Gauhati High Court
Dipak Deb vs The State Of Assam And 4 Ors on 29 April, 2022
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GAHC010079292022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2770/2022
DIPAK DEB
S/O- LT. DHIRENDRA KUMAR DEB, R/O- VILL. PUBLIC HIGH SCHOOL
ROAD, SILCHAR, P.O. SILCHAR- 05, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT
AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY.-06.
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GHY- 06.
3:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
JURIPAR
SIX MILE
GHY.- 37.
4:THE CHIEF EXECUTIVE OFFICER
KARIMGANJ ZILLA PARISHAD
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788710.
5:THE TREASURY OFFICER
KARIMGANJ TREASURY
P.O. AND DIST.- KARIMGANJ
ASSAM
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PIN- 788710
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : SC, P AND R.D.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 29-04-2022
Heard Mr. M Islam, learned counsel for the petitioner. Also heard N K Dev Nath,
learned Standing Counsel for the respondents in PNRD Department and Mr. A Chaliha,
learned Standing Counsel for the respondents in the Finance Department of Government of
Assam.
2. The petitioner was working as a Gaon Panchayat Secretary under the Karimganj Zilla
Parishad. He was appointed in the year 1993 and retired from service on 31.12.2019. The
petitioner is aggrieved to the extent that even after the retirement, he has not been paid the
pension and other benefits. The respondents take the stand that the petitioner had
overstayed his service by a period from 01.01.2019 to 31.12.2019 and therefore, there was
an excess payment of salary for the said period. According to the respondents, the petitioner
ought to have been retired from service on 31.12.2018 but he continued his service upto
31.12.2019 and therefore, he was not entitled to the salary that was paid for the excess
period for which the he had served. As the said dispute has not been resolved, therefore, the
petitioner is not paid his pension.
3. Mr. M Islam, learned counsel for the petitioner relies upon a pronouncement of the
Supreme Court rendered in the State of Bihar & ors vs. Pandey Jagdishwar Prasad reported in
(2009) 3 SCC 117 wherein in paragraphs 23 and 24 thereof it had been held as extracted as
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"23. Without going into the question whether the appellant was justified after
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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 objection from the side of
the appellant and the appellant had got works done 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.
24. Considering the fact that there was no allegation of misrepresentation or fraud,
which could be attributed to the respondent and considering the fact that the
appellant had allowed the respondent to work and got works done by him and paid
salary, it would be unfair at this stage to deduct the said amount of salary paid to him.
Accordingly, we are in agreement with the Division Bench decision that since the
respondent was allowed to work and was paid salary for his work during the period of
two years after his actual date of retirement without raising any objection whatsoever,
no deduction could be made for that period from the retiral dues of the respondent."
4. The proposition of law laid down by the Supreme Court in the State of Bihar (supra)
goes to show that if an employee had overstayed in service and there was no allegation of
any misrepresentation or fraud by the employee resulting in such overstay, and in a situation
where the respondent authorities had allowed the petitioner to work and got the work done
by him and paid his salary, it would be unfair at a later stage to deduct the said amount of
salary paid to him.
5. As the proposition has been settled by the Supreme Court what remains now is for the
respondent authorities to arrive at a conclusion as to whether the overstay of the petitioner
was because of some misrepresentation or fraud committed by him resulting in his overstay
in service. If the respondent authorities are of the view that there was a misrepresentation or
fraud committed by the petitioner, a reasoned order thereof be passed by giving the
petitioner an opportunity of hearing. If the respondents are of the contrary view that there
was no misrepresentation or fraud committed by the petitioner, in such event the salary paid
to the petitioner for the period from 01.01.2019 upto 31.12.2019 be not recovered. In doing
so, the respondents shall also verify as to whether the petitioner had actually worked for the
said period or not. But however, the decision of recovery of the salary paid for the said period
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cannot be a reason for not paying the pension to the petitioner which he is otherwise entitled
under the law.
6. As provided by the Supreme Court in paragraph 30 of the judgment of State of Bihar
(supra), the pension shall be paid on the basis of scale of pay that the petitioner was entitled
on 31.12.2018 i.e. the date on which according to the respondents, the petitioner would have
otherwise retired from service. The pensionery benefits be processed and paid to the
petitioner within a period of six weeks from the date of receipt of certified copy of the order.
7. As regards the decision of the authorities regarding the refund of the salary paid to him
for the alleged period of overstay, the said decision be taken within a period of three months
from the date of receipt of certified copy of the order and if necessary by giving the petitioner
an opportunity of hearing.
8. Writ petition stands allowed as indicated above.
JUDGE
Comparing Assistant
