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Orissa High Court
Nidra Khamari vs State Of Odisha And on 16 March, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3530 of 2021
Nidra Khamari .... Petitioner
Mr. N. Rath, Adv.
-versus-
State of Odisha and
Others
.... Opp. Parties
Mr. P.K. Panda, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
Order ORDER
No 16.03.2026
06. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel for the Parties.
3. The present Writ Petition has been filed inter alia
with the following prayer:-
"It is therefore most humbly prayed that
this Hon'ble Court may graciously be pleased to
admit this writ application, issue "Rule NISI in the
nature of writ of mandamus quashing the order.
dtd. 25.11.2020 as at Annexure-19 and further
directing the opp. Party No.1 to take 2 final
decision on the letter dtd. 181.2000 of opp. party
No.2 as at Annexure-2 for condonation of break in
service and . accordingly extend the pension and
other pensionary benefits in favour of the
petitioner within a period _ stipulated by this
Hon'ble Court
// 2 //
II. To quash the decision of opp. party no.3
dtd. 9.3.2015 as at ~ Annexure-14 for recovery of
amount of Rs.5,02,524/. from the petitioner
showing it as excess payment.
And to further direct the opp. Parties to
release the pension and other pensionary benefits
of the petitioner."
4. Learned counsel for the petitioner contended that
while continuing as a Staff Nurse in the establishment of
Opp. Party No.3, Opp. Party No.1 on the face of the
request made by Opp. Party No.2 vide his letter dated
18.01.2000
under Annexure-2, never took a decision with
regard to regularization of the leave period so availed by
the petitioner at different point of time.
4.1. Not only that prior to taking a decision on the
request made under Annexure-2 and considering the
application submitted by the petitioner on 08.02.2010 to
take Voluntary Retirement from Service, the same was
allowed by the Opp. Party No.3 vide order dated
30.06.2010 under Annexure-3.
4.2. It is contended that after accepting the application
for Voluntary Retirement vide order dated 30.06.2010,
petitioner was sanctioned with the Provisional Pension
w.e.f. 01.07.2010 vide order dated 17.08.2010 of Opp.
Party No.3 under Annexure-5. However, when final
pension papers were submitted by the self-same Opp.
Party No.3 to the office of Opp. Party No.4 vide letter dated
18.09.2013 under Annexure-9, objection was raised by
the office of Opp. Party No.4 vide letter dated 06.01.2014
// 3 //
under Annexure-9 and another objection vide letter dated
25.06.2014 under Annexure-10.
4.3. Basing on such objection raised by the office of Opp.
Party No.4, Opp. Party No.3 vide letter dated 27.10.2014
under Annexure-11, revised the provisional pension of the
petitioner to Rs.5940/- + T.I. on the face of the provisional
pension sanctioned earlier vide order at Annexure-5 at
Rs.8910/- +T.I.. It is contended that subsequently when
office of Opp. Party No.4 raised another objection with
issuance of letter dated 28.01.2015 under Annexure-13,
Opp. Party No.3 vide communication dated 09.03.2015
under Annexure-14, held the petitioner liable to refund a
sum of Rs.5,02,524/- i.e. excess payment drawn by her
towards Provisional Pension, Provisional DCRG and
Commuted value of pension etc.
4.4. It is contended that petitioner though made a
representation before Opp. Party No.1 seeking
regularization of the break period of service in terms of the
communication issued under Annexure-2 and no decision
was taken, she moved the Tribunal by filing O.A. No.566
of 2018. The Tribunal vide order dated 04.04.2018 under
Annexure-17, when directed Opp. Party No.1 to take a
decision on the petitioner's claim and the same was not
acted upon, petitioner again approached this Court by
filing W.P.(C) No.3725 of 2020.
// 4 //
4.5. This Court vide order dated 05.02.2020 under
Annexure-18, when directed Opp. Party No.1 to comply
the order passed by the Tribunal in its order dated
04.04.2018 under Annexure-17, the impugned order has
been passed by Opp. Party No.1 vide order dated
25.11.2020 under Annexure-19. While complying the
direction of the Tribunal with passing of the impugned
order, petitioner has been directed to re-fund the excess
amount paid to her so reflected in the communication
dated 09.03.2015 under Annexure-14.
4.6. Learned counsel for the petitioner contended that
since petitioner is a retired employee and after allowing
her Voluntary Retirement vide order dated 30.06.2010,
petitioner was sanctioned with the benefit of provisional
pension by sanctioning her at Rs.8910/- + T.I. and so also
Commuted value of pension and Provisional DCRG,
petitioner is not eligible to pay the excess amount paid to
her in view of the decision of the Hon'ble Apex Court in the
case of State of Punjab & Others Vs. Rafiq Masih, AIR
2015 SC 696 so followed in the case of Thomas Daniel
Vs. State of Kerala & Others, 2022 Live Law (SC) 438.
Hon'ble Apex Court in Para 18 of the judgment in the
case of Rafiq Masih and in Para-18 of the judgment in
the case of Thomas Daniel has held as follows.
xxx xxx xxx
// 5 //
"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.
"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).
(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.
// 6 //
(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."
4.7. It is accordingly contended that not only the
communication issued on 09.03.2015 under Annexure-14
is illegal but also the impugned order dated 25.11.2020,
so passed by Opp. Party No.1 under Annexure-19.
5. Learned Addl. Standing Counsel on the other hand
made his submission basing on the stand taken in the
counter affidavit so filed by Opp. Party No.1 to 3. It is
contended that while continuing as a Staff Nurse, a
proceeding was initiated against the petitioner for her
remaining on unauthorized long leave vide Memorandum
dated 26.11.1990. While finalizing the said proceeding,
vide order dated 07.10.1992 under Annexure-A/3, though
the Disciplinary Authority who happens to be Opp. Party
No.2, held certain period of leave to be treated as leave
due and admissible but an order was passed to remove
the petitioner from her services w.e.f. 07.01.1985, as per
the provisions contained under Rule-72(2) of the Odisha
Service Code.
5.1. However, on the face of such order, no action was
taken in removing the petitioner from her services because
of long continuance on leave which exceeds more than 5
years in terms of Rule-72(2) of the Odisha Service Code. It
is however contended that on the face of such order
passed by the Opp. Party No.2 under Annexure-A/3, a
// 7 //
further recommendation was made by the self-same Opp.
Party No.2 on 18.1.2000 under Annexure-2, with a
request to Opp. Party No.1 to regularize the leave period of
the petitioner.
5.2. Not only that prior to acceptance of the said request
with passing of any order by Opp. Party No.1, application
submitted by the petitioner to take Voluntary Retirement
from her service on 08.02.2010 was allowed by Opp. Party
No.3 vide his order dated 30.06.2010 under Annxure-3.
After allowing the petitioner to take Voluntary Retirement,
Opp. Party No.3 sanctioned Provisional Pension at
Rs.8910/- + T.I. vide order dated 17.08.2010 under
Annexure-5.
5.3. However, basing on the objection raised by the office
of Accountant General-Opp. Party No.4, provisional
pension of the petitioner was reduced to Rs.5940/- + T.I.
w.e.f. 01.07.2010 vide order dated 27.10.2014 under
Annexure-11. It is contended that at no point of time,
petitioner assailed such rejection of the grade pay to
Rs.5940/- T.I. to Rs.8910/- + T.I..
5.4. Since reduction of the provisional pension so made
vide order dated 27.10.2014 under Annexure-11, was
never challenged by the petitioner, vide the impugned
communication dated 09.03.2015 under Annexure-14,
petitioner was directed to refund the excess payment
// 8 //
drawn towards Provisional Pension, Provisional DCRG and
Commuted value of pension etc.
5.5. Instead of challenging such refund indicated in the
impugned communication dated 09.03.2015 under
Annexure-14, petitioner moved Opp. Party No.1 by making
a representation under Annexure-15 and 16 with a prayer
to regularize the break period of service and to sanction
the final pension. As no action was taken on such
representation made by the petitioner under Annexure-15
and 16, petitioner moved the Tribunal by filing O.A.
No.566 of 2018. The Tribunal vide order dated 04.04.2018
under Annexure-17, directed Opp. Party No.1 to take a
decision on the petitioner's claim so made in her
representation under Annexure-15 and 16.
5.6. As no action was taken on the order passed by the
tribunal, petitioner approached this Court by filing W.P.(C)
No.3725 of 2020. This Court vide order dated 05.02.2020
under Annexure-18, when directed Opp. Party No.1 to
comply the order passed by the Tribunal, in compliance of
the same, the order under Annexure-19 was passed on
25.11.2020, so impugned.
5.7. Learned Addl. Standing Counsel contended that
since reduction of the provisional pension so made vide
order dated 17.10.2014 under Annexure-11, was never
assailed by the petitioner at any point of time even though
he approached the Tribunal in O.A. No.566 of 2018 and
// 9 //
also this Court in W.P.(C) No.3725 of 2020, the excess
payment made to the petitioner towards her provisional
pension, provisional gratuity as well as commuted value of
pension, in terms of the original order issued initially on
17.08.2010 under Annexure-5, petitioner was held liable
to refund the excess payment drawn by her.
5.8. Since the modified order allowing the provisional
pension in favour of the petitioner at Rs.5940/- + T.I. was
never assailed by the petitioner, petitioner is liable to
refund the excess amount drawn by her towards such
provisional pension and on other heads and no illegality or
irregularity can be found, either with the impugned
demand indicated in the communication dated 09.03.2015
under Annexure-14 or in the impugned order issued on
25.11.2020 under Annexure-19.
5.9. It is accordingly contended that no illegality or
irregularity can be found with the impugned order.
6. Having heard learned counsel for the parties and
considering the submission made, this Court finds that
petitioner while in service, though a proceeding was
initiated against her vide Memorandum dated 26.11.1990
and while disposing the same vide order dated 07.10.1992
under Annexure-A/3, the Disciplinary Authority held the
petitioner to be removed from Govt. service w.e.f.
07.01.1985 as per Rule-72(2) of the Odisha Service Code,
but the same was never acted upon. On the face of such
// 10 //
order passed by the Opp. Party No.2, the self-same
authority vide his letter dated 18.01.2000 under
Annexure-2, requested the Govt. to regularize the leave
period of the petitioner.
6.1. Not only that prior to passing of any order by the
Govt. on such request made under Annexure-2,
application submitted by the petitioner to take Voluntary
Retirement from her service on 08.02.2010, was accepted
by the Opp. Party No.3 vide order dated 30.06.2010 under
Annexure-3.
6.2. Petitioner on being allowed to take Voluntary
Retirement w.e.f. 30.06.2010, she was sanctioned with the
provisional pension vide order dated 17.08.2010 under
Annexure-5 and in the said order, petitioner was held
entitled to get provisional pension at Rs.8910/- + T.I.
6.3. Basing on such sanction of provisional pension,
petitioner was also released with the Commuted value of
pension and provisional gratuity. However, it is found that
vide order dated 27.10.2014 under Annexure-11, Opp.
Party No.3 reduced the entitlement of the petitioner
towards provisional pension from Rs.8910/- + T.I. to
Rs.5940/- + T.I. Such reduction of the Provisional Family
Pension was never assailed by the petitioner at any point
of time.
6.4. Since reduction of the provisional pension so made
by Opp. Party No.3 vide order dated 27.10.2014 under
// 11 //
Annexure-11, was never assailed by the petitioner, it is
the view of this Court that petitioner is liable to refund the
excess amount drawn by her towards provisional pension,
provisional gratuity as well as commuted value of pension
so reflected in the impugned communication dated
09.03.2015 under Annexure-14 and confirmation of the
same vide order dated 25.11.2020 under Annexure-19.
This Court accordingly is not inclined to interfere with
either of the aforesaid two orders.
6.5. However, since request made by Opp. Party No.2
with regard to regularization of the leave period of the
petitioner has not yet been disposed of in accordance with
law as contended and petitioner has been allowed
voluntary retirement, which was never withdrawn, this
Court while disposing the Writ Petition, directs Opp. Party
No.1 to take a decision on the request made under
Annexure-2 as expeditiously as possible preferably within
a period of 2 (two) months from the date of receipt of this
order.
6.6. On such regularization of the leave period,
provisional pension of the petitioner be re-assessed and
after such re-assessment, petitioner's liability for refund of
any amount be calculated. It is also observed that after
such regularisation of the leave period, Opp. Party No.3
shall submit the final pension paper of the petitioner to
Opp. Party No.4 without any delay and Opp. Party No.4
// 12 //
will do the needful with regard to sanction of final pension
and other retiral benefits as due and admissible.
7. The Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Basudev
Location: High Court of Orissa, Cuttack
