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2016 DIGILAW 1225 (ORI)

Sarat Kumar Samal v. State of Odisha

2016-12-09

B.R.SARANGI

body2016
JUDGMENT : B.R. SARANGI, J. The petitioner, who is working as Senior Assistant under Utkal University, Vani Vihar, Bhubaneswar, files this application to quash order dated 03.12.2012 under Annexure-5, by which direction has been given for effecting recovery of excess payment made to 24 employees of the University through the III contemplated upgradation scheme devised during the year 1984-85. 2. The factual matrix of the case, in brief, is that the petitioner having requisite qualification was appointed as Junior Assistant by following due procedure against a substantive vacancy on 18.12.1987. Due to increase of workload and keeping in view the yardstick, the syndicate of the University made a proposal to upgrade certain posts of Junior Assistant to that of Senior Assistant in the post-graduate department of Utkal University. Accordingly, the high power committee, known as syndicate sub-committee, which was constituted by virtue of the resolution of the syndicate dated 17.11.1994 gave a proposal for upgradation of 22 posts of Junior Assistant to that of Senior Assistant in the post-graduate teaching department of the Utkal University. Pursuant to such resolution dated 17.11.1994, the University recommended for upgradation of 22 posts of Junior Assistant to that of Senior Assistant. Accordingly, on the basis of the recommendation made by the syndicate sub-committee, the syndicate in its meeting dated 14.12.1994 unanimously resolved that 22 posts of Junior Assistant working in different teaching departments were being upgraded to Senior Assistant without creating cadre post either on higher or lower level. 3. The petitioner, who was appointed against a substantive post of Junior Assistant, the said post having been upgraded as Senior Assistant, he was promoted vide office order dated 19.04.1995. Consequentially, he joined the said post and allowed to draw salary in the higher scale admissible to the post by the University. While substantive vacancies were created in the post of Senior Assistant, the petitioner was adjusted against regular vacancy in the scale of pay of Rs.4750-7500/-vide office order dated 05.05.2000 and from that date he had been continuing as a regular Senior Assistant having promoted from the post of Junior Assistant. 4. On 03.12.2002 vide Annexure-5 an office order was issued by opposite party no.2 to the following effect: “The Hon’ble Chancellor wanted to know the progress of recovery of unentitled benefits given to 24 employees of the University through the III contemplated upgradation scheme devised by Utkal University during the year 1984-85. 4. On 03.12.2002 vide Annexure-5 an office order was issued by opposite party no.2 to the following effect: “The Hon’ble Chancellor wanted to know the progress of recovery of unentitled benefits given to 24 employees of the University through the III contemplated upgradation scheme devised by Utkal University during the year 1984-85. The Registrar apprised that the University has sought a clarification from the Chancellor’s Secretariate/Government regarding the pattern of recovery. The Hon’ble Chancellor expressed displeasure over such dilatory measures and opined that the upgradation post its own scheme for effecting recovery of the excess payment and report recovery of the total amount of Rs.4,00,720/-by (sic).” Consequent upon issuance of above office order, opposite party no.2 had withdrawn the Senior Assistant scale of pay for the period from 14.09.1995 to 04.05.2002. As the petitioner, having been allowed by the University, had discharged his duty in the upgraded post of Senior Assistant with effect from 19.04.1995 till 04.05.2000, when steps were taken for recovery of the excess amount paid in the scale of pay of Senior Assistant, i.e., in the upgraded post, he approached this Court by filing the present writ application. 5. Mr. K. Mohanty appearing on behalf of Mr. B. Routrary, learned Senior Counsel for the petitioner states that pursuant to office order dated 03.12.2002 opposite party no.2 has withdrawn the Senior Assistant scale of pay of Rs.1400-2300/-for the period from 14.09.1995 to 04.05.2000 and allowed the petitioner to draw the scale of pay of the Junior Assistant, which is absolutely a misconceived one, in as much as since the post of Junior Assistant had been upgraded to the post of Senior Assistant on 19.04.1995 the petitioner discharged the responsibility of the post of Senior Assistant and subsequently against substantive post of Senior Assistant he had been promoted with effect from 05.05.2000, the direction given for recovery of the differential amount for the period from 19.04.1995 to 04.05.2000, during which the petitioner had discharged the duty of Senior Assistant, cannot sustain in the eye of law. To substantiate his contention, he has relied upon State of Punjab v. Rafiq Masih (white washer), (2015) 4 SCC 334 : AIR 2015 SC 696 . 6. Mr. B.Bhuyan, learned Addl. To substantiate his contention, he has relied upon State of Punjab v. Rafiq Masih (white washer), (2015) 4 SCC 334 : AIR 2015 SC 696 . 6. Mr. B.Bhuyan, learned Addl. Government Advocate states that it is a matter between the University and its employees and, therefore, the State Government has nothing to do with the same and, as such, no counter affidavit has been filed on behalf of the State opposite party. 7. Mr. K.P. Nanda, learned counsel appearing on behalf of opposite party no.2, while supporting the action of the University, states that upgradation of posts of Junior Assistant to Senior Assistant, being not in conformity with the provisions of law, direction for recovery of the differential salary from the petitioner for the period from 19.04.1995 to 04.05.2000 cannot be faulted. He, however, admits that even though the order impugned has been passed, by virtue of the interim order passed by this Court on 30.07.2003, the differential salary already paid to the petitioner for the post of Senior Assistant has not been recovered. 8. This Court heard learned counsel for the parties. As it is a year old case of 2003, on the basis of the pleading available on record, with the consent of the parties the matter has been disposed of at the stage of admission. 9. As is borne out from records, the petitioner was appointed as Junior Assistant and had been discharging his duty with effect from the date of his initial appointment, i.e., 18.12.1987. Due to resolution passed by the syndicate, since the post was upgraded to Senior Assistant, the petitioner was allowed to discharge the duty w.e.f 19.04.1995 against the upgraded post of Senior Assistant. Subsequently, on creation of regular vacancy in the cadre of Senior Assistant, the petitioner was promoted on regular basis to the said post w.e.f. 05.05.2000. The chancellor having reviewed the decision of the syndicate came to a conclusion that the upgradation of 24 posts of Junior Assistant to Senior Assistant, being not in conformity with the provisions of law, direction was made to recover the differential amount from such upgraded employees holding the post of Senior Assistant. But, fact remains, the petitioner had not automatically discharged the duty in upgraded post of Senior Assistant at his own accord, rather on the basis of the decision made by the syndicate. But, fact remains, the petitioner had not automatically discharged the duty in upgraded post of Senior Assistant at his own accord, rather on the basis of the decision made by the syndicate. If the post had been upgraded by the authority and the petitioner had discharged his duty against the said upgraded post of Senior Assistant and was allowed to receive salary, the direction given for recovery of the amount cannot be held to be justified. When the petitioner has undisputedly discharged his duty in the upgraded post of Senior Assistant and paid with the salary admissible to the said post, at best, it can be construed that the petitioner, who is an employee of the university, is a beneficiary of the wrongful monetary gain at the hands of the employer. Thereby, he cannot be compelled to refund the same, as no fraud or misrepresentation is attributed to the petitioner at any stage. 10. In the case of State of Punjab v. Rafiq Masih (white washer), (2015) 4 SCC 334 : AIR 2015 SC 696 , cited on behalf of the petitioner, the apex Court in paragraphs-7, 8, 9 and 10 held as follows: 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice -social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. 10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.” Finally, in paragraph-18 the apex Court laid down the principles where the amount paid in excess can be recovered, which runs 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. 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 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. (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. (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.” In view of the law laid down by the apex Court, as mentioned supra, the petitioner’s case is squarely covered under clause-(i), (iv) and (v) Para 18. 11. Similar question had come up for consideration before this Court in Akshaya Kumar Patra v. Managing Director, Andhra Pradesh Power Generation Corporation Ltd. 2016 (I) OLR 627 and this Court was of the considered view that for direction given re-fixation of pay and refund of salary after lapse of ten years period cannot sustain in the eye of law taking into consideration the law laid down by the apex Court in Rafiq Masih mentioned supra. 12. Applying the aforesaid principle to the present context, as the case of the petitioner falls within the parameters of clause (i), (iv) and (v) of paragraph-18 of Rafiq Masih (supra), the order impugned dated 03.12.2012 in Annexue-5 cannot be sustained and, accordingly, the same is hereby quashed. Consequentially, the amount, which has already been paid to the petitioner in upgraded post of Senior Assistant, cannot be recovered, as it is stated that the same has not yet been recovered. 13. The writ petition is accordingly allowed. No order to cost. Petition allowed.