Orissa High Court
Akshaya Kumar Patra vs Managing Director Andhra Pradesh Power ... on 28 January, 2016
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) Nos. 2997, 4898, AND 3639 of 2008
In the matter of applications under Articles 226 & 227 of the
Constitution of India.
_________
In W.P.(C) No. 2997 of 2008
Akshaya Kumar Patra ......... Petitioner
Vrs.
Managing Director, Andhra
Pradesh Power Generation
Corporation Ltd. & Others .......... Opposite parties
In W.P.(C) No. 3639 of 2008
Jagadish Chandra Sahoo ......... Petitioner
Vrs.
Managing Director, Andhra
Pradesh Power Generation
Corporation Ltd. & Others ......... Opposite Parties
In W.P.(C) No. 4898 of 2008
Gopal Krushna Choudhury ......... Petitioner
Vrs.
Managing Director, Andhra
Pradesh Power Generation
Corporation Ltd. & Others ......... Opposite Parties
For petitioner : M/s. J.K.Khuntia, & A.K.Rout
For opp. parties: M/s. Kamal Ray & A.K.Baral
(Opp.Party No. 3)
M/s.B.K.Nayak-1 & D.K.Mohanty
(Opp.Party No.4)
________________
2
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 05.01.2016 | Date of judgment :28.01.2016
Dr. B.R.Sarangi, J.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 3 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 4 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 of 1.4.1998. Accordingly, the scale of pay of the petitioner was revised 5 in 1998 Pay Revision with effect from 1.2.1999, i.e. from the date of earning his next increment fixing his pay at Rs.8,235/-. Consequentially the petitioner was extended with the Pay Revisions of 1994, 1998, 2002 and 2006. But all on a sudden opposite party no.2 communicated a letter on 6.2.2008 indicating that the pay revision of the petitioner has been wrongly done from 1998 till 2006, which he is not entitled to get and further directed for recovery of the amount already paid to him. Accordingly, the pay of the petitioner has been revised from Rs.21,215/- to Rs.12,150/-. It is stated that similarly situated persons like the petitioner have got the said benefits and their pay has been revised as against 30% of Orissa quota after commencement of pay revision of 1990 and the petitioner having availed the revised scales of pay from 1998 and in the meantime 10 years having elapsed, the impugned letter re- fixing his scale of pay and directing for recovery of the amount cannot be sustained in the eye of law.
4. Mr.J.K.Khuntia, learned counsel for the petitioner urged that such re-fixation of scale of pay and direction for recovery pursuant to Annexure-9 without affording any opportunity of hearing to the petitioner is hit by Article 14 of the Constitution of India. It is further urged that if the similarly situated persons working against 30% Orissa quota deployed at Machhakund Project has been extended with such benefits, the direction given for recovery of the 6 salary after a lapse of more than 10 years is an arbitrary exercise of power and the same should be quashed. To substantiate his contention, he has placed reliance on State of Punjab and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334= AIR 2015 SC
696.
5. Mr.K.Ray, learned counsel for opposite party no.3 strongly urged that if benefit has been extended by the authority by mistake and if the said mistake has been brought to the notice of the authorities, they have every right to make such correction and therefore, the fixation of salary of the petitioner having been done erroneously and in audit the same having been detected, the authorities have not committed any illegalities or irregularities by issuing the order in Annexure-9 by re-fixing his scale of pay and directing for recovery of the excess amount already paid to the petitioner. In order to substantiate his argument, he has relied on the decision of the apex Court in Chandi Prasad Uniyal and others v. State of Uttarkhand and others, AIR 2012 SC 2951 and of this Court in Ras Bihari Mandal v. N.T.P.C. Ltd. and another, 2014(Supp-II) OLR 951.
6. Mr.B.K.Nayak-1, learned counsel for opposite party no.4 supports the stand taken by opposite party no.3 and states that if benefit has been extended to the petitioner under mistake, the same can also be rectified when the same was brought to the notice of the 7 authorities and therefore, no illegalities or irregularities have been committed in re-fixing the salary of the petitioner and directing for recovery of the excess amount already paid to the petitioner. He has also relied upon the judgment of this Court in Ras Bihari Mandal(supra).
7. On the basis of the facts pleaded above, it is admitted fact that the petitioner, who is an employee of the State of Odisha has been posted at Machhakund Project, which has been established on the joint collaboration of the State of Andhra Pradesh and State of Odisha and the petitioner's posting was against 30% Odisha quota pursuant to which he joined in the post on 3.6.1998. On option being called, the petitioner exercised the same and availed the benefit of revised scales of pay of 1998 and accordingly, his pay has been revised and he has been extended with the benefits as mentioned above. It appears that the petitioner was extended with the benefits of Revised Scales of Pay of 1994, 1998, 2006 and 2008 as against the post held by him, but all on a sudden 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. This Court while entertaining the writ petition passed interim order on 29.2.2008 directing stay of operation of the order dated 6.2.2008 in Annexure-9 so far as it relates to the petitioner. In the meantime, 8 on attaining the age of superannuation, the petitioner has already retired from service.
8. The sole question now to be considered is 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.
9. The opposite party no.3 has relied on Chandi Prasad Uniyal (supra) wherein the apex Court has held that 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. The apex Court also held that recovery of excess paid public money cannot be limited only to cases of fraud or misrepresentation. The concept of fraud or misrepresentation is not applicable to such situation. Excess payment made due to wrong pay fixation is liable to be recovered. More so, when there was clear stipulation in the fixation order that in case of wrong/ irregular fixation, the institution in which the employee works would be responsible for recovery of over payment made.
10. In Ras Bihari Mandal(supra) this Court has also taken a view relying upon the judgment of the apex Court that excess payment made due to wrong release of increments and if a mistake 9 is committed by the authority, the same can be rectified and if the mistake is brought to the notice of the authority, then they have every right to make such corrections. Therefore, payment made inadvertently is recoverable from the salary of the petitioner.
11. The judgment of the apex Court in Chandi Prasad Uniyal (supra) mentioned above in which the judgment in Sahib Ram v. State of Haryana (1995) Supp.(I) SCC 18= 1995 AIR SCW 1780) was taken into consideration, since there was an apparent difference of views expressed on the one hand by the apex Court in Shyam Babu Verma v. Unon of India (1994(2) SCC 521 and Sahib Ram v. State of Haryana, 1995 Supp(1) SCC 18 and in other hand in Chandi Prasad Uniyal (supra), the matter was referred to a larger bench of three judges, but the apex court while disposing of the reference, the three- Judges Bench in State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 has recorded the following observation:
"6. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant therein were in exercise of its extraordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.
Xx xx xx xx
13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment.
14. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for their appropriate disposal."10
12. Consequence thereof, the apex Court in State of Punjab v. Rafiq Masih (supra) has made their endeavour to lay down the parameters of fact situations wherein the employees who are beneficiaries of the wrongful monetary gains at the hands of the employer, may not be compelled to refund the same and the apex Court held that the instant benefit cannot extend to an employee merely on account of the fact that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. In paragraphs 7 to 10, the apex Court held as follows :
"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by6 the employer seeking recovery of monetary benefits wrongly extended to the 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 recover, 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, 11 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 employee concerned. If the effect of the recovery from the employee concerned 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 may 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, 39,39-A,43 and 46 contained in Part IV of the Constitution of India, dealing with the "decretive 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, be 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. In view of the aforestated 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, that 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 12 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 has held 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 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."
13. Applying the law laid down in State of Punjab v. Rafiq Masih( supra) to the present facts to since the case of the petitioner falls within the parameters of Clause (i) to Clause (iv) as delineated above, the principles laid down by the apex Court in Chandi Prasad Uniyal (supra) and of this Court in Ras Bihari 13 Mandal(supra) have no application. This Court is of the considered view that the direction given for re-fixation of pay and refund of salary after lapse of 10 years period, cannot sustain in the eye of law.
14. In view of the fact and law discussed above, the impugned orders in Annexure-9 so far as it relates to the petitioner in W.P.(C) Nos. 2997 and 3639 of 2008 and Annexure-7 in W.P.(C) No. 4898 of 2008 are hereby quashed.
15. The writ petitions are accordingly allowed. No cost.
.............................
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 28th January, 2016/PKSahoo/Ajay