Gauhati High Court
WP(C)/4004/2020 on 1 April, 2025
Page No.# 1/17
GAHC010136372020
undefined
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 4004/2020
Dilip Kumar Pathak
S/O Late Subodh Chandra Pathak, R/O Dalahati, P.O.-Barpeta,
P.S.-Barpeta, Dist-Barpeta, Pin-781301
..............................Petitioner
-VERSUS-
1. The State of Assam and 8 Ors.
Represented by the Commissioner and Secretary to the
Government of Assam, Panchayat and Rural Development
Department, Dispur, Guwahati-781006.
2. The Deputy Secretary to the Government Of Assam
Panachayat and Rural Development Department
Dispur, Guwahati-781006.
3.The Joint Secretary to the Government Of Assam
Panchayat and Rural Development Department
Dispur, Guwahati-781006.
Page No.# 2/17
4.The Joint Director
Panchayat and Rural Department
Panjabari Road, Juripar, Guwahati-781037
Assam.
5.The Additional Chief Secretary To The Government Of Assam
Panchayat and Rural Development Deptt.
Assam, Dispur,Guwahati-781006.
6.The Additional Chief Secretary To The Government Of Assam
Finance Department, Assam Sachibalaya
Dispur, Guwahati-781006.
7.The Accountant General (A And E)
Assam, Maidamgaon, Beltola
Guwahati, Pin-781029.
8.The Senior Accounts Officer
Office Of The Accountant General ( A And E)
Assam, Maidamgaon, Beltola
Guwahati-781029.
9.The Treasury Officer
Barpeta, Muslimpatty
Barpeta Town, Assam-78130
.......................Respondents
Advocates for the Petitioners: Mr. N.N.B. Choudhury, Advocate.
Advocates for the respondents: Mr. K. Konwar, Addl. Advocate General, Assam.
Page No.# 3/17 Mr. P. Nayak, SC, Finance.
Mr. C. Baruah, Accountant General, Assam.
Date of hearing: 20.03.2025
Date of Judgment: 01.04.2025
BEFORE
HON'BLE MR. JUSTICE KARDAK ETE
JUDGMENT & ORDER (CAV)
Heard Mr. N.N.B Choudhury, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Addl. Advocate General, Assam, for respondents No. 1-5, Mr. P. Nayak, learned Standing counsel, Finance, for respondents No. 6 & 9 and Mr. C. Baruah, learned Standing Counsel for the Accountant General, for 7 & 8.
2. The challenge made in this writ petition is to the order No.PRD- 12/180/2017-PRD(B)/75 dated 20.04.2018 issued by the Commissioner & Secretary to the Govt. of Assam, Panchayat and Rural Development Department, by which, an amount of Rs.7,12,342/-(Rupees Seven Lakh Twelve Thousand Three Hundred and Forty Two) only is sought to be recovered from the petitioner on account of payment of pay and allowances drawn during over stay for the period 31.01.2016 to 28.02.2017 from D.C.R.G. The petitioner also prays for a direction to pay/release regular pension and other retirement benefits to the petitioner without making any recovery.
3. The case of the petitioner, briefly put, is that he was initially appointed as Extension Officer in the Panchayat and Rural Development Department on 01.11.1985 and was promoted to the post of Block Development Officer (B.D.O) vide order dated 28.07.2014 in Srijangram Development Block. The petitioner Page No.# 4/17 was posted in different places of posting and finally was posted at Rangapara Development Block, Sonitpur and he has retired on attaining the age of superannuation on 28.02.2017. The date of birth of the petitioner as per record is 18.01.1956, which is reflected in the service book.
4. The authority published a final Gradation List vide Notification dated 14.12.2015 in respect of the Block Development Officers, serving under the Panchayat and Rural Development Department, Government of Assam wherein, the date of birth of the petitioner was recorded as 01.03.1957 instead of 18.01.1956 by the respondent authorities.
5. It is the contention of the petitioner that he ought to have retired on 31.01.2016, however, he was allowed to continue in the service for an additional 13 months for no fault of his till 28.02.2017. Since, the petitioner has been allowed to continue in the service for an additional 13 months and released on 28.02.2017 on retirement, the pension of the petitioner should be fixed taking into account his date of actual retirement i.e. 28.02.2017 and no recovery can be made for the pay and allowances drawn during the aforesaid period.
6. Mr. N.N.B. Choudhury, learned counsel for the petitioner while referring to the letters dated 02.01.2016 and 25.01.2016 submits that, since the actual date of retirement of the petitioner was on 31.01.2016, as the date of birth of the petitioner is 18.01.1956, the petitioner had informed the respondent authority vide letters dated 02.01.2016 and 25.01.2016 clearly informing that he was due for retirement on attaining the age of superannuation. However, the respondent department has failed to serve with notice of retirement. He submits that verbally,the respondent authority informed the petitioner that he would be retired from service, on the basis of the date of birth recorded in the Gradation list, which is 01.03.1957 and therefore, he would be released on28.02.2017, Page No.# 5/17 accordingly the petitioner was released on 28.02.2017.
7. Mr. N.N.B. Choudhury, learned counsel, submits that, although, the petitioner was to retire on 31.01.2016 as per his actual date of birth, he was allowed to continue till 28.02.2017, which was not the fault of the petitioner but due to the fault of the respondent authority who did not take any steps to correct the date of birth of the petitioner in the Gradation list. He refers to the affidavit-in-opposition filed by the respondent authorities to show that the mistake in the entry of wrong date of birth leading to wrong date of retirement was inadvertent human error, which clearly shows the admission of the respondent authorities that the continuance of the petitioner beyond his actual date of retirement was due to the fault of the respondent authorities and not the fault of the petitioner. Therefore, he submits that the decision to recover pay and allowances w.e.f. 31.01.2016 to 28.02.2017 amounting to Rs. 7,12,342/- drawn by the petitioner, by the respondent authorities is illegal, as the service of the petitioner during the above period was utilised by the authorities and therefore, he cannot be denied of legitimate salary to which he was entitled. In view of the above, the impugned orderdated 20.04.2018 issued by the Commissioner and Secretary to the Govt. of Assam, Panchayat and Rural Development Department and other consequential orders are liable to be set aside and quashed and the respondent authorities may be directed to pay the pensionary benefits and other entitlement to the petitioner.
8. Mr. N.N.B. Choudhury, learned counsel for the petitioner, in support of his submissions, has placed reliance upon the following judgments:-
(i). State of Punjab and others Vs. RafiqMasih (White Washer) and others, reported in (2015) 4 SCC 334, Page No.# 6/17
(ii). DurgeswarDutta Vs. The State of Assam and 4 Ors.WP(C) 7355/2019 decided on 27.09.2021,
(iii). Jagadish Kumar Deka Vs. State of Assam, reported in 2021 SCC Online Gau 1977/2021 5 GLT 61.
9. Mr. K. Konwar,learned Addl. Advocate General, Assam, on the other hand, submits that as per record, the date of birth of the petitioner is 18.01.1956 and he was to retire from service on attaining the age of superannuation on 31.01.2016. But, due to inadvertent error, his date of retirement was recorded as 28.02.2017 instead of 31.01.2016 in the gradation list of Block Development Officers. Therefore, the delay in releasing him from service is unintentional and only because of wrong information available in the department as well as the communication gap for which the competent authority was unaware of his actual date of retirement. After the retirement of the petitioner on 28.02.2017, it has come to the notice of the respondent authorities that the petitioner had overstayed for 13 months in service from 01.02.2016 to 28.02.2017. Therefore, authorities have taken a decision to recover the amount drawn by the petitioner as pay and allowances for the aforesaid period. He submits that it is true that no retirement notice was served upon the petitioner but the petitioner has admittedly continued in the service even after his actual date of superannuation. Admittedly, the date of retirement of the petitioner is 31.01.2016 and knowing fully, the petitioner has continued in the service till 28.02.2017. The petitioner has failed to inform the respondent authorities for correction of wrong mention of his date of birth in the Gradation list, as admittedly the date of birth of the petitioner is 18.01.1956, which is also recorded in the service book. He further submits that, although, it appears that the mistake in the entry of wrong date of birth, led to the wrong date of retirement, which was inadvertent human error, Page No.# 7/17 the facts that the petitioner was to retire on 31.01.2016 clearly evidenced that the petitioner has over stayed for 13 months. Therefore, the respondent authorities are within its power to recover the pay and allowances drawn by the petitioner, on account of his over stay in the service and as such, the writ petition is liable to be dismissed.
10. Mr. C. Baruah, learned Standing Counsel for the Accountant General, while referring to affidavit-in-opposition, submits that the office of the Principal Accountant General (A&E), Assam being the order implementing agency of the State authorities, the order dated 20.04.2018 issued by the Commissioner and Secretary to the Govt. of Assam, Panchayat and Rural Development Department was implementedand accordingly the office vide authority dated 28.02.2020 issued DCRG directing the Treasury Officer, Barpeta to recover Rs.7,00,000/- from his DCRG benefits and another amount of Rs.12,342/- from his arrear and future relief, since the DDO of the petitioner has specifically mentioned in the Pension Form No. 19 that the total overpayment of pay and allowance including leave salary was Rs.7,12,342/-. Further, the aforesaid recovery order was issued in terms of the undertaking made by the petitioner that he has no objection to refund or recover the excess withdrawal, if any, in case of pay and allowances or from his provisional pension, DCRG or Arrear Pay and Allowance.
11. Mr. C. Baruah, learned Standing Counsel, submits that it appears that the petitioner was aware about his date of birth and date of retirement and being a Gazetted Officer he should also be aware about Rule 95 of Assam Services (Pension) Rules, 1969, wherein it is provided that if no intimation is issued to the officer,same shall not in any way change his date of retirement and shall not confer on the Government servant any right to remain in service beyond the date on which he is required to retire. Therefore, the petitioner should not have Page No.# 8/17 continued his service for an additional 13 months from the date of his actual retirement i.e. 31.01.2016.
12. Mr. C. Baruah, learned Standing Counsel, submits that the office of the Accountant General has already authorized final pension to the petitioner vide PPO No. 901211263473 dated 28.02.2020 where his monthly pension with effect from 01.02.2016 to 31.03.2016 is fixed at Rs.10,980/- and his revised pension w.e.f 01.04.2016 onwards at Rs.27,240/- per month. Moreover, no amount shall be deducted from his monthly pension. The over withdrawal amount will be recovered from his DCRG and unrecovered amount from arrear and future relief.
13. Mr. P. Nayak, learned Standing Counsel for the Finance Department, while endorsing the submissions made by the learned counsel for the respondents submits that admittedly, the petitioner has over stayed for 13 months in the service, as the date of birth of the petitioner is 18.01.1956 and he was to retire on 31.01.2016. Having knowing fully over stayed for 13 months and illegally drawn the pay and allowances, the petitioner is liable to refund the said amount. Therefore, the claim of the petitioner in this writ petition is liable to be rejected.
14. The learned counsel for the respondents, in support of their submissions,has placed reliance on the following judgments:-
(i). Radha Kishun Vs. Union of India and Ors. reported in (1997) 9 SCC 239,
(ii). State of Bihar and Ors. Vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117.
15. I have considered the submissions of the learned counsel for the parties and perused the materials available on record.
Page No.# 9/17
16. The decision of the respondent authorities to recover an amount of Rs.7,12,342/-(Rupees Seven Lakh Twelve Thousand Three Hundred and Forty Two Only) as pay and allowances for the period from 31.01.2016 to 28.02.2017 on account of over stay in the service as Block Development Officer, is the issue to be determined, as the ground for challenge is to the effect that the over stay of 13 months in the service by the petitioner is not due to his fault rather the fault of the respondent authorities for not serving the retirement notice.
17. Admittedly, the date of birth of the petitioner is 18.01.1956, which is recorded in his service book. The petitioner was to be retired on 31.01.2016. As per the Gradation list of Block Development Officer, the date of birth of the petitioner is shown to be recorded as 01.03.1957.
18. It is noticed that there was no specific allegation of fraud or manipulation of the date of birth by the petitioner. Although, the petitioner is well aware of his date of birth and the consequential date of retirement, he had rendered his service for a period of 13 months beyond the retirement as no notice was served to the petitioner releasing him from the service on attaining the age of superannuation. Therefore, in my considered view although, no fault or misrepresentation could be specifically attributed to the petitioner, in view of the knowledge of the petitioner of his date of birth and his date of retirement on attaining the age of superannuation, fault cannot be equally and fully attributable to the respondent authorities either, but certainly some amount of negligence and lapse could be attributable to the respondent authorities as the justification of the respondent authorities is of inadvertent human error.
19. The petitioner claimed to have intimated the respondent authorities before the actual date of retirement on 31.01.2016, however, there is nothing on record to show that such intimations by the petitioners were in fact Page No.# 10/17 acknowledged by the respondent authorities and at the same time there is no specific denial supported by records by the respondent authorities
20. It is not the case of the respondent that the petitioner had fraudulently entered another date of birth in his service book. In fact, such discrepancy should have come to the notice of the authorities during the course of service of the petitioner, and not after he had attained the age of superannuation and on the expiry of the date recorded in the service book. None of the officials had noticed during his service period when the service book was required to be inspected by the officials which shows certain amount of negligence and lapses on the part of the respondent authorities.
21. A reference may be made to the case of Pandey Jagdishwar Prasad (supra). In that case, the date of birth of the incumbent was as per his matriculation certificate and was also recorded in his service book, however, there was another date of birth in the service book, which was made on the basis of an affidavit furnished by the incumbent and the earlier date of birth was not deleted from the service book. The incumbent was accordingly charged with over stay. The Hon'ble Supreme Court in the facts of that case had interfered with the decision to recover the pay and allowances of the incumbent on account of over stay in the service.
22. It is clearly reflected that the date of birth of the petitioner as per the certificate is 18.01.1956, which has been duly recorded in his service book. It is only in the Gradation list, the date of birth is shown as 31.03.1957.
23. It appears that the respondent authority has allowed the petitioner to serve another 13 months basing on the date of birth as shown in the Gradation list. The petitioner was well aware that his date of birth is 18.01.1956, which Page No.# 11/17 was recorded in the service book. Thus, equally the petitioner has the duty to inform the respondent authorities of his actual date of birth, which has been recorded in the service book diligently ehich he has shown to have informed vide his letters dated 02.01.2016 and 25.01.2016
24. Now, this court would refer and discuss the case laws relied on by the learned counsel for the parties.
25. In the case of Rafiq Masih (White Washer) (Supra), the Hon'be Supreme Court has held that 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. One of the situation, which the Hon'ble Supreme Court had envisaged where recovery would be impermissible is that 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.
26. In Durgeswar Dutta (Supra), this court has observed that after the authoritative pronouncement by the Hon'ble Supreme Court in the case of Rafiq Masih, there is hardly any scope to take different view as the cases met the criteria laid down in paragraph 18 of the judgment and held that the action of recovery from the pension of the petitioner who are Grade-III employees is wholly iniquitous and are squarely covered by the guidelines laid down by the Hon'bleSupreme Court in the case Rafiq Masih (supra).
27. In Jagadish Kumar Deka (Supra), this court has considered the case of Pandey Jagdishwar Prasad (Supra), wherein in that case, the incumbents date of birth was as per his matriculation certificate and was recorded in the Service Page No.# 12/17 Book, however there was another date of birth in the Service Book which was made on the basis of an affidavit furnished by the incumbent but the earlier date of birth was not deleted from the Service Book. The incumbent was accordingly charged with overstay. The Hon'ble Supreme Court had interfered with the said decision. The relevant part of the Judgment in Pandey Jagdishwar Prasad (Supra), are extracted herein below-
"16. Moreover, for the sake of argument, even if we consider that the respondenthad fraudulently entered another date of birth in his service book, as had been alleged, it shouldhave come to the notice of the authorities during his course of service, and not after he had attainedthe age of superannuation after the expiry of the date mentioned in the service book which wasbased on the affidavit of the respondent. To the contrary, none of the officials responsible hadnoticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence andlapses on the part of the authorities concerned and in our view, the respondent cannot be heldresponsible to work beyond his date of birth as mentioned in the matriculation certificate whenadmittedly in the service book after affidavit, some other date of birth was also evident.
19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at allthe respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be affected from the retiral dues in the monetary benefit available to the employee.
24. Without going into the question whether the appellant was justified after Page No.# 13/17 completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during thatperiod without raising any objection from the side of the appellant and the appellant had got worksdone by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. Considering the fact that there was no allegation of misrepresentation or fraud, which could beattributed to the respondent and considering the fact that the appellant had allowed the respondentto work and got works done by him and paid salary, it would be unfair at this stage to deduct thesaid amount of salary paid to him. Accordingly, we are in agreement with the Division Benchdecision that since the respondent was allowed to work and was paid salary for his work during theperiod of two years after his actual date of retirement without raising any objection whatsoever, nodeduction could be made for that period from the retiral dues of the respondent.
29. It should also be kept in mind that the respondent might have expected that second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any malafide intentions to continue his service, beyond his date of his retirement, we are of the view that the decision in the case of Radha Kishun vs. Union of India and Ors. (Supra), would not be applicable in the facts of thepresent case."
28. This court, having considered the above case has observed and held as under:-
"28. Thus, considering the facts and circumstances and the law laid down by the Hon'ble Supreme Court, this Court is of the opinion that the petitioners cannot be faulted with in the chain of event which laid their overstay in service for the reasons cited in paragraph 18 above. As a consequence thereof, the Page No.# 14/17 impugned action in purporting to recover the salaries for the period of overstay, the details of which is already recorded in the Judgment is interfered with and accordingly set aside. As regards the claim for pension, by following the guidelines of the Hon'ble Supreme Court in the case of Pandey Jagdishwar Prasad (Supra) the petitioners would be entitled to fixation of retiral benefits as on the date of their correct dates of birth with a further clause that for the period of overstay, only the notional benefit would be entitled to as the petitioners' entitlement for salaries for the said period has been upheld."
29. In Radha Kishun (Supra), the Honb'le Supreme court has observedas under:-
"3. The learned counsel for the petitioner contends that since the petitioner has worked during theperiod, he is entitled to the payment of the pay and allowances from 1.6.1991 to 26.6.1994 and thathe is also entitled to the payment of Provisional Pension, Death-cum-retirement gratuity, leave encashment commutation of pension amount, GPF money and the amount deposit under CGHS onthe plea that he retired from service on May 31, 1994. We are aghast to notice the boldness withwhich it is claimed that he entitled to all the benefits with effect from the above said date when admittedly he was to retire on May 31, 1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the Establishment in the concerned section for not taking anyaction to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, hehas no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in theactiontaken by the authorities in refusing to grant the benefits."
30. The case of Radha Kishun (Supra), has been distinguished by the Hon'ble Supreme court in Pandey Jagdishwar Prasad (Supra) and has held in that case, Page No.# 15/17 that there was no dispute as to the date of retirement of the appellant in that appeal, as there was no controversy in the date of birth of that appellant. There was only one date of birth mentioned, and he had not retired on the basis of his date of birth so entered. Therefore, he had wrongly extended his service beyond the date of his superannuation. But in the present case, there were two dates of birth recorded in the service book of the respondent. Therefore, there was a clear confusion in the mind of the respondent as to whether the appellant had accepted his corrected date of birth as entered in his service book when admittedly authorities concerned did not serve any notice of retirement on the basis of the initial entry of date of birth in his service book. It should also be kept in mind that the respondent might have expected that second date of birth shown in theservice book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any malafide intentions tocontinue his service, beyond his date of his retirement. Therefore, the case was held to be not applicable in the facts and circumstances of the case.
31. On careful consideration of the above case laws, it is seen that that each case would depend upon the attending facts and circumstances of that case. As seen above, the case of Radha Kishun (supra) has been distinguished in Pandey Jagdishwar Prasad (supra). The Hon'ble Supreme Court has held that 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. One of the situation, which the Hon'ble Supreme Court had envisaged where recovery would be impermissible is that where the Court arrives at the conclusion, that recovery if made from the Page No.# 16/17 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.
32. Reverting back to present case, there was no specific allegation of fraud or manipulation of the date of birth by the petitioner. Although, the petitioner is well aware of his date of birth and the consequential date of retirement, he had rendered his service for a period of 13 months beyond the retirement as no notice was served to the petitioner releasing him from the service on attaining the age of superannuation. Therefore, although, no fault or misrepresentation could be specifically attributed to the petitioner, in view of the knowledge of the petitioner of his date of birth and his date of retirement on attaining the age of superannuation, no fault can be equally and fully attributable to the respondent authorities either. The petitioner had intimated the respondent authorities before the actual date of retirement on 31.01.2016, however, since the petitioner had worked during that period of 13 months without raising any objection from the side of the respondent authorities and got works done by the respondent, it may not be fair to allow deduction from his retiral benefits the amount received by him as pay and allowances after his actual date of retirement.
33. Having considered the fact that there was no allegation of fraud or misrepresentation, which could be attributed to the petitioner, I am of the view that it would be unfair at this stage to deduct the said amount of salary paid to the petitioner. Accordingly, no deduction could be made for that period of 13 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the period of 13 months after his actual date of retirement without raising any objection by the respondents.
34. In view of the above discussion and observations, I am of the considered view that it would be unfair to deduct the amount of Rs.7,12,342/-(Rupees Page No.# 17/17 Seven Lakh Twelve Thousand Three Hundred and Forty Two) only, the amount of Pay & Allowances paid to the petitioner. Thus, no deduction could be made for the period of 13 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the period of 13 months after his actual date of retirement without raising any objection by the respondents. Accordingly, the decision to recover and consequential orders for recovery of an amount Rs.7,12,342/-(Rupees Seven Lakh Twelve Thousand Three Hundred and Forty Two Only) for the pay and allowances avail by the petitioner for 13 months on account of his over stay in the service are hereby set aside and quashed.
35. However, considering that the actual date of retirement of the petitioner was on 31.01.2016, his pensionary and other entitlements be calculated taking the retirement date as on 31.01.2016.
36. Writ petition stands disposed of, accordingly. No order as to costs.
JUDGE Comparing Assistant