Orissa High Court
Union Of India & Others vs Hrushikesh Dehury .... Opp. Party on 22 October, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.43193 of 2023
Union of India & others .... Petitioners
Mr. D.R. Bhokta, CGC
-versus-
Hrushikesh Dehury .... Opp. Party
None
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No.
22.10.2024
03. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
Heard Mr. D.R. Bhokta, learned Central Government
Counsel appearing for the petitioner.
The petitioners have filed this writ petition
challenging the order dated 15.09.2023 passed by the
learned Central Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No.129 of 2022 thereby quashing the
order of recovery dated 22.11.2021.
In the aforesaid Original Application, the present
Opposite Party Hrushikesh Dehury has prayed, inter alia,
for a direction to quash the order of recovery vide Order
No.36/22/2017-Estt./829 dated 22.11.2021 in his respect
and consequently, to issue direction to the respondents
therein (petitioners herein) to refund the amount with
interest which has already been recovered from the
petitioner and further to grant the differential salary for
the period from 26.03.2018 to 11.06.2019, i.e., during the
period in which the petitioner was illegally reverted.
Learned Tribunal after hearing learned counsel for
both the parties passed the order holding as follows :-
"13. It is not the case of the respondents that
the applicant had obtained the promotion due to
mistake on his part or withholding of any
information. If employee is appointed to officiate
on a higher rank involving assumption of duties
and responsibilities of greater importance than
those of substantive post, then he is entitled on
the salary of officiating post. The applicant had
worked in the said post after being given
promotion and therefore he is eligible to get the
pay for the said post and the recovery of the
same is illegal. The citations relied on by the
learned counsel for the respondents are not
applicable to the facts and circumstances of the
present case since the case of Debendra Sharma
(supra) relied on by respondents is about
claiming salary on the basis of forged letter of
appointment. The case of Sanjay K Sinha (supra)
relied on by the respondents is also distinct since
it was about creation of posts and appointment
therein. In the instant case, the respondents
wrongly calculated the vacancies and gave
appointment and subsequently revered which
they corrected after the order of this Tribunal
dated 17.10.2019.
14. In view of the discussions above, the order of
recovery dated 22.11.2021 (A/8) is quashed.
Resultantly the respondents are directed to
refund any amount recovered from the applicant
within a period of 60 days. However the prayer
of the applicant for grant of differential salary for
the period from 26.03.2018 to 11.06.2019 is not
accepted since the applicant had not performed
the duties and responsibilities of the higher post
of SI Gr. II during that period."
Mr. D.R. Bhokta, learned Central Government
Counsel appearing for the petitioners urged that O.A.
Nos.650 & 651 of 2017, O.A. Nos.169, 170. 171, 172 &
177 of 2018 were heard analogously and a common order
was passed, so far as O.A. Nos.650 & 651 of 2017, but so
far as the petitioners' case, i.e., O.A. No.172 of 2018 is
concerned, a separate order was passed and in O.A.
Nos.650 & 651 of 2017, a specific order was passed by the
learned Tribunal that the petitioners would be at liberty to
pass appropriate order to withdraw or disallow any service
benefit that would have accrued to the applicants because
of the interim order dated 07.12.2017 after following due
process of law and in view of such order passed by the
learned Tribunal in O.A. Nos.650 & 651 of 2017, steps
have been taken against the opposite parties for recovery
of the amount already paid as per the order of recovery
dated 22.11.2021.
After hearing learned counsel for the petitioners and
going through the order passed by the learned Tribunal in
O.A. Nos.650 & 651 of 2017, we found that the present
Opposite Party Hrushikesh Dehury was not an applicant in
the two Original Applications and in view of the specific
order passed by the learned Tribunal in those two Original
Applications, which were disposed of by a common order
that the petitioners would be at liberty to pass appropriate
order to withdraw any benefit would not be applicable for
the opposite party as in the case of the opposite party
whose Original Application is O.A. No.170 of 2018, which
was disposed of along with O.A. Nos.169, 171, 172 & 177
of 2018 by a common order dated 17.10.2019, no such
liberty was granted to the petitioners for recovery of any
service benefits, which have already been given to the
opposite party.
Learned counsel for the Opposite Party has
relied upon the decision of the Hon'ble Supreme Court in
the case of State of Punjab -Vrs.- Rafiq Masih
reported in (2015) 4 Supreme Court Cases 334,
wherein it is held as follows:
"6. In view of the conclusions extracted
hereinabove, it will be our endeavour, to lay
down the parameters of fact situations, wherein
employees, who are beneficiaries of wrongful
monetary gains at the hands of the employer,
may not be compelled to refund the same. In
our considered view, the instant benefit cannot
extend to an employee merely on account of the
fact, that he was not an accessory to the
mistake committed by the employer; or merely
because the employee did not furnish any
factually incorrect information, on the basis
whereof the employer committed the mistake of
paying the employee more than what was
rightfully due to him; or for that matter, merely
because the excessive payment was made to
the employee, in absence of any fraud or
misrepresentation at the behest of the
employee."
After going through the ratio laid down by the
Hon'ble Supreme Court and the findings of the learned
Tribunal, we are of the view that when the Opposite Party
has been appointed to officiate on a higher rank involving
assumption of duties and responsibilities of greater
importance than those of substantive post and when he
had not obtained promotion due to mistake on his part or
withholding any information from the petitioners and he
has already received the amount, then the learned
Tribunal was justified in holding that the recovery would
be illegal. We are also of the view that the learned
Tribunal is quite justified in differentiating the judgments
of the Hon'ble Supreme Court, relied upon by the
petitioners, in the cases of State of Bihar -Vrs.-
Devendra Sharma reported in (2020) 15 Supreme
Court Cases 466 and Sanjay K. Sinha-II -Vrs.- State
of Bihar reported in (2004) 10 Supreme Court Cases
734 wherein the factual aspects were quite different than
that of the case in hand. Therefore, the learned Tribunal is
justified in quashing the order of recovery dated
22.11.2021, which was passed against the opposite party.
Accordingly, the writ petition being devoid of merits
stands dismissed.
(S.K. Sahoo)
Judge
(Chittaranjan Dash)
M.K.Rout
