The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 42804 of 2023 & W.P.(C) No. 18495 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Sarat Chandra Sahoo …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner :
Legal Reasoning
Mr. G.K. Nanda (Advocate) For Opp. Parties : Mr. B. Mohanty, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 20.08.2024 & Date of Judgment: 20.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. Since the issue relates to sanction and release of final pension and gratuity in favour of the
Decision
Petitioner, both the matters were heard analogously and disposed of by the present common order. // 2 // 2. Heard Mr. G.K. Nanda, learned counsel appearing for the Petitioner and Mr. B. Mohanty, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed both the writ petitions inter alia with the following prayer:- W.P.(C) No. 18495 of 2022 “It is, therefore, most humbly prayed that this Hon'ble Court may be graciously pleased to admit this writ petition, issue rule NISI by calling upon the opposite parties to show cause as to why the notice dated.3.2.2022 under Annexure-11 for deposit of Rs.6.83.347/- shall not be quashed and upon failing to show cause or showing insufficient cause, the said rule be made absolute by quashing the notice dt.3.2.2022 under Annexure-11: And further be pleased to issue appropriate writ to the opposite parties to release pension with arrear immediately (stopped from 2020) in favour of the petitioner for his survival: And pass any other appropriate Writ(s), direction(s), order(s), as would be deemed fit and proper in the circumstances of the case: And for the said act of kindness, the petitioner as in duty bound shall ever pray.” W.P.(C) No. 42804 of 2023 “It is, therefore, most humbly prayed that this Hon'ble Court may be graciously pleased to admit this writ petition, issue rule NISI by calling upon the opposite parties to show cause as to why the period of service from 25.06.1984 to 24.08.1997 shall not be counted towards qualifying service for pensionary benefits in favour of the petitioner and accordingly the pension of the petitioner shall not be refixed and the order of reducing the pension under Annexure-8 and recovery from GPF under Annexure-9 shall not be quashed and upon failing to show cause or showing insufficient cause, said rule be made absolute and a writ in the nature of mandamus be issued to the opposite parties to refix the pension of the petitioner by counting the period of Page 2 of 8 // 3 // service from 25.06.1984 to 24.08.1997 towards qualifying service and accordingly refix the pension and gratuity and pay all the retiral and pensionary benefits within a stipulated time by quashing the order under Annexure-8 & 9; And pass any other appropriate Writ(s), direction(s), order(s), direction/directions as would be deemed fit and proper in the circumstances of the case; And for the said act of kindness, the petitioner as in duty bound, shall ever pray.” 4. At the outset learned counsel appearing for the Petitioner contended that Petitioner does not want to press the prayer for regularization of the period of service from 25.06.1984 to 24.08.1997 for counting of the same as qualifying service and also the fixation of his final pension vide order under Annexure-8 and entitlement of the Petitioner towards gratuity as reflected in the order under Annexure-9. It is also contended that Petitioner is only aggrieved with regard to the recovery of excess amount so paid to him w.e.f.01.04.2010 to October 2020 in the shape of provisional pension as indicated in Annexure-11. 4.1. Learned counsel for the Petitioner contended that even though Petitioner retired from his services on attaining the age of superannuation w.e.f.31.03.2010, but he was not sanctioned with his retiral benefits save and except the provisional pension because of non- regularization of the period of service from 25.06.1984 to 24.08.1997 for the purpose of counting the same as qualifying service. Accordingly, Petitioner was allowed with provisional pension of Rs.7,893/- along with T.I. w.e.f.01.04.2010 vide order dt.15.04.2010 under Annexure-3. But while fixing the final pension at Rs.4,435/- vide order dtd.11.06.2020 under Annexure-8 and the retirement gratuity at Rs.1,10,877/- vide order under Annexure-9, Petitioner was directed to Page 3 of 8 // 4 // pay back a sum of Rs.6,83,347/- vide the impugned notice dtd.03.02.2022 under Annexure-11. Petitioner challenging the notice dt.03.02.2022 filed W.P.(C) No. 18495/2022. Subsequently, seeking re- fixation of his pension and gratuity as made vide order under Annexure-8 and 9, by taking the period 25.06.1984 to 24.08.1997 as qualifying service, Petitioner filed W.P.(C) No. 42804/2023. 4.2. Learned counsel for the Petitioner contended that in terms of the order passed by this Court on 17.07.2023 in W.P.(C) No. 18495/2022, Petitioner is only getting pension of Rs. 2,500/- w.e.f. November, 2020 and no recovery has been made in terms of the notice issued under Annexure-11. 4.3. Learned counsel for the Petitioner contended that since the Petitioner is not pressing the prayer for regularization of the period from 25.06.1984 to 24.08.1997 to count it as qualifying service and he is also not aggrieved by the final pension so fixed vide order dtd.11.06.2020 under Annexure-8 and so also the gratuity amount authorized vide Annexure-9, the writ petition be confined with regard to the recovery of the excess payment drawn by the Petitioner, so issued on 03.02.2022. 4.4. Learned counsel for the Petitioner contended that since Petitioner after his retirement was sanctioned with the provisional pension at Rs.7,893/- + T.I. vide order dt.15.04.2010 under Annexure-3 w.e.f.01.04.2010 and the same continued till fixation of the final pension at Rs. 4,435/- vide order dtd.11.06.2020 under Annexure-8, no recovery can be made as the Petitioner is a retired employee and the payment of the amount in terms of Annexure-3 continued for more than 10 years. Page 4 of 8 // 5 // 4.5. In support of his submission Mr. Nanda, learned counsel for the Petitioner relied on a 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. 4.6. Hon’ble Apex Court in Para 18 of the Judgment in the case of Rafiq Masih and 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). (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 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, Page 5 of 8 // 6 // 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.” 4.7. It is also contended that in terms of the order passed on 17.07.2023 in W.P.(C) No. 18455/2022, Petitioner is only getting pension of Rs. 2,500/- w.e.f. November, 2020 to till date. It is further contended that in terms of the order issued under Annexure-8, Petitioner has also not been paid with the commuted value of pension and he has also not received the gratuity amount in terms of the order issued under Annexure-9. It is accordingly contended that this Court may dispose of the writ petition only by interfering with the order of recovery so indicated in letter dt.03.02.2022. Page 6 of 8 // 7 // 5. Even though a counter affidavit has been filed justifying the recovery of the amount so indicated in Annexure-11, but taking into account on the submission made by the learned counsel for the Petitioner, learned Addl. Govt. Advocate contended that since the Petitioner is not pressing the prayer for regularization of the period from 25.06.1984 to 24.08.1997 to treat it as qualifying service and he is also not challenging the final pension fixed vide order under Annexure-8 and the gratuity amount sanctioned vide order under Annexure-9, this Court so far as question of recovery is concerned, may pass appropriate order as deem fit & proper. 6. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner while continuing in service, he retired on 31.03.2010. After such retirement of the Petitioner, he was allowed with provisional pension at Rs.7,893/- + T.I. w.e.f.01.04.2010 vide order dt.15.04.2010 under Annexure-3. But while fixing the final pension vide office order dtd.11.06.2020 under Annexure-8, the same was fixed at Rs.4,435/- and the gratuity amount of the Petitioner was fixed at Rs.77, 347/- after recovery of an amount of Rs.33,529/-. 6.1. Since the Petitioner is no pressing the prayer with regard to such fixation of final pension and gratuity and also is not pressing for regularization of the period to be taken as qualifying service, this Court placing reliance on the decision in the case of Rafiq Masih so followed in the case of Thomas Danial, is of the view that Petitioner being a retired employee and in receipt of the benefit for more than 10 years, no recovery can be effected for any excess payment paid to the Petitioner Page 7 of 8 // 8 // while allowing provisional pension in his favour for the period from 01.04.2010 to October, 2020. 6.2. Therefore, this Court while interfering with the notice dt.03.02.2022 is inclined to quash the same. While quashing the same, this Court directs Opp. Party No. 5 to release the final pension and gratuity amount as indicated in Annexure-8 & 9 along with commuted value of the pension and the differential pension for the period from November, 2020 to till date in favour of the Petitioner within a period of two (2) months from the date of receipt of this order. 7. Both the writ petitions are accordingly disposed of. Orissa High Court, Cuttack Dated the 20th 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: 23-Aug-2024 16:10:52 Page 8 of 8