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2017 DIGILAW 986 (ORI)

Biranchi Narayan Pradhan v. CESU

2017-09-05

SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N.PRASAD, J. - This writ petition is for issuance of direction upon the opposite parties to take steps for re-fixation of Fitment Scale of pay in favour of the petitioner w.e.f. 1.4.2017 as per Annexure-1 and no to recover the excess amount drawn on wrong pay fixation as alleged in Annexure-4, take immediate steps to pay Fitment scale of pay w.e.f. May, 2006 with a further direction upon the opposite parties to treat the petitioner as A.E. (El.) in view of the order dated 14.01.2003. 2. Case of the petitioner in brief is that he has joined his service under as Senior Charge-man under OSEB w.e.f. 25.08.1982 and continued there. He was promoted to the post of Junior Engineer (Electrical) w.e.f. 26.08.1989, the Govt. of Orissa has enacted Orissa Electricity Reform Act, 1995 with an intention to provide for the restructuring of the Electricity industry for the rationalization of the Generation, transmission, distribution and supply of electricity for avenues for participation of private sector entrepreneurs in the Electricity industry. The said Act came into force w.e.f. 20.04.1995. The provision of Electricity Reform Act, 1995 empowered the State Government to frame Transfer Scheme to provide for the transfer of the assets, interest in assets, rights and liabilities along with the personnel to GRIDCO or OHPC as the case may be,. The petitioner was transferred and permanently absorbed as Junior Engineer (Electrical) w.e.f. 1.4.1997 in view of the Transfer Scheme, Rules, 1996 under the Orissa Electricity Reform Act, 1996 and was given benefit of Fitment Policy made applicable by the GRIDCO vide office order dated 30.07.1997, whereby the petitioner’s scale of pay was fixed to Rs.6500-225-11000/-, the scale of pay for the petitioner after Fitment was fixed at Rs.6500/- + R.P.P. Rs.NIL w.e.f. 01.04.1997. The petitioner was continuing in the said pay scale, but all of a sudden his service has been handed over to the CESCO, now the CESU, and the pay scale granted by GRIDCO has been recalled by the order passed in this regard by the CESU vide order under Annexure-4 dated 3.1.2003 by passing an order for recovery of excess amount to the tune of Rs.98,771/- up to the month of April, 2006 which has been paid in favour of him up to the month of April, 2006 which has been found to be excess due to wrong pay fixation as has been done vide order No.3536 dated 27.08.1999 w.e.f. 1.4.1997. The petitioner has challenged the order under Annexurre-4 dated 3.1.2003 inter alia on the ground that the petitioner since was the permanent employee of the GRIDCO, thereafter his service was placed to CESU and as such it is only the GRIDCO who can take decision regarding recovery or re-fixation of his scale of pay but since it has been done by the CESU having no authority, the order is not sustainable in the eye of law. 3. Learned Counsel for the petitioner further submits that the direction of the part of recovery is also not sustainable in the eye of law in view of the guideline formulated by the Hon’ble Supreme Court in the case of State of Punjab vrs. Rafique Masih reported in AIR (2015) SC 696. 4. Learned Counsel for the opposite parties has vehemently opposed the submission of the learned Counsel for the petitioner by submitting that the contention of the petitioner regarding jurisdiction of the CESU is not fit to be resorted, reason being that in view of provision of The Orissa Electricity Reform (Transfer of Assets, Liabilities, Proceedings and Personnel of Gridco to Distribution Companies) Rules, 1998 there is a provision under Rule 9 i.e. from the Appointed Date in place of GRIDCO it will be treated as CESU, and as such it is the only the CESU to take any action pertaining to the service conditions of the petitioner, accordingly the CESU by resorting to the provision of Rule 9 of the Rules, 1998, has rectified the wrong fixation of pay which was done by the GRIDCO, hence the CESU having its jurisdiction has taken right decision. They submits that so far as the part of recovery is concerned even on the basis of the judgment in the case of State of Punjab vrs. Rafique Maish, reported in AIR 2015 SC 696 , recovery cannot be said to be illegal since the petitioner is not coming under the fold of the guideline formulated by the Hon’ble Supreme Court in the said judgment. Heard learned Counsel for the parties and perused the documents available on record. 5. The petitioner claims to get the pay scale of Rs.6050-225-11000/- as per Annexure-1 dated 17/27.08.2009. The fixation of pay scale has been fixed by the GRIDCO, the petitioner who was under the service of the then OSEB but by virtue of the reformation of State Electricity Board, his service has been handed over to the GRIDCO and subsequently on its reorganisation in various units bifurcating it for the distribution, transmission or Generation, the service has been placed under the then CESCO, subsequently under CESU. The CESU has issued order dated 14.01.2003 under Annexure-2 whereby and where under the authorities have come to the conclusion that the Junior Engineers who have received the Fitment scale and have been designated as Junior Engineer (Selection Grade) w.e.f. 1.4.1997 in the pay scale of Rs.6050-225/11000/- will be disengaged as Assistant Engineer (Electrical) w.e.f. 1.1.2003 in the said scale of pay. Since the same has been found to be a re-designation and involves no re-refixation of pay. Accordingly, the authorities have come out with a decision on 3.1.2003 intimating the petitioner to recover the excess amount to the tune of Rs.98,771/- which has been paid to him up to the month of April, 2006 due to wrong fixation of pay scale by virtue of the order No.35356 dated 27.08.1999 w.e.f. 1.4.1997. The said order is under challenge in this writ petition on the ground that CESU has got no jurisdiction to take such decision. 6. The said order is under challenge in this writ petition on the ground that CESU has got no jurisdiction to take such decision. 6. This Court has examined the provision of Orissa Electricity Reform (Transfer of Assets, Liabilities, Proceedings and Personnel of Gridco to Distribution Companies Rules, 1998 which has been enacted upon in exercise of power conferred by Sub-section (5) of Section 23 read with Section 55 of the Orissa Electricity Reform Act, 1995 (Orissa Act 2 of 1996) as amended by the Orissa Electricity Reform (Amendment) Ordinance, 1998 (Orissa Ordinance No.3 of 1998), the State Government after consultation with the Grid Corporation of Orissa Limited has made the transfer scheme for the purpose of providing and giving effect to the implementation of a scheme for transfer of the Distribution Undertakings of the Grid Corporation of Orissa Ltd. to the distribution Companies. The “Appointment Date” has been defined i.e. the date on which these rules have been come into force w.e.f. date of its notification in the Official Gazette. 7. Learned Counsel for the opposite parties has relied upon the provision of Rule 9 wherein the learned Counsel for the petitioner has relied upon the provision of Rule 4, which pertains to the conditions applicable to transfer of specified Personnel, is being reproduced herein below : 4. Conditions applicable to transfer of Specified Personnel. (1) The transfer of specified Personnel from Gridco to the respective Distco shall be subject to the following, namely: (a) that the terms and conditions of the service applicable to them on the Appointed Date shall not in any way be less favourable than or inferior to those applicable to them immediately before the Appointed Date. (b) the Specified Personnel shall have continuity of service in all respects provided, however, that those Specified Personnel who opt for the pension scheme in accordance with Rule 43 of O.C.S. ( Pension Rules) 1992 as amended by Government of Orissa, Finance Department Resolution Pen.41/96-25926/F dated 4th. (b) the Specified Personnel shall have continuity of service in all respects provided, however, that those Specified Personnel who opt for the pension scheme in accordance with Rule 43 of O.C.S. ( Pension Rules) 1992 as amended by Government of Orissa, Finance Department Resolution Pen.41/96-25926/F dated 4th. June 1996 shall have continuity of service in all respects except for pension rights where the continuity of service shall be calculated from 1st April 1997 only: (c) subject to clause (b) above, all benefits of service accrued before the Appointed Date shall be fully recognised and taken into account for all purposes including the payment of any and all terminal benefits; and (d) any orders that may be passed by the Courts in proceedings pending on the Appointed Date in regard to seniority or other matters concerning the service conditions of the Specified Personnel; (2) The Specified Personnel on the Appointed Date shall cease to be in the service of Gridco and they shall not assert or claim any benefit of service in Gridco from the Appointed Date except as provided in these rules: (3) Subject to the provisions of the Act and these rules upon transfer of the Distribution Undertakings: (a) the Specified Personnel shall form a part of the relevant Distco in terms of these and shall be entitled to all the service benefits from the Appointed Date from such Distco, and (b) the status of the Specified Personnel as in the employment of Gridco, namely permanent, temporary, ad hoc, contractual or otherwise before the Appointed Date shall continue and the Specified Personnel shall not be entitled to claim any change in status by reason of the transfer in terms of these rules. (4) Gridco shall, in consultation with the Distcos, constitute forthwith a committee consisting of representatives from Gridco and each of the Distcos to receive representations from the Personnel in regard to the transfer of personnel to the Distcos in terms of these rules and to make recommendations on the matter to Gridco within 60 days from the Appointed Date or with such extended period as may be decided by the State Government. (5) Gridco shall, within a period of 30 days from the date of receiving the recommendation of the Committee under Sub-rule (4), take a decision on the allocation of the relevant Personnel to be made to the Distcos or retained as Gridco Personnel based on the recommendation of the Committee under Sub-rule (4) and shall record reasons for the decision. (6) If Gridco makes any decision under Sub-rule (5) the Personnel concerned shall be deemed to have been classified as on the Appointed Date for all intent and purpose as the specified Personnel of the relevant Distco or Personnel forming part of the service of Gridco, as the case may be. (7) The existing conditions of the service and the service regulations of Gridco shall apply mutatis mutandis to the Specified Personnel transferred to the Distcos, till the distcos frame the service regulation subject however to the conditions specified in Sub-rule (1). (8) The corpus for meeting Gridco’s pension, gratuity and all other applicable terminal benefits obligations to the Personnel shall be apportioned among Gridco and the Distcos in proportion to their liabilities on his count .An actuary shall be appointed by Gridco to determine the assets of the funds to be transferred to the Distcos with reference to 31st March 99 and any shortfall in the funds allocated to any of the Distcos on this account as ascertained by an actuarial valuation made with reference to 31st March 99 shall be made good by Gridco. The liability to pay such terminal benefit to all Personnel who retire on or before the appointed Date shall remain with Gridco. (9) Except as otherwise provided, in these rules in respect or all statutory and other schemes and all employment related matters including the provident fund, gratuity fund, pension fund or any other special fund created or existing for the benefit and in respect of the specified Personnel, from the appointed Date the relevant Distco shall stand substituted for Gridco for all intents and purposes and all the rights, powers and obligations of Gridco in relation to any and all such matters shall become those of the relevant Distco. (10) The proceedings including disciplinary proceedings pending against the Specified Personnel as on the Appointed Date which relate to misconduct, lapses or acts of commission or omission committed before the Appointed Date shall not abate by reason of their transfer and the same may be continued by the relevant Distco. It is evident from the provision as contained under Rule 4 (1) (a) and (c), upon which the learned Counsel for the petitioner relied upon, the provision of Rule 4 (a) speaks regarding no alteration in the service conditions which is less favourable than or inferior to those applicable to them immediately before the Appointed Date and Rule 4 (1) (c) speaks that all benefits of service accrued before the Appointed Date shall be fully recognized and taken into account for all purposes including he payment of any and all terminal benefits. The provision of Rule 4 (9) speaks regarding the power of the authority of the CESU which is being quoted herein below : “4.(9) Except as otherwise provided, in these rules in respect or all statutory and other schemes and all employment related to matters including the provident fund, gratuity fund, pension fund or any other special fund created or existing for the benefit and in respect of the Specified Personnel, from the Appointed Date the relevant Distco shall stand substituted for Gridco for all intents and purposes and all the rights. Powers and obligations of Gridco in relation to any and all such matters shall become those of the relevant Distco.” This provision indicates that wherever the word GRIDCO is there it will be read as CSU. 8. So far as the contention of the learned Counsel for the petitioner, that the benefit which has been accrued in favour of any employee on the Appointed Date, it will not be less favourable, there is no dispute about the settled proposition of law but the question that if any benefit to a particular employee is not applicable, he cannot claim that right. The employee has to substantiate his legal vested right to get any service condition, if any benefits has been given prior to the “Appointed Date” by the erstwhile employer wrongly that does not mean that the employee will continue to get it, even after the Appointed Date. 9. The employee has to substantiate his legal vested right to get any service condition, if any benefits has been given prior to the “Appointed Date” by the erstwhile employer wrongly that does not mean that the employee will continue to get it, even after the Appointed Date. 9. The petitioner in the instant case claims for pay scale of Rs.6500-225-11000/- on the ground that he has been promoted to the post of Junior Engineer (Selection Grade) but what has been gathered by this Court from the record available that it is not a case of up-gradation of post rather it is re-designation of the post and it is settled that in case of re-designation there cannot be up-gradation in the pay scale otherwise there will be no difference in between the promotion and re-designation. Accordingly, the authorities have issued an office order on 14.01.2003, whereby decision has been taken to retract back from earlier decision by recalling the decision of fixing pay scale of the petitioner in the scale of Rs.6500-225-10000/-, which according to them was granted due to mistake. 10. In view of the aforesaid facts, the petitioner since was not entitled to get higher pay scale even prior to the Appointed Date, he will not be allowed to get pay scale after the Appointed Date by taking help of the provision of Rule 4 (c), since was not applicable to him. 11. So far as the jurisdiction of the CESU is concerned, the provision of Rule 9 which provides that in place of GRIDCO it will be read as CESU and as such whatever the power has been conferred upon the GRIDCO prior to the Appointed Date it will be automatically conferred upon the CESU. In view thereof, the CESU has rightly exercised its jurisdiction. 12. The petitioner’s further contention is that the excess monetary benefit disbursed cannot be recovered, to fortify his argument, he has relied upon the judgment rendered in the case of State of Punjab and others vrs. Rafiq Masih reported in AIR 2015 SC 696 . 13. The opposite party while opposing the contention by putting reliance upon the judgment rendered by the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others vrs. State of Uttarakhand and others reported in AIR 2012 SC 2951 . 14. Rafiq Masih reported in AIR 2015 SC 696 . 13. The opposite party while opposing the contention by putting reliance upon the judgment rendered by the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others vrs. State of Uttarakhand and others reported in AIR 2012 SC 2951 . 14. The judgment rendered by the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal clearly laid down the proposition at para-16, 17 and 18, which are being reflected herein below :- “16. We are concerned, with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effect over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake, possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 17. We , are therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir Case (2009 AIR SCW 1871) (supra) and in Col. B.J. Akkara (2006 AIR SCW 5252) (supra) the excess payment made due to wrong/irregular pay fixation can always be recovered. 18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. 18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant’s salary in twelve equal monthly installments.” The judgment rendered in the case Chandi Prasad Uniyal (supra) clearly laid down the proposition if any amount has been paid it has to be recovered since the same is tax payer’s money and when it has been paid to any of public servant excess to his entitlement. The judgment relied upon in the case of State of Punjab and others vrs. Rafiq Masih has also been considered by this Court in which the guideline has been laid down under para-12 which is being reflected herein below : “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 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 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 from 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.” Learned Counsel for the petitioner has submitted that his case is coming under the fold of para-12 (ii), (iii) and (iv). The conditions mentioned in para-12 (iii) relates to restraining the authorities not to recover when excess amount has been made within the period of 5 years before the order of recovery is issued. 15. This Court has examined the factual aspect of the matter in order to examine as to whether the petitioner is coming under the parameter of the aforesaid condition ? 16. The petitioner was while in service the order of recovery was passed, this Court has stayed the recovery part of the order, but during pendency of writ petition, he retires and as such the condition No. (ii) of para-12 of aforesaid judgment will not applicable since the same contains condition of no recovery from employer, who are to retire within one year. The excess amount has been allowed to be given to the petitioner by virtue of order dated 27.08.1999 w.e.f. 1.4.1997, which was paid up to the month of April 2006. Thereafter the order of recovery was passed on 3.1.2007, as such the excess payment has been made for the period from 1.4.1997 till April 2006 and immediately after lapse of 9 months, the order of recovery has been passed, hence the petitioner is not coming under the fold of 12 (iii) of the judgment. 17. Thereafter the order of recovery was passed on 3.1.2007, as such the excess payment has been made for the period from 1.4.1997 till April 2006 and immediately after lapse of 9 months, the order of recovery has been passed, hence the petitioner is not coming under the fold of 12 (iii) of the judgment. 17. So far as the arguments of the learned Counsel for the petitioner that he is coming under the fold of Para-12 (iv), which pertains to recovery in cases where an employee has wrongfully been required to discharge duty of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post, the fact of the instant case is not like that of the said ground since the petitioner has never been allowed to work in the higher post rather it is only the re-designation of the post in which he was working and as such condition under 12 (iv) is not applicable. 18. In view of discussions made above admittedly the petitioner has been paid excess to his entitlement and as such decision of the authority of making recovery cannot be said to be illegal. Since, it has already been discussed that the ratio of judgment of Hon’ble Supreme Court rendered in the case of Rafiq Masih (supra), is not applicable in the facts and circumstances of the case. 19. It is evident from the judgment given in Rafiq Masih (supra) the earlier judgment rendered in the case of Chandi Prasad Uniyal (supra) has not been overruled in its subsequent judgment rendered in the case of Rafiq Masih (supra) and as such in the facts of given case, the ratio of judgment of Hon’ble Apex Court rendered in the case of Chandi Prasad Uniyal (supra) will be applicable. Accordingly, I find no reason to interfere with the decision of the authority. Hence, the writ petition is dismissed. Petition dismissed.