IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.3132 & 23606 of 2022 Ramesh Chandra Das …. Petitioner Mr. J.K. Khuntia, Advocate -versus- State of Odisha and Others …. Opposite Parties Mr. P. Mohanty, Advocate for CMC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 12.05.2026 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been filed inter alia with the following prayer:- “It is therefore prayed that this Hon'ble Court may graciously be pleased to a RULE NISI calling upon the opp. parties to show cause as to why the order dt. 18.01.2022 issued by the opp. party No.3 under Annexure - 7 and the office order dated 15.03.2016 passed by the opp. party No.3 under Annexure -9 shall not quashed and why gratuity amount and unutilized leave salary shall not be released in favour of the petitioner and if the opp. parties fail to show cause or show insufficient cause the Hon'ble Court issue a writ of certiorari in quashing the order dt. 18.01.2022 issued by the opp. party No.3 under Annexure -7 and the office order dated 15.03.2016 passed by the opp. party No. 3 under Annexure - 9 and further direction may be issued to the opp. parties to release gratuity amount and unutilized leave salary within a time stipulated by the Hon'ble Court. And pass any other order/orders, direction/ directions as would be deem fit and proper as facts and circumstances of the case.” 4. Even though the present Writ Petition has been filed challenging order dated 18.01.2022 under Annexure-7 and so also order dated 15.03.2016 passed under Annexure-9, but in course of hearing, it is fairly contended that petitioner has no objection, if his pay will be fixed in terms of order dated 18.01.2022 under Annexure-7, with due sanction of the increment and other financial benefits as due and admissible under different ORSP Rules, with release of all his retiral benefits. 4.1. It is further contended that since petitioner after getting the benefit of regularization vide order dated 22.02.2021 under Annexure-4 w.e.f. 30.07.1996, he is not getting his retiral benefits save and except, provisional pension on the face of his retirement on 30.06.2016, Opp. Party No.3 be directed to do the needful in sanctioning pension and other pensionary benefits, within a reasonable time period. 4.2. It is however contended that in view of the decision of the Hon’ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih (AIR 2015 SC 696) so followed in the case of Thomas Daniel Vs. State of Kerala & Others (2022 Live Law (SC) 438), petitioner is not liable to pay any excess payment drawn by him being a retired employee. Hon’ble Apex Court in Para 18 of the judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held as follows. xxx xxx xxx “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. But 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. xxxx xxxx xxxx xxxx “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.” 5. Learned counsel appearing for the CMC has no serious objection to the course of action proposed by the learned counsel for the petitioner. 6. Having heard learned counsel for the parties and considering the submission made, this Court while disposing the Writ Petition, directs Opp. Party No.3 to fix the pay of the petitioner in terms of order dated 18.01.2022 under Annexure-7 and by allowing the increment and D.A. as due and admissible under different ORSP Rules and submit the pension papers of the petitioner for the purpose of sanction of pension and other retiral benefits. This Court directs Opp. Party No.3 to complete the entire exercise within a period of 2(two) months from the date of receipt of this order. 6.1. On such submission of the pension papers by Opp. Party No.3, Opp. Party No.2 is directed to do the needful within a period of 2(two) months from the date of receipt of the pension papers from Opp. Party No.3. 6.2. However, placing reliance on the decisions of the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel, this Court held that no recovery can be made with regard to any excess payment drawn by the petitioner prior to his retirement on 30.06.2016, petitioner being a retired employee. 6.3. Considering the submission made by learned counsel appearing for the CMC, it is also observed that order passed so far as recovery is concerned, will not be treated as precedent and the same is passed as a Special Case. 7. Both the Writ Petitions stand disposed of. Photocopy of this order be placed in connected matter listed today. (Biraja Prasanna Satapathy) Judge Basudev