3. Prior to filing of present writ petition, the Petitioner had approached