Orissa High Court
Sankarsan Sahoo vs State Of Odisha & Others on 4 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33204 of 2020
Sankarsan Sahoo .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Odisha & Others
.... Opposite Parties
Mr. B. Panigrahi, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
Order No. 25.09.2023
11. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel for the Parties.
3. The Petitioner has filed the present Writ Petition
challenging the Office order dtd.19.11.2019, wherein the
claim of the Petitioner that he is not liable for any
recovery in respect of the grant in aid received for the
period from 01.03.1991 to 31.05.1994 was rejected.
4. Learned counsel for the Petitioner contended that
the Petitioner while continuing as a Peon, he was
extended with the benefit of grant-in-aid for the period
from 01.03.1991 to 31.05.1994 in terms of the letter
issued by the Opposite Party No.2 on 19.02.2011 under
Annexure-5 and consequential payment made to him vide
office order dtd.31.07.2012 under Annexure-7.
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4.1. It is contended that after extending the benefit in
favour of the Petitioner vide Annexure-7, basing on the
letter issued by Opposite Party No.2 on 13.06.2017 under
Annexure-9 and by the Government-Opposite Party No.1
on 07.07.2012 under Annexure-8, when Opposite Party
No.3 took a decision to recover the benefit so extended in
favour of the Petitioner vide Annexure-7 vide office order
dtd.25.01.2018 under Annexure-10, the matter was
challenged before this Court in W.P.(C) No.8459/2018.
This Court vide order dtd.17.05.2019 while disposing the
matter directed the Opposite Parties to consider the case
of the Petitioner so far as the recovery part is concerned
in the light of the judgment passed by the Hon'ble Apex
Court in the case of Rafiq Masih and the judgment
passed by this Court in number of cases.
4.2. It is contended by Mr. Mishra that without proper
appreciation of the order passed by this Court and the
guideline framed in the case of Rafiq Masih by the
Hon'ble Apex Court, the prayer of the Petitioner that he is
not liable for any recovery has been rejected vide the
impugned order dtd.19.11.2019 under Annexure-17.
4.3. It is contended that guideline framed by the Hon'ble
Apex Court in the case of Rafiq Masih is squarely
applicable to the case of the present petitioner and as per
the said guideline no recovery can be effected from the
petitioner in respect of the benefit extended to him for the
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period from 01.03.1991 to 31.05.1999 as he is a Group-D
employee. It is accordingly contended that the impugned
order is not sustainable in the eye of law.
5. Mr. Panigrahi, learned Addl. Standing Counsel for
the State made his submission basing on the stand taken
in the counter so filed by Opposite Party No.4. It is
contended that Opposite Party No.4 after proper
appreciation of the claim of the Petitioner in the light of
the order passed by this Court in W.P.(C) No.8459 of
2018, came to a finding that the decision rendered by the
Hon'ble Apex Court in the case of Rafiq Masih vs. State
of Punjab and the decision of this Court as reflected in
the said order are not applicable to the claim of the
Petitioner.
5.1. It is contended that in view of the letter issued by
the Government on 07.07.2012 under Annexure-8 and
subsequent letter issued by the Director on 13.06.2017
under Annexure-9, the Petitioner is not eligible to get the
benefit as extended vide order at Annexure-7 and
accordingly contended that no illegality is there in the
impugned order.
6. Having heard learned counsel for the Parties and
after going through the materials available on record, it is
found that the Petitioner was extended with the benefit of
grant-in-aid for the period from 01.03.1991 to 31.03.1994
vide order dtd.31.07.2012 under Annexure-7 in terms of
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the letter issued by the Director on 19.02.2011 under
Annexure-5. The Petitioner for the first time was issued
with the order for recovery of the amount in question on
06.12.2018 under Annexure-11.
6.1. Since the Petitioner has already got the benefit vide
order dtd.31.07.2012 under Annexure-7, this Court
taking into account the guideline framed by the Hon'ble
Apex Court in the case of Rafiq Masih is of the opinion
that no recovery can be affected from the petitioner in
respect of the benefit extended in his favour for the period
from 01.03.1991 to 31.03.1994. Hon'ble Apex Court in the
case of Rafiq Masih in Para-12 of the judgment has 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
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, 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
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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."
6.2. In view of such position, this Court finds that the
Petitioner is not liable for any recovery of the amount in
question. While holding so, this Court is inclined to
quash the office order dtd.19.11.2019 so passed by the
Opposite Party No.4 under Annexure-17. While quashing
the same, this Court allows the Writ Petition. If in the
meantime any recovery has been effected, the same shall
be refunded to the petitioner within a period of one month
from the date of receipt of this order.
7. With the aforesaid observations and directions, the
Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Subrat
Signature Not Verified
Digitally Signed
Signed by: SUBRAT KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
