Ramesh Chandra Behera Vs Md,Odisha Construction Corporation Ltd.

Challenging the Office Order dated 17.08.2015 passed by the Managing Director of Odisha Construction Corporation LimitedOpposite Party No.1 under Anenexure-4, wherein the order dated 04.06.2012 of the General Manager (Mechanical), Central Workshop, Rasulgarh, Bhubaneswar was modified and it was directed for recovery of excess payment made to him from the monthly salary and assailing the Order dated 05.11.2016 passed by the Senior Manager (Civil), Monitoring & Co-ordination, Odisha Construction Corporation Limited-Opposite Party No.4 under Annexure-6, wherein the representation has been rejected, the Petitioner has approached this Court by way of filing this writ petition invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with following prayer(s):-

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“Under the above circumstances, it is therefore humbly prayed that, this Hon‟ble Court be graciously pleased to issue notices to the Opp. Parties, calling upon

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them to show cause, as to why the order under Annexures-4 & 6 respectively shall not be quashed and if the Opp. Parties fail to show cause or submit insufficient cause, then this Hon‟ble Court be graciously be pleased to quash the order under Annexure-4 & 6 respectively and issue a writ in the nature of writ of mandamus, directing the Opp. Parties to extend the benefit of ACP as well as RACP/increments which is admissible to the petitioner in accordance with law within a stipulated time.

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And further this Hon‟ble Court may graciously be pleased to pass any other order(s)/direction(s) as would be deemed fit and proper in the circumstances of the case; And for this act of kindness, the petitioners as in duty bound shall ever pray.”

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The Petitioner, initially appointed as Messenger in a Class-IV Post on 1^st March, 1990 in the Regular Establishment of the Corporation, was selected and appointed as Assistant Store Keeper (WCR/WC) vide Office Order No.OCC-L-1381/2010/5366, dated 14^th May, 2010 pursuant to advertisement issued by the Board of Directors of Corporation in 228^th Meeting on 31^st December, 2009 for the post of Assistant Store Keeper under the Work-Charged Establishment under certain terms and conditions, including the provision of pay protection (Annexure-1). The pay of the Petitioner was initially fixed at Rs.3,625/- in the scale of Rs.3,200-4,900/- with effect from 15^th May, 2010 and, subsequently, it was revised and fixed at Rs.7,610/- by virtue of implementation of the 6^th Pay Commission recommendation with effect from 15^th May, 2010.

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The Managing Director of Odisha Construction Corporation Limited-Opposite Party No.1 vide Office Order No.OCC/L554/90/8238/(G/E), dated 17.08.2015 under Annexure-4 passed the following order:-

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“In pursuance to Head Office Order No.OCC-L13812010/5366 dt.14.5.2010, Sri Ramesh Chandra Behera Messenger joined on 14.5.2010 (AN) in the post of Asst. Storekeeper (WC) in the scale of pay of Rs.5200-20200/with Grade pay of Rs.2000/- with pay protection at Central Workshop, Rasulgarh, Bhubaneswar.

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While taking in account for grant of ACP of Sri Behera in the post of Messenger (Regular) at Central Workshop, Rasulgarh Bhubaneswar, his pay has ambigiously been fixed at Rs.7880/- by giving promotional benefit by adding one increment instead of pay protection only at Rs.7610/- with effect from 15.4.2010 in the Scale of Pay of Rs.5200-20200/- with Grade Pay of Rs.2000/- by the General Manager (Mech.), Central Workshop, Rasulgarh, Bhubaneswar vide Office Order No.OCC/CWS/Estt596/1690 dt.4.6.2012.

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In order to rectify the ambiguity the pay of Sri Behera is hereby re-fixed with effect from 1.1.2006 in the post of Messenger (Regular) on grant of ACP and subsequent increments sanctioned as per enclosed refixation of pay statement duly approved by the Managing Director.

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The order No.OCC/CWS/Estt-596/1690 dt.04.06.2012 of General Manager (Mech.), Central Workshop, Rasulgarh, Bhubaneswar is partially modified.

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The excess payment made to this effect shall be recovered from the monthly salary of Sri Behera in due course.”

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Therefore, the Petitioner submitted representation to Opposite Party No.1 for non-recovery of excess payment towards increments sanctioned during fixation of pay and subsequent annual increments under Annexure-5. Said representation has come to be rejected vide order dated 05.11.2016 (Annexure-6) by the Senior Manager (Civil), Monitoring & Co-Ordination, Odisha Construction Corporation Limited-Opposite Party No.4 with the following order:-

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“With reference to the letters cited above, I am directed to intimate that, the matter has re-examined and finally concluded that the approval order of Head Office under Sl.No.01 does not require further modification as per the terms and conditions of the appointment order No.OCC.L.1381/2010/5366 dt.14.05.2010.”

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Dissatisfied thereby, the Petitioner has approached this Court by way of filing this writ petition challenging the orders dated 17.08.2015 and 05.11.2016 under Annexures-4 and 6 respectively.

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Mr. Nirmal Chandra Das, learned counsel assisted by Ms. Sharmistha Dash, learned Advocate referred to Rule 74(b) of the Odisha Service Code, which stands thus:-

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“Where a Government servant holding a post is promoted or appointed to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued.”

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7.1. He submitted that the aforesaid provision is applicable to the Government employees. Since the Odisha Construction Corporation Limited being Government undertaking, the benefit available to the Government employees should also be extended at par with the employees of the said Corporation.

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7.2. Learned counsel appearing for the Petitioner submitted that after being appointed as Assistant Store Keeper against vacant post on 14.05.2010 by virtue of Office Order dated 14.05.2010, the pay was fixed at Rs.3200-85-4900/-, which could not be directed for recovery

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by issue of Office Order dated 17.08.2015 with specious plea that payment made on mistaken notion could be rectified and recovered by the employer.

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7.3. Placing heavy reliance on the decision of the Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih, AIR 2015 SC 696 he contended that no recovery can be permissible at the belated stage from an employee working as Assistant Store Keeper. Therefore, he essentially submitted to quash Annexures-4 & 6 emphasizing not to recover the alleged excess payment alleged to have been made.

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Mr. Laxmidhar Pangari, learned Senior Advocate along with Mr. Abhishek Sahoo, appearing for the Opposite Parties strenuously argued that the Opposite Parties being the Odisha Construction Corporation Limited, Rule 74(b) of the Odisha Service Code does not attract to the present case, because the employees of the Corporation cannot be treated at par with the employees of the Government. In this respect, he has relied on the decision of the Hon’ble Supreme Court in the case of The State of Maharashtra and others vs. Bhagwan and others, AIR 2022 SC 345, wherein the following has been observed:-

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“ 10. In view of the above factual scenario, the question posed is:

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“Whether the employees of WALMI, which is an independent autonomous entity registered under the Societies Registration Act, are entitled to the pensionary benefits on a par with the State Government employees?”

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10.1. While answering the aforesaid question, few decisions of this Court on the inference of the courts in the policy decision having financial implications and whether the employees of the board/societies, who are autonomous bodies can claim parity in the pay scale and/or other benefits which may be available to the government employees, are required to be considered.

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10.2 . In T.M. Sampath Vrs. Ministry of Water Resources, (2015) 5 SCC 333, the employees of National Water Development Agency (NWDA), an autonomous body under the aegis and control of the Ministry of Water Resources claimed the pensionary benefits on a par with the Central Government employees. Refusing to allow such pensionary benefits to the employees of NWDA on a par with the Central Government employees, in paras 16 and 17, it was observed and held as under :

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“16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 01.05.1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. Vrs. Union of India, (2005) 4 SCC 649, it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression “State” and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is “State” under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in State (UT of Chandigarh) Vrs. Krishan Bhandari, (1996) 11 SCC 348, the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases

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where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be “Central Government employees” as stated in the OM for its applicability.”

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As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on a par with the government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the autonomous Board/body cannot be put on a par.

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10.3 . In the case of Punjab State Coop. Milk Producers Federation Ltd. Vrs. Balbir Kumar Walia, (2021) 8 SCC 784, in para 32, it is observed as under : (SCC p. 805)

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“32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State. ”

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10.4 . As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications.

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Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.”

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8.1. He also relied on the decision of this Court in the case Kalpataru Pati Vrs. State of Odisha and others, 2023(II) ILR-CUT 936, wherein a co-ordinate Bench of this Court observed as follows:-

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“24. Further, law is well settled that the employees of an autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees, Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and the service conditions. The State Government and the autonomous board/body cannot be put on par. In this regard a recent judgment of the apex in State of Maharashtra & anr. Vrs. Bhagawan & Ors. reported in Mannu/SC/0025/2022:2022 Live Law (SC) 28 is relevant and Paragraph 17 being relevant to the present lis, is extracted below:

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“17. Even if it is presumed that NWDA is “State” under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in State (UT of Chandigarh) Vrs. Krishan Bhandari, (1996) 11 SCC 348, the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is

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between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be “Central Government employees” as stated in the OM for its applicability.”

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As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on a par with the government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the autonomous Board/body cannot be put on a par. ”

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8.2. Learned Senior Advocate appearing for the Opposite Parties, therefore, urged that since Rule 74(b) of the Odisha Service Code does not apply to the present fact-situation, the Odisha Construction Corporation Limited, an autonomous entity, the pay fixation as made under Annexure-4 is justified and deserves no interference by this Court.

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8.3. He further referred to the following clause vide Office Order dated 14.05.2010:-

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“His annual increment shall be drawn on completion of one year of continuous service in the post of Assistant Storekeeper”.

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8.4. He submitted that the said clause was overlooked, and the effect of Officer Order dated 14.05.2010 was not given appropriately.

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Mistake committed by the Corporation being detected, Office Order dated 17.08.2015 was issued seeking to recover the excess payment made. The representation submitted by the Petitioner was duly considered and rightfully rejected vide memo No.2252/OCC, dated 05.11.2016 under Annexure-6. He vehemently contended that the payments made in excess of what is due to the employee require to be recovered which needs no indulgence in exercise of power under Articles 226 and 227 of the Constitution of India.

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Considered the submissions and rival contentions made by the learned counsel for the respective parties. There is no dispute with respect to excess payment being made on erroneous fixation of pay. 10. Regard being had to The State of Maharashtra and others (supra) and Kalpataru Pati (supra), there is no ambiguity in the conceptual understanding that the Odisha Construction Corporation Limited being an independent autonomous entity, the employees working thereunder cannot claim, as the matter of right, the same service benefit on par with the Government employees. Record does not evince that the Corporation has adopted the service Rules, as is available for the Government Servants . Therefore, the contention of the Petitioner that the Petitioner having been discharging his duty in the post of Assistant Store Keeper and the increment being sanctioned in the said post, does not hold water inasmuch as Rule 74(b) of the Odisha Service Code does not apply to the present case.

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However, when the contention of the Petitioner is examined in the light of the judgment in the case of Rafiq Masih (supra) and Coordinate Bench of this Court in the Case of Bhakta Charan Mishra Vrs. State of Odisha, 2023 (I) ILR-CUT 196, this Court finds force in the submission of the learned counsel for the petitioner that no recovery can be made merely citing excess payment of pay being

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made. This Court in Bhakta Charan Mishra (supra) observed as follows:

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“30. The Apex Court has dealt with such an issue in Syed Abdul Qadir Vrs. State of Bihar, (2009) 3 SCC 475, wherein in paragraph 58 the following observation has been recorded:

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„58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.‟

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31. The Supreme Court in its judgment in Syed Abdul Qadir (supra) recognized that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorized payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference is that because an action is iniquitous, must really be perceived as interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it

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difficult for the employee to provide for the needs of his family. Based on the above consideration, the Supreme Court iterated that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.

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32. In Shyam Babu Verma v. Union of India, (1994) 2 SCC 521

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, the Supreme Court observed as under:

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„11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330- 480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.‟

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33. In State of Punjab Vrs. Rafiq Masih, AIR 2015 SC 696, the Supreme Court observed:

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“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:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (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. (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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11.1. In Thomas Daniel Vrs. State of Kerala, 2022 SCC OnLine SC 536, Hon’ble Supreme Court after noticing earlier judgments including Rafiq Masih (supra), observed as follows:

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“14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.”

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In the present case no plea has been set up by the opposite parties to contend that there was misrepresentation or fraud attributable to the petitioner; rather, the opposite parties have conceded that on detection of mistake, the Odisha Construction Corporation Ltd. has sought to rectify the same and recover the excess amount paid to the petitioner. Such a course is against the principles enunciated as referred to above.

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On conspectus of the above facts and guided by the precedents cited by the learned counsel for the respective parties, this Court is of the view that the Office Order dated 17.08.2015 under Annexure-4 issued by Opposite Party No.1 is liable to be quashed and hereby, set aside and As a consequence thereof, the rejection of representation with a prayer to re-examine the matter vide Memo No.2252/OCC, dated 05.11.2016 under Annexure-6 is also set aside. Accordingly, the Opposite Parties are directed to consider the Petitioner’s fixation of pay as has already been made. Consequential effect of this Order be given to the petitioner.

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In the result, the writ petition succeeds and the same stands disposed of.

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(M.S. Raman) Judge

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Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Feb-2025 18:38:28

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Ramesh Chandra Behera v. Md,Odisha Construction Corporation Ltd.

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Ramesh Chandra Behera v. Md,Odisha Construction Corporation Ltd.

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