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2016 Supreme(Ori) 55
IN THE HIGH COURT OF ORISSA, CUTTACK
B.R. SARANGI, J.
Akshaya Kumar Patra – Petitioner
Versus
Managing Director, Andhra Pradesh Power Generation Corporation Ltd. & Others – Opposite Parties
W.P. (C) Nos. 2997, 3639, 4898 of 2008
Decided On : 28-01-2016
For the Petitioner: M/s. J.K. Khuntia & A.K. Rout.
For the Opposite Parties : M/s. Kamal Ray, A.K. Baral, M/s. B.K. Nayak-1 & D.K. Mohanty.
Headnote:SERVICE - Pay fixation - Petitioner extended with the benefits of revised scale of pay of 1994, 1998, 2006 and 2008 - After lapse of 10 years, the impugned order has been issued by re-fixing his pay and directing for recovery of the excess amount already paid to him - Writ - Whether the authorities are justified in re-fixing the pay of the petitioner and directing for recovery of the excess amount already paid to him after a lapse of 10 years ? - Held, No - Direction given for re-fixation of pay and refund of salary after lapse of 10 years period, cannot sustain in the eye of law - Orders quashed.
"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.
(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."
JUDGMENT :
B.R. Sarangi, J.
1. All these above mentioned writ petitions having involved similar cause of action, they were heard together and are disposed of by this common judgment.
2. W.P. (C) Nos. 2997 and 3639 of 2008 have been filed to quash the letter dated 6.2.2008 issued by the Andhra Pradesh Power Generation Corporation Ltd. vide Annexure-9 whereas W.P. (C) No. 4898 of 2008 has been filed to quash the very same letter dated 6.2.2008 in Annexure-7 for fixation of pay and recovery of the amount already paid since re-revision has not been done in accordance with law.
3. For better appreciation, it would be suffice to state the fact of W.P. (C) No.2997 of 2008. The factual matrix of the case in hand is that Machhakund Hydro Electric Joint Scheme is a joint venture of Andhra Pradesh Government and Government of Odisha having 70% and 30% share respectively in the said project. As per the minutes of discussion, the employees of both the States will be governed by their respective States’ service condition. Due to commencement of the Electricity Reforms Act, Machhakund Hydro Electric Joint Scheme and Andhra Pradesh State Electricity Board were reformed and renamed as Andhra Pradesh Power Generation Corporation having the same principles and guidelines which prevailed earlier. The petitioner in W.P. (C) No. 2997 of 2008 was appointed as Lower Division Clerk in the year 1978 under the Government of Odisha in Energy Department and posted at Balimela Hydro Project pursuant to which he joined at Balimela on 4.6.1982. He was transferred to Rengali Hydro Electric Circle and joined there on 04.06.1982. During his continuance at Rengali, he was promoted to the post of Upper Division Clerk in the year 1990 and was transferred to Upper Indravati Project, where he joined. Again, he was transferred to Rengali Hydro Electric Circle in the year 1991. While he was so continuing, Orissa Hydro Power Corporation was created pursuant to the Orissa Electricity Reforms Act 1996. Consequentially, the services of the petitioner along with other employees of the State Government working under the Electrical Construction Projects were placed under the jurisdiction of the Orissa Hydro Power Corporation. The petitioner was transferred to Machhakund Hydro Electric Joint Scheme where the State of Odisha is having 30% share in the project including the staffs and assets. The petitioner joined at Machhakund on 3.6.1993 where he exercised his option to come under the Andhra Pradesh State Electricity Board pay scales and the same was allowed as per the terms and conditions applicable to Machhakund Project. Accordingly, his pay was fixed at Rs.4,375/- in the post of U.D.C. as per the Andhra Pradesh State Electricity Board Revised Pay Scales, 1994, which commenced from 1.7.1990 and expired on 30.6.1994. Thereafter, Andhra Pradesh State Electricity Board revised Scales of Pay Rules, 1998 came into force with effect from 1.7.1998. The petitioner exercised his option to come over to the said revised pay scales with effect from 1.2.1999 on the date of earning his next increment. The petitioner was put under suspension by his parent Department, i.e. O.H.P.C. Ltd. on 5.1.1999 A.N. and the same was effected w.e.f. 6.1.1999 F.N. As per the existing rules, the petitioner received his salary for 5.1.1999 in the scale of pay fixed in terms of Andhra Pradesh State Electricity Board Revised Pay Regulations, 1998 in the manner as is applicable to the employees of Andhra Pradesh State Electricity Board in the retirement/death on or after 1.4.1998 but before 1.7.1998 As the petitioner joined in Machhakund on 3.6.1998 i.e. before the cut-off date the petitioner was included in the 1994 Pay Revision, which was the existing pay scale for the purpose of revised Pay Scales of 1998, vide Clause No. 2 (ii) of the Board Proceedings No.225 dated 5.1.1999 before expiry of 1994 negotiated wage settlement, i.e., before 30.6.1998 for which financial benefits is allowed w.e.f. 1.7.1998 instead
