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2024 Supreme(Ori) 165
IN THE HIGH COURT OF ORISSA AT CUTTACK
B.P.ROUTRAY, J.
Deepak Kumar Das - Petitioner
Versus
State of Odisha and others - Opposite Parties
W.P.(C) No.36651 of 2021
Decided On : 19-12-2024
Important Points
Subject
Employment Law - Salary Recovery
Headnote
(B) Recovery Principles - The court cited established principles that prohibit recovery from retired employees or those nearing retirement, particularly when the excess payment detected was from a long time ago. (Paras 7, 8)
Facts of the case:
The petitioner challenged a recovery order dated 9th November 2021 for excess salary paid from January 1996 to May 2020, asserted as illegal due to lack of communicated reasons and proximity to retirement. (Paras 1, 3)
Findings of Court:
The order of recovery was set aside as it was held to be in violation of the established principles relating to salary recoveries from near-retirement employees. (Para 9)
Issues: The main issues involved were legality of the recovery order, adequacy of communicated reasons, and its timing in relation to the petitioner’s retirement. (Paras 5, 6)
Ratio Decidendi: The court concluded that recovery orders must adhere to established principles, highlighting the illegality of recovering amounts from employees shortly before retirement, especially when such excess payments were known and continued for over 20 years. (Paras 8, 9)
Result: Writ petition allowed; recovery order set aside.
Advocate Appeared:
For the Petitioner:Mr.S.S.Das, Sr.Advocate
For the Opposite Parties :Mr.D.Mohanty, Addl. Government Advocate Mr.D.Mohapatra, Advocate
| Table of Content |
|---|
| 1. excess salary recovery order. (Para 1 , 3) |
| 2. arguments for/against recovery order. (Para 4 , 5 , 6) |
| 3. principles governing recovery from salary. (Para 7 , 8) |
| 4. recovery before retirement is impermissible. (Para 9) |
| 5. writ petition allowed; recovery set aside. (Para 10) |
JUDGMENT :
B.P. Routray, J.
1. Challenge in the writ petition is to the impugned order dated 9th November 2021 at Annexure-23. The relevant portions of the said order are reproduced below:
“As per the order of Hon’ble High Court of Orissa in OJC No.13391 of 2011 & in pursuance to this Office Letter No.2463 dt.30.09.2021 & Letter No.2525 (WE) dt.18.10.2021 an amount of Rs.68,283/- per month for 8 months from the salary from 9/2021 to 4/2022 & Rs.68,284/- for 1 month from the salary of 05/2022 of Sri Deepak Kumar Das, Faculty member of WALMI are to be recovered as Sri Das has been paid excess towards salary for the period from 01.01.1996 to 31.05.2020.
Balance recovery other than the above will be made in due course.”
2. Heard Mr.Das, learned Senior Counsel for the Petitioner and Mr.Mohapatra, learned counsel for Opposite Party No.2-WALMI as well as Mr.Mohanty, learned Additional Government Advocate for the State.
3. Prior to filing of present writ petition, the Petitioner had approached this Court in W.P.(C) No.13391 of 2011, along with two others, praying for grant of revised UGC scale of pay with effect from 1st January 1996 at par with their counterpart lecturers working under the Government. This Court vide judgment dated 17th August 2017 directed to extend such benefits in favour of the Petitioner and two others. Consequently, the Opposite Parties released the benefit in favour of the Petitioner in terms of their order dated 12th June 2020 (Annexure-18). Subsequent thereto, the impugned order of recovery dated 9th November 2021 (Annexure-23) was issued against the Petitioner directing for recovery of Rs.34,08,628/- in such suitable installments mentioned in the order.
4. WALMI has filed its counter stating therein that such direction for recovery of the excess amount paid to the Petitioner was due to finding of the fact that he is not standing equal with their counterpart in Governmentservice to receive career advancement scale of pay. But it is true that neither the order of recovery nor the counter affidavit filed by WALMI speak the exact reason for disentitlement of the Petitioner of such benefits leading to recovery.
5. Mr.Das, learned Senior Counsel for the Petitioner submits that, first of all, non-communication of reasons of recovery from the Petitioner is the illegality committed on the part of the authorities and so the order of recovery is liable to be set aside and secondly, just few months prior to his retirement, the authorities are debarred from proceeding against the Petitioner for recovery of such amount, which was granted to him with effect from 1st January 1996. In this regard, Mr.Das places his reliance on the decision of the Hon’ble Supreme Court in the case of State of Punjab and others vrs. Rafiq Masih (While Washer) and others, (2015) 4 SCC 334.
6. Mr.Mohapatra, learned counsel for WALMI, on the other hand, submits that since the Petitioner had drawn excess amount without having such requisite qualification to get the benefit of career advancement scale of pay, which was detected while accounting the benefits in favour of the Petitioner pursuant to the direction of this Court passed in W.P.(C) No.13391 of 2011, the order of recovery was issued immediately. Therefore, the Petitioner cannot have any right to oppose the order of recovery which was drawn without his entitlement or beyond his entitlement.
7. The principles of recovery from salary with regard to amount paid in excess to the employee has been settled in the case of Rafiq Masih (supra). The Hon’ble Supreme Court having discussed the previous decisions in that regard have decided the principle at para 18, as follows:
“18. It is not possible to postulate all situations of
