Bibha Rani Brahma vs The State Of Assam And 5 Ors
2021 Latest Caselaw 3323 Gua

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GAHC010064002021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/2443/2021

         BIBHA RANI BRAHMA
         W/O BIKRAM SINGH, R/O VILL. DIHIRA NO. 2, P.O. DIHIRA, DIST. BAKSA,
         ASSAM, PIN 781372



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI 781006

         2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

          FINANCE DEPTT.
          DISPUR
          GUWAHATI 781006

         3:THE DIRECTOR OF ELEMENTARY EDUCATION

          KOKRAJHAR
          BTR
          ASSAM
          P.O. AND DIST. KOKRAJHAR
          ASSAM
          PIN

         4:THE DIRECTOR OF PENSION

          ASSAM
          HOUSEFED COMPLEX
          GUWAHATI 781006

         5:THE DIST. ELEMENTARY EDUCATION OFFICER
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             BAKSA
             MUSHAPUR
             P.O. AND DIST. BAKSA
             BTC
             ASSAM
             PIN 781343

            6:THE DEPUTY INSPECTOR OF SCHOOL

             BAKSA
             MUSHALPUR
             P.O. AND DIST. BAKSA
             ASSAM
             PIN 78134

Advocate for the Petitioner   : MR. M ISLAM

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 07-12-2021

Heard Ms. P. Baruah, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned standing counsel for respondent no.1, Mr. A. Chaliha, learned standing counsel for respondent no.2, Ms. R. Boro Bora, learned standing counsel for respondent nos. 3, 5 and 6, and Mr. P. Saikia, learned Government Advocate appearing for respondent no. 4.

2) The petitioner had joined service as Assistant Teacher in Dihira Mahapur L.P. School on 01.10.1977 and she had superannuated on 31.10.2019 as Assistant Teacher of Bahadur Sing Brahma M.E. School, under the administrative control of respondent no. 5. The respondent no. 4 authority had processed the pension papers of the petitioner and by letter dated 22.05.2020, Page No.# 3/7

the respondent no. 5 was informed that the pension proposal could not be finalized because of two following deficiencies, viz., (i) joint photograph attested by Head of Department was wanting, and (ii) pay on 01.01.1989 ought to be Rs.1,515/- instead of Rs.1,555/- and that excess payment be assessed with due and drawn statement. It was also proposed that action may be taken to waive the excess drawal as per Government OM dated 14.06.2019.

3) Notice of motion was issued by order dated 09.09.2021, but the respondents have not filed any response. However, the learned standing counsel for the respondent nos. 3, 5 and 6 has produced scanned copy of letter under memo no. BEEO/Baksa/WP(C)/2443/2021/ 4030-33 dated 25.11.2021 written by the Block Elementary Education Officer, Baksa to the respondent no. 5 to inform that the Headmaster of Bahadur Sing Brahma M.E. School had re-fixed the pay of the petitioner at Rs.1,515/- instead of Rs.1,555/- with effect from 01.01.1989 by entering re-fixation rate in the service book and had re-submitted the same along with due and drawn statement of an amount of Rs.1,60,174/-. It was also informed that after receiving the service book and other documents from the Headmaster, the same was sent to the respondent no. 5 vide letter under memo no. BEEO/Baksa/Pen/ 2063-06 dated 06.11.2020. The said letter dated 25.11.2021 is retained as a part of the record.

4) Thus, from the above, it is evident that there appears to be no allegation against the petitioner to have committed any fraud or mischief whatsoever on her part which had led to over-drawal of her pay and other emoluments. It is also seen that the purported excess payment being made to the petitioner was never raised by the respondent authorities immediately after Page No.# 4/7

the petitioner was paid her first salary or any point of time thereafter and the said excess payment made to the petitioner for no fault on her part was detected by the respondent no. 4 for the first time vide letter dated 22.05.2020. Thus, it appears that the respondent no. 4 is now contemplating to recover excess payment made to the petitioner to the extent of Rs.1,60,174/-, paid during a period of about 42 years from 01.10.1977 to 31.10.2019. The Court is of the considered opinion that if in this case recovery is allowed, it would not only be arbitrary but would also be harsh and iniquitous. Hence, the ratio of the case of State of Punjab & Ors. V. Rafiq Masih (White Washer) & Ors., (2015) 4 SCC 334: 2015 STPL 2813 SC is found to be squarely applicable. It would be relevant to quote para 18 (quoted from STPL) thereof below:-

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 herein above, we may, as a ready reference, summaries the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging 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 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.

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5) It may be mentioned that pursuant to the judgment rendered by the Supreme Court of India in the herein before referred case of Rafiq Masih, the Government of Assam had notified an Office Memorandum No. Fin (EC- III).1808/2018/2 dated 14.06.2019, inter alia, providing under clause 9 thereof that - "9. However, when the waiver of recovery in the above mentioned situations is considered, Pension and Public Grievances Department is empowered with financial ceiling of Rs.1.00 lakh (Ruppees One Lakh) in each individual case where recovery is to be waived, and beyond Rs.1.00 lakh (Rupees One Lakh) the express approval of Finance Department is to be obtained."

6) Therefore, in light of the discussions made herein before, the Court is inclined to make the Rule absolute by issuing the following directions:-

a. The District Elementary Education Officer (respondent no. 5) is directed to submit a proposal to the Director, Elementary Education, Assam (respondent no. 3) to waive the excess drawal made by the petitioner, namely, Smt. Bibha Rani Brahma to the extent of Rs.1,60,174/- (Rupees One lakh sixty thousand one hundred seventy four only) as per the re-fixation of the pay of the petitioner in her service book at Rs.1,515/- instead of Rs.1,555/- with effect from 01.01.1989 as done by the Headmaster of Bahadur Sing Brahma M.E. School. The same shall be done within a period of 3 (three) weeks from the date of receipt of a certified copy of this order.

b. On receipt of such proposal, in terms of the herein before referred Office Memorandum No. Fin (EC-III).1808/2018/2 dated 14.06.2019 issued by the Principal Secretary to the Government of Assam, Finance Page No.# 6/7

Department, the Director, Elementary Education, Assam (respondent no. 3) shall move the Commissioner and Secretary to the Government of Assam, Finance Department (respondent no. 2) to consider granting of approval for waiving the excess drawal made by the petitioner to the extent of Rs.1,60,174/- (Rupees One lakh sixty thousand one hundred seventy four only). The Director, Elementary Education, Assam (respondent no. 3) shall do the needful within a period of 2 (two) weeks from the date of receipt of proposal from the District Elementary Education Officer (respondent no. 5).

c. The Commissioner and Secretary to the Government of Assam, Finance Department (respondent no. 2) shall communicate his decision to the Director of Pension, Assam (respondent no. 4) with a copy thereof to the petitioner within a period of 4 (four) weeks from the date of receipt of communication from the Director, Elementary Education, Assam (respondent no. 3).

d. The respondent authorities are further directed that in the event any of the authorities mentioned herein before in sub-para (a) to (c) above are not the competent authority, they would forward the proposal to the competent authority without any delay and in any case within 3 (three) working days along with a photocopy of this order and it is provided that such competent authority would then be bound by this order.

7) In case of any difficulty in implementing this order, the respondents are at liberty to move this Court for modification of the order within an outer period of 4 (four) weeks.

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8) The petitioner shall produce a certified copy of this order before the respondent no. 5 and provide the said authority with an e-mail address through which the respondent authorities may send information.

9) The writ petition stands allowed to the extent as indicated above, leaving the parties to bear their own cost.

JUDGE

Comparing Assistant