Gourahari Sau vs State Of Odisha And Others
2021 Latest Caselaw 12832 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
           W.P.(C) No.32328, 15284, 15285, 15286, 27592,
                 28006, 28007 and 32343 of 2011



 W.P.(C) No.32328 of 2011
 Gourahari Sau
                                           ...            Petitioner
 W.P.(C) No.15284 of 2011
 Ramesh Chandra Rath
                                           ...            Petitioner
 W.P.(C) No.15285 of 2011
 Minakhi Devi
                                           ...            Petitioner
 W.P.(C) No.15286 of 2011
 Baikuntha N. Gochhi
                                           ...            Petitioner
 W.P.(C) No.27592 of 2011
 Prasanna Kumar Mohapatra
                                           ...            Petitioner
 W.P.(C) No.28006 of 2011
 Gandharba Barik
                                           ...            Petitioner
 W.P.(C) No.28007 of 2011
 Bhubanananda Biswal
                                           ...            Petitioner
 W.P.(C) No.32343 of 2011
 Sudam Sahu
                                           ...            Petitioner
                                -versus-
 State of Odisha and Others                ....     Opposite Parties

Advocates, appeared in these cases:

For Petitioner(s)           :       Mr. Naresh Ch. Sahoo, Advocate
                                         Mr. S.K. Nayak, Advocate

For Opposite Parties        :               Mr. Ananda Prasad Das
                                            Addl. Standing Counsel

                                                         Page 1 of 3
                                                     Mr. B. Panigrahi, Advocate
                                                    Mr. K.P. Nanda, Advocate
                                                       Mr. S.K. Das, Advocate



            CORAM:
            THE CHIEF JUSTICE
            JUSTICE A.K. MOHAPATRA


                                        ORDER

Order No. 14.12.2021

07. 1. The attempts by Bhubaneswar Municipal Corporation (BMC) to recover the alleged excess payment from the Petitioners by the impugned office order persuaded the employees of BMC to approach this Court in the present batch of writ petitions.

2. In the lead petition i.e. W.P.(C) No.32328 of 2011 (Gourahari Sau v. State of Odisha) while issuing notice on 21st December, 2011 this Court stayed the operation of the order dated 15th February, 2011 (Annexure-11). That interim order is continuing for over ten years now. In the meanwhile, all the Petitioners have superannuated.

3. Although the stand of the BMC is that they have resorted to move as a result of the Government of Odisha revoking the approval of the gradation list by letter dated 26th June, 1990 in view of the judgment of the Supreme Court in State of Punjab v. Rafiq Masih (2015) 4 SCC 334, it is not possible for the BMC to legally continue to recover the alleged excess payment from any of the Petitioners in view of their superannuation.

4. Mr. B. Panigrahi, learned counsel for the Opposite Party No.3 (BMC) in W.P.(C) No.32328 of 2011 draws attention of this Court to the subsequent decision in High Court of Punjab and Haryana v. Jagadeb Singh, AIR 2016 SC 3523.

4. The directions in Rafiq Masih (supra) have been further clarified by the Supreme Court by directing that in the event any undertaking has been given by the employee while in service then recovery can still be effective. In the present case, it is nobody's case that any such undertaking given by any of the Petitioners while they were in service. Consequently, the Court sees no reasons why Rafiq Masih should not be applied

5. Consequently, the impugned orders directing recovery of the excess payment from the Petitioners are hereby set aside. The writ petitions are allowed, but in the circumstance, with no order as to costs.

6. An urgent certified copy of this order be issued as per rules.

(Dr. S. Muralidhar) Chief Justice

(A.K. Mohapatra) Judge S.K. Jena/P.A.