Dismissed

State of Odisha v. Kamal Lochan Majhi

Orissa HC11 Feb 2020WP(C)/17191/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an Administrative Tribunal’s order which prohibited the State from recovering last service pay from retired Class III/IV employees. The Court upheld the dismissal based on established guidelines prohibiting recovery that would be iniquitous or harsh, while noting the State could recover the amount from the negligent officer.

What did the court decide?

Writ application dismissed; direction prohibiting recovery from respondent authorities upheld.

State of Odisha Vs Kamal Lochan Majhi — Service and Employment | Orissa HC (2020)

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W.P.(C) NO.17191 of 2018

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11.02.2020

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Heard learned Additional Government Advocate appearing for the petitioners-State.

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By way of this petition, the petitionersState have challenged the common order dated 21.09.2017 passed by learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack under Annexure-1.

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Learned Tribunal upon hearing learned counsel for the parties and on perusal record has passed the impugned order. Paragraph-5 of the impugned order is relevant for adjudication of the case which is reproduced as under:-

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“5. Now the question is whether the amount which has already been paid can be recovered. As submitted by learned counsel for the applicants, the issue has already been decided by the Tribunal in O.A. No. 694(C)/ 2011 and the Tribunal vide order dtd. 11.04.2012 have quashed the letter No.4507 dtd.27.03.2010 and 9548, 9549 dtd. 03.04.2010. The said letters have been impugned in this case. As those letters have already been quashed and the respondent authorities have not challenged the said order, there is no scope to take a different view directing recovery, on the basis of the said letters. It may be noted that similar issue has been raised in the case of State of Punjab and others vrs. Rafiq Masih (While Washer) etc., in Civil Appeal No.11527 of 2014, disposed of on 18th December, 2014, where the Hon’ble Apex Court, examining all the aspects, issued the following guidelines and summarized the situation, where recovery by the employer would not be permissible, which reads as follows:-

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“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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(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.

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Keeping in view the principle as settled by the Hon’ble Apex Court in the case referred to above and as the letter vide Annexures-6 and 7 have already been quashed by the Tribunal which order has already attained finality, the action of the respondents to recover the amount is illegal and not permissible. It may be stated at the cost of repetition that as the impugned orders have already been quashed in O.A. No.694(C)/2011,

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the respondent authorities are directed not to take any action for recovery of the amount already paid pursuant to the said letters.

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The O.As. are accordingly allowed and disposed of.”

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In view of the observation of the learned Tribunal as quoted above, we see no reason to interfere with the order impugned herein. However, it would be open for the State Government to recover the amount from the officer concerned, who has made payment negligently to the original applicant, by following due procedure of law.

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Accordingly the writ application stands dismissed.

…………………………….

C.R. Dash, J.

……………………………..

S.K. Panigrahi, J.

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Subha

State of Odisha v. Kamal Lochan Majhi

Case brief

What is this about?

What did the court decide?

State of Odisha v. Kamal Lochan Majhi

Case brief

What is this about?

What did the court decide?

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