The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OA) No. 80 of 2019 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Mihir Kumar Jena …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner :
Legal Reasoning
Mr. N. Rath (Advocate) For Opp. Parties : Mr. B. Mohanty, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 06.08.2024 & Date of Judgment: 06.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. N. Rath, learned counsel appearing for the Petitioner and Mr. B. Mohanty, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging the communication issued on 03.05.2018 under Annexure-6 and further communication issued on 22.11.2018 under Annexure-8. Vide the said communications Petitioner was directed to pay back an amount of // 2 // Rs.59,369/-, which he had received towards special incentive allowance (naxal). 4. Learned counsel appearing for the Petitioner contended that Petitioner since was working as Forest Personnel in Naxallite affected area, vide office order dtd.03.09.2010 under Annexure-3, he was extended with the special incentive allowance @ 15% of the basic pay w.e.f.04.09.2009, Petitioner’s name finds placed at Sl. No. 5 of the order under Annexure-3. 4.1. It is contended that while the matter stood thus and Petitioner was getting the benefit in terms of office order under Annexure-3, basing on some audit objection the impugned communications under Annexur-6 & 8 were issued directing the Petitioner to pay back the allowances received by him to the tune of Rs.59,369/-. 4.2. Learned counsel for the Petitioner contended that in view of the decision of the Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 so followed in the case of Thomas Daniel Vs. State of Kerala & Others reported in 2022 SCC OnLine SC 536, no recovery can be made as the Petitioner was extended with the benefits for a period extending more than 5 years. Hon’ble Apex Court in Para 18 of the Judgment in the case of Rafiq Masih and in Para 13 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: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). Page 2 of 7 // 3 // (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 “13. In State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334, 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 their entitlements without any fault or 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: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of 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 the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. Page 3 of 7 // 4 // 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 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.” 4.3. Not only that placing reliance on a decision of this Court passed in the case of Duryodhan Nayak Vs. State of Odisha & Ors. (W.P.(C) No. 2098 of 2013), Mr. Rath contended that basing on audit objection no recovery can be effected. This Court in Para 7 of the said Judgment has held as follows:- “7. Law is well settled that the findings of the Audit Report, per se, cannot be the basis for recovery of any amount from an employee much less a retired employee. In the case of Manoranjan Khadenga v. Chairman, Orissa Forest Development Page 4 of 7 // 5 // Corporation Ltd., (supra), a co-ordinate bench of this Court, while dealing with a similar case held that withholding the retirement benefits admissible to the Petitioner such as gratuity as well as leave salary without initiating any disciplinary proceeding to determine the liability, only on the basis of the audit report after his retirement is without authority of law. This Court is in respectful agreement with the ratio decided as above. Further, a perusal of the Audit Report does not conclusively reveal that the amount in question was „Government dues‟. In the Finance Department Office Memorandum dated 22nd August, 1991 the expression, „Government dues‟ has been held to include „only arrears of rent and other charges pertaining to occupation of Government accommodation, balance of house building or conveyance advance, overpayment of pay and allowances or leave salary and arrears of Income Tax deductible at source under the Income Tax Act, 1961‟. The Office memorandum further states as under; “As such the amount arising out of Audit report/Para which has not been termed as „Government dues‟ cannot be recovered from D.C.R. Gratuity. Such dues can, however, be realized provided the responsibility is fixed by following the appropriate procedure.” 4.4. It is accordingly contended that the direction to pay back the allowance so indicated in the impugned communications under Annexure-6 & 8 are not sustainable in the eye of law. It is also contended that the Tribunal while issuing notice of the matter vide order dtd.09.01.2019 passed an interim order staying the operation of both the communications. 5. Mr. B. Mohanty, learned Addl. Govt. Advocate on the other hand while supporting the impugned communication made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 1. It is Page 5 of 7 // 6 // contended that even though Petitioner was extended with the benefit of allowances in terms of office order dtd.03.09.2010 under Annexure-3, but since objection was raised by the audit with regard to such extension, impugned communications were issued under Annexure-6 & 8. The stand taken in Para 6 of the counter is reproduced hereunder:- “6. That, in reply to the averments made in Para-6.3, it is humbly submitted that, following the Resolution dt.12.01.2009 issued by Finance Department, the Petitioner applied for availing the benefit which was only accepted on submission of an undertaking. (Copy of the forwarding undertaking and enclosure of the undertaking submitted by the petitioner are annexed herewith as ANNEXURE- C/4 and ANNEXURE-D/4 respectively). That, the entire amount would be refunded in case of his non eligibility after which he was allowed benefit of special incentive allowance @ 15% of the basic pay vide Office Order No.93 dt.03.09.2010. A copy of the Order No.93 dated 03.09.2010 is annexed herewith as ANNEXURE-E/4.” 5.1. Mr. B. Mohanty, learned Addl. Govt. Advocate accordingly contended that since the benefit extended in favour of the Petitioner vide order under Annexure-3 was objected by the audit party, the impugned communications were issued to the Petitioner directing him to pay back the amount. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was extended with the benefit of special incentive allowance (Naxal) vide office order dtd.03.09.2010 under Annexure-3. Petitioner while in receipt of the said benefit, impugned communication dtd.03.05.2018 and 22.11.2018 under Annexure-6 & 8 were issued basing on audit objection and with a direction to pay back an amount of Rs.59,369/-, which Petitioner received towards the said allowance. Page 6 of 7 // 7 // 6.1. Placing reliance on the decision of the Hon’ble Apex Court in the case of Rafiq Masih so followed by Thomas Danial, this Court is of the view that no recovery can be effected after receipt of the said benefit for a period more than 5 years. Similarly, placing reliance on the decision in the case of Duryodhan Nayak, basing on audit objection, no order of recovery can also be made. 6.2 . In view of the aforesaid analysis, this Court is inclined to quash the impugned communications issued on 03.05.2018 under annexure-6 and 22.11.2018 under Annexure-8. While quashing the same, this Court held the Petitioner not liable to pay back any amount, which he has received towards the allowance in question in terms of order dt.03.09.2010 under Annexure-3.
Decision
7. The writ petition is disposed of accordingly. Orissa High Court, Cuttack Dated the 6th of August, 2024/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2024 12:33:30 Page 7 of 7