Research › Search › Judgment

Orissa High Court · body

2026 DAILYLAW 27126 (ORI)

K. Prabhakar Prusty v. State Of Odisha

2026-01-12

Biraja Prasanna Satapathy

body2026
JUDGMENT : Biraja Prasanna Satapathy, J. 1. Heard Mr. P.K. Mishra, learned counsel for the petitioner and Mr. S.P. Das, learned Addl. Standing Counsel for the State. 2. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “It is prayed, therefore that this Hon’ble Court may graciously be pleased to; (i) Admit and allow the writ petition (ii) And be pleased to quash the impugned letters vide No. 8631/T dated 02.11.2020, vide No.4466 dated 17.05.2021, order No.8820 dated 19.08.2021 and letter No. 500 dated 30.09.2021 under Annexure-5, 8, 9 and 10 respectively; (iii) And be pleased to direct the Opp. Parties to allow the petitioner to get Grade Pay of Rs.6600/- towards 3" RACP as was granted vide order No.5452/TC dated 11.04.2016 under Annexure-3; iv) And further be pleased to direct the Opp. Parties to sanction and disburse all retirement dues such as pension, Gratuity. and Commuted Value of pension as per the pension papers submitted earlier under Annexure-6 within a stipulated period of time. v) And further be pleased to direct the Opp. Parties to pay interest’ @ 18% per annum on arrear pension, Gratuity and Commuted value of pension in terms of Annexure-12 & 13 within a stipulated period of time. vi) Pass such other order (s), direction (s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner.” 3. It is contended that petitioner while continuing in service he was extended with the benefit of 1 st , 2 nd and 3 rd RACP vide order dated 11.04.2016 under Annexure- 3. While in receipt of the benefit in terms of such order, petitioner retired from his services on attaining the age of superannuation on 31.01.2020 pursuant to office order dated 29.01.2020 under Annexure-4. 3. 1. After such retirement of the petitioner, petitioner was sanctioned with the provisional pension. But while considering the sanction of final pension and other pensionary benefits as due and admissible, basing on the letter issued by Opp. Party No.3 on 02.11.2020 under Annexure-5, Opp. Party No.4 re-fixed the pay of the petitioner by withdrawing the benefit of order dated 11.04.2016 so issued under Annexure-3. But while considering the sanction of final pension and other pensionary benefits as due and admissible, basing on the letter issued by Opp. Party No.3 on 02.11.2020 under Annexure-5, Opp. Party No.4 re-fixed the pay of the petitioner by withdrawing the benefit of order dated 11.04.2016 so issued under Annexure-3. While re- deciding the pay vide order dated 19.08.2021 under Annexure-9, petitioner was not allowed the benefit of 3 rd RACP and his entitlement to get the benefit of 1 st and 2 nd RACP was also re-fixed. 3. 2. While re-fixing the benefit vide the impugned order under Annexure-9, petitioner was also directed to pay the excess amount so drawn by him on the ground of wrong extension of the benefit vide order under Annexure-3. It is also contended that the excess amount to the tune of Rs.5,37,907/- was kept withheld from the retiral gratuity in terms of order dated 30.09.2021 so issued under Annexure-10. Basing on such re-fixation of the pay, petitioner however was sanctioned with the pension and other pensionary benefits. 3. 3. Learned counsel for the petitioner contended that since the benefit extended vide order dated 11.04.2016 under Annexure-3 prior to its withdrawal with passing of the impugned order on 19.08.2021 under Annexure- 9, has been passed by Opp. Party No.4 without following the principle of natural justice and without issuing a show-cause basing on the letter issued by Opp. Party No.3 on 02.11.2020 under Annexure-5, the said order is not sustainable in the eye of law. 3. 4. In support of his submission, reliance was placed on the decisions of the Hon’ble Apex Court in the case of Menaka Gandhi vs. Union of India , AIR 1978 SC- 597, State of Orissa vs. Binapani Das , AIR 1967 SC-1269, State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1 , Dushyant Mainali Vs.Diwan Singh Bora & Another, SLP (C ) No.15191 of 2022 and Krishnadatt Awasthy Vs. State of M.P & Others, Civil Appeal NO(s) 4806 of 2011 ( 2025 INSC 126 ) . 3.5. In Menaka Gandhi (supra) , Hon’ble Supreme Court in Paragraphs-57, 58 and 61 has held as under:- “ 57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ? Is it 'right or fair or just' ? 3.5. In Menaka Gandhi (supra) , Hon’ble Supreme Court in Paragraphs-57, 58 and 61 has held as under:- “ 57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the, test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Maneka Gandhi vs Union Of India on 25 January, 1978 Indian Kanoon - http://indiankanoon.org/doc/1766147/ 57 Board of Works(2). "A long course of decision---, beginning with Dr. Bentley's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet-the justice of the common law will supply the omission of (1) [1974]2S.C.R.348. (2) [1863]14C.B.N.S.180. the legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ? 58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth- y- Gest spoke of this rule in eloquent terms in his address before the Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose %, will not be fulfilled; it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose %, will not be fulfilled; it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. 26, p. 16) And then again, in his speech in the House of Lords in Wiseman v. Borneman(1), the learned Law Lord said in words of inspired felicity: "that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches : there we may find what Byles, J., called "the justice of the common law". Thus, the soul of natural justice is fair play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Henning, M.R. in these terms in Schmidt v. Secretary of State for Home Affairs(1) :-where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural justice "as a distillate of due process of law". Vide Fontaine v. Chesterton(2). It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", ,or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?. XXX XXX XXX 61. This Court, speaking through Hegde, J., in ,I. K. Kraipak's case quoted with approval the above passage from the judgment of Lord Parker, C.J., and proceeded to add : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it-Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the, application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice One fails to see why those rules should be made inapplicable, to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice One fails to see why those rules should be made inapplicable, to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-.judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case." This view was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O. South Khari v. Ram Sanehi Singh(1). The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. 3.6. In State of Orissa vs. Binapani Das , Hon’ble Supreme Court in Paragraph-12 has held as under:- “12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State.” 3.7. Hon’ble Apex Court in the case of Rajesh Agarwal in Para 41 & 42 has held as follows:- “ 41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269 ], a two- Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. This Court further held that an administrative action which involves civil consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9) “9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” 42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ] , a seven-Judge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.” 3.8. Hon’ble Apex Court in the case of Dushyant Mainali , in para-5 of the said judgment held as follows: 5. There is no necessity to reiterate that even the Courts, including a highest court of the Country, are bound by principle of natural justice. Nobody can be condemned unheard. 3.9. Hon’ble Apex Court in the case of Krishnadatt Awasthy in para-68 of the said judgment held as follows: 68. The principle of audi alteram partem is the cornerstone of justice, ensuring that no person is condemned unheard. This principle transforms justice from a mere technical formality into a humane pursuit. It safeguards against arbitrary decision-making, and is needed more so in cases of unequal power dynamics.” 3. 10. It is also contended that since petitioner without any fault of his own got the benefit in terms of order dated 11.04.2016, till the impugned order was so passed on 19.08.2021, no recovery can be made 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. 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. Rafiq Masih, AIR 2015 SC 696 so followed in the case of Thomas Daniel Vs. State of Kerala & Others, 2022 Live Law (SC) 438. 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. “ 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. (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.” 4. Mr. S.P. Das, learned Addl. Standing Counsel on the other hand while did not dispute the extension of the benefit of 1 st , 2 nd and 3 rd RACP in favour of the petitioner vide office order dated 11.04.2016 under Annexure-3, but contended that such extension of the benefit when was objected to by Opp. Party No.3 vide his letter dated 02.11.2020 under Annexure-5, Opp. Party No.4 while re-considering the issue, found that petitioner is not eligible and entitled to get the benefit of 3 rd RACP and the benefit of 1 st and 2 nd RACP was also re-fixed with passing of a fresh order on 19.08.2021 under Annexure-9. 4. 1. After passing of such order, petitioner when was found that he has received a sum of Rs.5,37,907/- in excess towards such benefit, order under Annexure-10 was issued and such an amount has been withheld from the retiral gratuity of the petitioner. 4. 2. It is accordingly contended that since Opp. Party No.4 basing on the letter issued by Opp. Party No.3 under Annexure-5, found that petitioner is not eligible and entitled to get the benefit so extended vide office order dated 11.04.2016 under Annexure-3, the order under Annxure-9 was passed. It is accordingly contended that no illegality or irregularity can be found with the impugned order. 4. 3. A further submission was also made that basing on such re-fixation of the pay, petitioner has already been sanctioned with pension and other pensionary benefits as due and admissible, which is not disputed. 5. It is accordingly contended that no illegality or irregularity can be found with the impugned order. 4. 3. A further submission was also made that basing on such re-fixation of the pay, petitioner has already been sanctioned with pension and other pensionary benefits as due and admissible, which is not disputed. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner while in service, was extended with the benefit of 1 st , 2 nd and 3 rd RACP vide order dated 11.04.2016 under Annexure-3. However, basing on the letter issued by Opp. Party No.3 on 02.11.2020 under Annexure-5 and on the face of the reply made by Opp. Party No.4 under Annexure-7, the impugned order under Annexure-9 was passed by Opp. Party No.4 on 19.08.2021. 5. 1. This Court after going through the materials available on record, found that prior to passing of a fresh order by Opp. Party No.4 on 19.08.2021 under Annexure-9 basing on Annexure-5, petitioner was never show-caused nor principle of natural justice was followed. Placing reliance on the decisions as cited (supra), it is the view of this Court that such order could not have been passed without following the principle of natural justice. 5. 2. Therefore, this Court on the said ground, is inclined to quash order dated 19.08.2021 so issued by Opp. Party No.4 under Annexure-9. While quashing the said order, this Court directs Opp. Party No.4 to take a fresh decision with regard to entitlement of the petitioner to get the benefit of 1 st , 2 nd and 3 rd RACP, so extended vide order under Annexure-3 and by giving due opportunity of hearing to the petitioner with issuance of a proper show-cause. 5. 3. This Court directs O.P. No.4 to complete the entire exercise within a period of 4 (four) months from the date of receipt of this order. While taking such a decision, relevancy and effect of order passed by the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel so cited (supra) be taken into consideration with regard to recovery of excess payment if any. 5. 4. While taking such a decision, relevancy and effect of order passed by the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel so cited (supra) be taken into consideration with regard to recovery of excess payment if any. 5. 4. Petitioner be permitted to file his reply after being issued with the show-cause and petitioner is also permitted to provide a copy of the order passed by the Hon’ble Apex Court in the case of Rafiq Masih so followed in the case of Thomas Daniel before Opp. Party No.4 for compliance. 6. The Writ Petition stands disposed of accordingly.