Benyamini Machha vs State of Orissa and Others

S.N. Prasad, J—Petitioner has approached this Court for issuance of direction upon the opposite parties challenging action of recovery of sum of Rs. 23,280/- from the arrear pension on the ground he has drawn excess salary for two years.

Case of the petitioner is that he after discharging his service as Primary School Teacher under the District Inspector of Schools, Malkangiri-I Education district separated from service w.e.f. 30.6.1985 on attaining age of superannuation.

After superannuation pension has been sanctioned but after making recovery of Rs. 23,280/- on the pretext that service condition provides age of superannuation as 58 years but the petitioner has illegally been permitted to continue in service till age of 60 years thereby he has been paid salary for two years illegally.

Contention of the petitioner that there is misrepresentation on the part of the petitioner and till 30.6.1988 availed salary on account of judgment rendered in the case of Rama Chandra Das v. State of Orissa and others, reported in Vol. 65(1985)CLT 253 by which it has been held that Non Government Aided Primary School Teachers appointed prior to 15.3.1986 shall continue in service till 60th years of age or till 15.3.1986 whichever is earlier. Hence continuance of petitioner in service after 58 years of age cannot be said to be illegal.

This Court vide order dated 4.12.2000 issued to the opposite parties but no counter affidavit has been filed.

However, learned counsel for the opposite party-State has submitted that the petitioner knowing the fact very well that there is no change in the service condition regarding date of compulsory retirement which was at that time 58 years but the petitioner in connivance with of officers has continued in service for further two years and superannuated from service after attaining age of 60 years and as such petitioner has been paid salary for two years which is illegal. Accordingly, decision has been taken by the authority to deduct sum of Rs. 23,280/- from the pensionary benefits of the petitioner hence there is no illegality in the decision undertaken by the authority.

Heard learned counsel for the parties and perused the documents on records.

Fact which is not in dispute is that petitioner has been appointed as Primary School Teacher in a school. Petitioner continued his service and retired from service after attaining age of 60 years. According to the petitioner in view of the judgment rendered by this Court as indicated above, he was entitled to retire till age of 60 years and accordingly he was allowed to discharge his duty till age of 60 years, this fact has not been disputed.

In this respect, resolution dated 25.7.1992 issued by the Finance Department of the Government of Orissa needs to be referred to by which Government has taken decision that Heads of Offices are to initiate action for preparation of pension papers, two years before the date on which a Government servant is due to retire on superannuation and collect all requisite date pertaining to the retiring Government servant on year before of his/her retirement in order to complete the procedural exercises, eight months in advance of the date of retirement. Where the head of office is not the Appointing Authority, the later on receipt of the pension papers from the former, shall sanction the pension under intimation to the Accounts Officer, not later than 4 months before the retirement of Government servant.

In view of this decision of the Government it is suggested that different departments are supposed to prepare list of retired employee for the purpose of finalization of pension. In this case, according to the opposite party petitioner was supposed to retire w.e.f. 1.7.1983, hence presuming the same to be true the competent authority ought to have taken initiation for preparation of final pension paper before his retirement and if it would have been done as per the resolution dated 25.7.1992 then the stand of the Government could have been understood but no initiation has been taken on the part of the authority concerned rather petitioner has been permitted to continue in service till 30.6.1985 and he has discharged his duty regularly and released salary for the said period.

Petitioner has been superannuated from service w.e.f. 30.6.1985 i.e. attaining age of 60 years, authorities at the time of making final pension has recovered a sum of Rs. 23,280/- from the pensionary benefit.

Now it is to be seen action of the authority in making deduction from the pensionary benefit a sum of Rs. 23,280/- in the angle of the ratio laid down by the Hon''ble Supreme Court in the case of State of Punjab v. Rafique Masih(White Washer) reported in 2015 Supreme Today 95 . In this case their lordship of the Hon''ble Supreme Court after taking into consideration pronouncement of the judgment of Hon''ble Supreme Court in the case of Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, (1994) 68 FLR 812 : (1994) 1 JT 574 : (1994) 1 LLJ 815 : (1994) 1 SCALE 469 : (1994) 2 SCC 521 : (1994) 1 SCR 700 : (1994) 2 SLJ 99 : (1994) 1 UJ 797 ; Sahib Ram Vs. State of Haryana and Others, (1995) 1 JT 24 : (1995) 1 SCC 18 Supp : (1994) 3 SCR 674 Supp : (1995) 1 SLJ 151 and Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, AIR 2012 SC 2951 : (2012) 135 FLR 161 : (2012) 7 JT 460 : (2013) 169 PLR 148 : (2012) 7 SCALE 376 : (2012) 8 SCC 417 : (2012) AIRSCW 4742 : (2012) 5 Supreme 418 wherein matter of recovery has wrongly been made in the facts and circumstances of the case and no proposal was laid, hence since there was conflicting view, as such the matter pending for consideration before the Hon''ble Supreme Court in the case of State of Punjab v. Rafique Masih(White Washer) (supra) was initiated upon and referred before the Larger Bench but the Larger Bench has been pleased to refer before the same Bench and Hon''ble Division Bench has been pleased to hold at paragraph-12, wherein five situations laid down wherein recovery of the employer is said to be improper under law which is being quoted below:

"(i) Recovery from employees belong 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 case where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have right fully 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 situation now case is to be assessed whether similar is coming under the parameter of the law laid down by the Hon''ble Supreme Court as indicated above:

"(i) Petitioner is retired from service on 30.6.1985 from the post of Primary School Teacher.

(ii) Petitioner was holding Class-III post

(iii) Money has been recovered from the pensionary benefits of the petitioner."

As per the guideline laid down by the Hon''ble Supreme Court referred to above when order of recovery has been made from the employee would be iniquitous or harsh or arbitrary to such an extent as would outweigh, equitable balance of the employer initiated to the employee since petitioner was allowed to continue in service for two years and according to the petitioner he was permitted to continue in view of the order passed by this Court in the case of Rama Chandra Das v. State of Orissa and others(supra)and the authorities have taken no initiation as per the resolution issued by the Finance Department dated 25.7.1992 and the petitioner has been allowed to discharge duty which the petitioner has discharged hence making recovery of sum of Rs. 23,280/- from the pensionary benefit of the petitioner who was holding Class-III post. Hence considering the view of this Court recovery will be said to be unfair on account of the fact that the petitioner was allowed to discharge his duty and he has discharged his duty continuously for two years, hence once the petitioner has discharged his duty and paid salary in view of his discharging duty directing recovery of amount will be said to be unfair and harsh on the part of the authority.

Hence in view of the ratio rendered by the Hon''ble Supreme Court in the case of State of Punjab v. Rafique Masih(White Washer)(supra) the similar action of the authorities in recovering of sum of Rs. 23,280/- cannot be said to be sustainable and as such it is illegal.

In view thereof, petitioner is entitled to get entire amount forthwith.

Accordingly, concerned opposite party is directed to release amount of Rs. 23,280/- in favour of the petitioner within four weeks from the date of receipt of copy of this order.

The writ petition is accordingly disposed of.