Md. Abdun Nabi vs Commnr.-Cum-Secy.
2023 Latest Caselaw 11930 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                             W.P.(C) No.7599 of 2023

        Md. Abdun Nabi                          ....                 Petitioner
                                                        Mr. L. Samal, Advocate
                                          -versus-
        Commnr.-cum-Secy., To
        Govt. of Odisha, Higher  ....                           Opposite Parties
        Education Dept. & Others
                                                          Mr. S.K. Samal, AGA


                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                           ORDER

Order No.                                25.09.2023
      10. 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 communication issued by the Controller of Accounts-Opposite Party No.2 on 01.03.2023 vide Annexure-7.

4. Learned counsel for the Petitioner contended that on revision of his pension in terms of the Finance Department Office Memorandum dtd.23.09.2017, the pension amount of the Petitioner was fixed at Rs. 16,261/- by the Opposite Party No.2 w.e.f. 01.01.2016. But the same was reduced to Rs.2,628/- suo motu and while fixing the pension amount at Rs.2,628/-, Opposite Party No.3 has been directed to take consequential steps // 2 //

for recovery of the amount in question towards excess payment of pension released in favour of the Petitioner w.e.f. 01.01.2016.

4.1. It is contended that since the Petitioner's pension was revised in accordance with Finance Department Office Memorandum dtd. 23.09.2017 at Rs.16,261/- w.e.f 01.01.2016 and the Petitioner has got the said benefit, the Petitioner is not liable to pay any excess amount that was received by him, in view of the decision of the Hon'ble Apex Court in the case of Rafiq Masih. Hon'ble Apex Court 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 a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(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."

4.2. It is also contended that prior to re-fixing the revised pension at Rs.2628/-, the Petitioner was never noticed and it was done suo motu by Opposite Party No.2 It is accordingly contended that the directions issued by the Opposite Party No.2 vide Annexure-7 is not sustainable in the eye of law.

5. Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.2. The stand taken by the Opposite Party No.2 in Paragraph-4 & 6 of the counter are reproduced hereunder:-

<4. That, the petitioner entered into service on 07.11.1959 and retired from service on 31.12.1994 rendering gross period of service 35 years 01 month & 24 days (31.12.1994-07.11.1959). Out of the above period, Govt. period of service is 23 years 09 months and 22 days i.e. from 09.03.1971 to 31.12.1994 & Non- Govt./Aided period of service is 11 years 04 months 02 days i.e. from 07.11.1959 to 08.03.1971. That it is pertinent to mention here that for the Government period of service the authority for pension is to be issued by the A.G., Odisha and the Non- Government period of service the authority for pension is to be issued by the Controller of Accounts.

6. That, it is humbly submitted that the last pay of the petitioner on the date of retirement i.e. on 31.12.1994 was Rs.4700/-. So, as per Rule47(2)9a) of OCS (Pension) Rule, 1992, full pension of Rs.2350/- (50% of last pay i.e.50/100 x 4700 or ½ x 4700) was authorized in favour of the petitioner for payment w.e.f. 01.01.1995. Out of the Rs.2350/-, Rs.1710/- as pension

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was authorized by the O.P NO.4 for the Government period of service & Rs.640/- as pension was authorized for payment w.e.f. 01.01.1995 by the O.P. No.2 for Non-Government/Aided Period of service. As such, the Petitioner has availed Rs.2350/- (Rs.1710/- + Rs.640/-) as full pension w.e.f.01.01.1995=.

5.1. Placing reliance on the stand taken in the aforesaid paragraphs of the counter, Mr. Balabantaray, contended that while revising the pension w.e.f. 01.01.2016 in terms of the Finance Department Office Memorandum dtd.23.09.2017 the revised pension of the Petitioner was wrongly fixed at Rs.16261/-. But taking into account the last pay drawn by the Petitioner at the time of his retirement from service on 31.12.1994, the revised pension was calculated at Rs.2628/-.

It is accordingly contended that no illegality has been committed by Opposite Party No.2 in revising the pension and issuing the letter under Annexure-7.

6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that with regard to the period of service rendered by the petitioner in Non-Government/Aided Colleges for the period from 07.01.1959 to 08.03.1971 his initial pension was fixed at Rs.640/- as reflected under Annexure-9. But while revising the pension w.e.f. 01.01.2016 in terms of the Finance Department Office Memorandum dtd.23.09.2017, the same was fixed at Rs.16,261/- w.e.f. 01.01.2016, and the Petitioner was released with the benefit of such revised pension. If it is

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found that the Petitioner is not eligible to get such revised pension and it should be at Rs.2628/-, then Opposite Party No.2 prior to issuing Annexure-7 should have given an opportunity of hearing to the Petitioner. Since the same has not been followed and Opposite Party No.2 straight away issued the impugned communication under Annexure-7 by reducing the revised pension from Rs.16261/- to Rs.2628/- and with a direction to recover the excess amount, this Court is inclined to quash the communication at Annexure-7. While quashing the same, this Court remits the matter to Opposite Party No.2 to take a fresh decision by giving due opportunity of hearing to the petitioner. Such a fresh decision shall be taken within a period of one(1) month from the date of receipt of this order. If on such reconsideration, if it is found that the Petitioner is in fact entitled to get revised pension at Rs.2628/- then with regard to the recovery of the excess amount so released in favour of the petitioner, a decision be taken by the Opposite Party No.2 in terms of the decision of the Hon'ble Apex Court in the case of Rafiq Masih as cited (supra).

8. With the aforesaid observations and directions, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Signature Not Verified Judge Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Subrat Location: High Court of Orissa, Cuttack