Dr. Sushama Mishra vs State Of Odisha & Ors. .... Opposite ...
2024 Latest Caselaw 13035 Ori

Orissa High Court

Dr. Sushama Mishra vs State Of Odisha & Ors. .... Opposite ... on 12 August, 2024

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No. 1417 of 2022

      In the matter of an application under Articles 226 & 227 of the
  Constitution of India.
                                       ..................

        Dr. Sushama Mishra                             ....                Petitioner

                                                   -versus-

        State of Odisha & Ors.                         ....               Opposite Parties



       For Petitioner         :       Mr. L.K. Mohanty (Advocate)

       For Opp. Parties :             Mr. M.K. Balabantaray,
                                      Addl. Govt. Advocate


PRESENT:

   THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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       Date of Hearing: 12.08.2024 & Date of Judgment: 12.08.2024
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   Biraja Prasanna Satapathy, J.

1. This matter is taken up through hybrid mode.

2. Heard Mr. L.K. Mohanty, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties.

3. Petitioner has filed the present writ petition inter alia challenging the communication dtd.22.06.2021 so issued by the Govt.-Opp. Party No. 1 // 2 //

under Annexure-16. Vide the said communication study leave availed by the Petitioner to acquire Ph.D. degree with consequential benefits received for the period from 03.03.2015 to 02.03.2017 was withdrawn, on the ground that Petitioner since has acquired the PhD degree after her retirement, she is not eligible to get the benefit.

4. Learned counsel for the Petitioner contended that Petitioner while in service, she was allowed study leave for a period of two (2) years to pursue Ph.D. degree vide office order dtd.09.01.2015 of Opp. Party No. 2 under Annexure-4. Accordingly, Petitioner was relieved from her duty w.e.f.02.03.2015 vide Annexure-5 and vide letter dtd.03.03.2015 under Annexure-6, Petitioner was allowed to pursue the Ph.D. degree under the guidance of Dr. S.K. Das, Reader in Chemistry. Thereafter, vide letter dtd.04.05.2015 so issued by Opp. Party No. 2 under Annexure-7, it was held that during the period of study leave, Petitioner will be entitled only to leave salary, which is equal to pay and allowance drawn by her immediately before proceeding on such study leave.

4.1. It is contended that, Petitioner completed the Ph.D. work for the period from 03.03.2015 to 02.03.2017 and accordingly she was relieved of her duty w.e.f.28.02.2017, in order to enable her to join in her parent college vide letter dtd.28.02.2017 under Annexure-8. It is contended that after availing the benefit of study leave for the period in question and her rejoining on 01.03.2017, Petitioner attained the age of superannuation, and retired from service w.e.f.31.03.2019 as reflected in the communication issued by the College under Annexure-11.

4.2. However, it is contended that while the matter stood thus, impugned communication dt.22.06.2021 was issued by the Govt.-Opp. Party No. 1 under Annexure-16, by holding that the Petitioner since has acquired the

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Ph.D. degree after her retirement, she is not eligible and entitled to get the benefit of study leave for the period from 03.03.2015 to 02.03.2017. It is also contended that because of such nature of the communication issued under Annexure-16, Petitioner though retired on 31.03.2019, but she was not sanctioned with her pension and other pensionary benefits and she was only sanctioned with provisional pension. But in terms of the order passed by this Court on 21.04.2023, Petitioner was sanctioned with all the benefits save and except withholding the amount as received towards study leave.

4.3. It is contended that since Petitioner was allowed to prosecute the Ph.D. degree by availing the study leave in terms of the office order issued on 09.01.2015 under Annexure-4 of Opp. Party No. 2, after availing the said benefit and much after her retirement on 31.03.2019, the impugned communication could not have been issued by Govt.-Opp. Party No. 1 on 22.06.2021 under Annexure-16. It is accordingly contended that the impugned communication is not sustainable in the eye of law.

5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the preliminary counter affidavit so filed by Opp. Party No. 1. Placing reliance on Para 7 of the counter, learned Addl. Govt. Advocate contended that since the Petitioner availed the aforesaid study leave with having less than 5 years of service left, she was not eligible and entitled to get the benefit of study leave in terms of the provisions contained under Rule 13(2) of the Odisha Education (Leave of Teachers & Others members of the Staff of Aided Educational Institution) Rules, 1977. The stand taken in Para 7 of the counter affidavit reads as follows:-

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"7. That, it is here apposite to reflect the provisions of 13 (2) of the Odisha Education (Leave of Teachers and Others members of the staff of aided educational institution) Rules, 1977-study leave will not ordinarily be granted to a teacher of an aided college of less than 5 (five years of service) or to a teacher within three years of the date on which he will attend the age of compulsory retirement. So far as the present petitioner is concerned, she had only 4 years and 8 months of service to retire at the time of sanction of her study leave. In this connection, the Govt. Department guidelines for grant of study leave to the teachers of non Govt. colleges which was issued vide letter No. 72917/HE, dtd.30.10.1996 at para-11 clearly mentions that Lecturers/Readers selected to avail themselves of study leave shall be required to execute a bond to the effect that they will serve at least for a period of five years in the aided colleges after completion of study leave granted in their favour. For better appreciation the photo copy of Govt. Letter No. 72917/HE, dtd.30.10.1996 is annexed as Annexure-A/1."

5.1. It is also contended that even though Petitioner availed the study leave for the period from 03.03.2015 to 02.03.2017, but she could not acquire the Ph.D. degree prior to her retirement as reflected in Annexure-

12. It is contended that since the Petitioner could not acquire the Ph.D. degree prior to her retirement, the benefit of study leave that was allowed in her favour with sanction of the pay and allowance, was rightly refused by the Govt. vide Annexure-16 communication dtd.22.06.2021.

6. To the stand taken in the counter affidavit, learned counsel for the Petitioner contended that since by the time the impugned communication was issued on 22.06.2021 under Annexure-16, Petitioner had already retired w.e.f.31.03.2019, in view of the decision of the Hon'ble Apex Court 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 effected from a retired employee.

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6.1. 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, 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).

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(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."

7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the Petitioner was allowed to take study leave for the period from 03.03.2015 to 02.03.2017 in terms of the order issued by the Director on 09.01.2015 under Annexure-4. Petitioner after availing the study leave for the period from 03.03.2015 to 02.03.2017 joined in her duty as reflected in communication dtd.28.02.2017 under Annexure-8 & 9. Petitioner while so continuing retired from her service on attaining the age of superannuation on 31.03.2019 as reflected in Annexure-11.

7.1. Since the benefit extended in favour of the Petitioner towards study leave for the period from 03.03.2015 to 02.03.2017 was cancelled after her retirement vide the impugned communication dtd.22.06.2021 under Annexure-16, placing reliance on the decision in the case of Rafiq Masih so followed in the case of Thomas Danial, this Court is of the view that no recovery can be effected from a retired employee.

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7.2. In view of the same, this Court is inclined to quash the impugned communication dtd.22.06.2021 so issued under Annexure-16. While quashing the same, this Court directs Opp. Party No. 1 to release the withheld amount, so drawn by Petitioner towards study leave, within a period of six (6) weeks from the date of receipt of this order.

8. The writ petition is disposed of accordingly.

(BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 12th of August, 2024/Sneha

Location: High Court of Orissa, Cuttack