Gauhati High Court
Sandhya Rani Biswas vs The State Of Assam And 7 Ors on 11 August, 2022
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GAHC010271692018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8550/2018
SANDHYA RANI BISWAS
D/O HARISH CHANDRA BISWAS
R/O GOPINATH BORDOLOI ROAD,
P.S. AND DIST. NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION DEPARTMENT, DISPUR, GUWAHATI -6.
2:THE SECRETARY FINANCE DEPARTMENT
GOVT. OF ASSAM
DISPUR, GUWAHATI -6.
3:THE SECONDARY EDUCATION
ASSAM, KAHILIPARA
GUWAHATI -19.
4:THE INSPECTOR OF SCHOOLS
NOWGAON DISTRICT CIRCLE
DIST. NAGAON, ASSAM, PIN - 782002.
5:THE HEADMISTRESS
NAGAON BENGALI GIRLS HIGH SCHOOL
NAGAON, ASSAM, PIN - 782002
6:THE HEADMISTRESS
BENGALI GIRLS L.P. SCHOOL
NAGAON, ASSAM, PIN - 782002.
7:THE DIRECTOR OF PENSION
GOVT. OF ASSAM
HOUSEFED COMPLEX
DISPUR, GUWAHATI -6.
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8:THE TREASURY OFFICER
NAGAON TREASURY
DIST. NAGAON
ASSAM, PIN - 78200
Advocate for the Petitioner : MR S SARMA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR
ORDER
11th August, 2022
Heard Mr. S. Sarma, learned counsel for the petitioner. Also heard Mr. S.M.T.
Chistie, learned standing counsel, Secondary Education Department, for
respondent Nos. 1, 3 and 4, Mr. A. Chaliha, learned standing counsel, Finance
Department, for respondent No. 2 and Mr. S.R. Baruah, learned standing counsel
for the respondent No. 7.
2. By this writ petition, the petitioner is praying for change of Date of Birth in
her Service Book and is aggrieved due to her retirement from service with effect
from 31-01-2010 and also the letter dated 21-10-2017, written by the Finance and
Account Officer, Office of the Director of Pension, Assam and addressed to the
Treasure Officer, Nagaon Treasury for excess recovery from the petitioner's
pensionery benefits.
3. At the outset, the learned counsel for the petitioner submits that he is not
pressing with regard to the change of date of birth of the petitioner as well as her
retirement made on 31-07-2010. He submits that the petitioner is only pressing
against the impugned letter dated 21-10-2017 by which the office of the Director
of Pension, Assam, intimated the Treasury Officer, Nagaon Treasury, that recovery
of Rs.5,05,879/- from her pensionery benefits due to equilisation of pay on 01-01-
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1996 by increasing the pay from Rs.4390/- to Rs.5725/- as no approval of the
Finance Department, Government of Assam, was taken at that relevant point of
time.
4. The matter with regard to recovery of excess amount after retirement of an
employee is already settled by the Hon'ble Supreme Court in the case of State of
Punjab and others vs Rafiq Masih (White Washer) and others, reported in (2015)
4 SCC 334. The relevant portion of the said judgment reads as under:
"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, summarise 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."
5. It is undisputed that the petitioner was appointed on 31-01-1978 to act as
Assistant Teacher in the Bengali Girls High School, Nowgang. Thereafter, by the
letter dated 29-06-2010, written by the Headmistress & Secretary Nagaon Bengali
Girls' High School, Nagaon, addressed to the Inspector of Schools, Nagaon District
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Circle, Nagaon, informed that the petitioner is going to retire from service after
attaining the age of 60 years, on 20-07-2010 and she is to retire in the afternoon
of 31-07-2010. The petitioner, thereafter, superannuated on attaining the age of 60
years on 31-07-2010 and thereafter, the process for payment of pensionery benefit
started.
6. As she was not paid her pensionery benefits, she approached this Court by
way of WP(C) No. 1351/2013. While the writ petition was pending, the matter was
referred to the Lok Adalat. The Lok Adalat, by an Award, settled the dispute
directing that the Department of Education shall forward the required proposal
within 15-01-2015, the Director of Pension shall issue the Pension Payment Order
(PPO) within 31-03-2015. As regards gratuity, the same shall also be paid to the
petitioner by the Department within 15-01-2015.
7. Thereafter, the retirement benefits of the petitioner was given amounting to
a sum of Rs.10,79,253/- against the G.P.F., G.I.S, Leave Encashment Benefit and
provisional pension from August, 2010 to September, 2014. However, the gratuity is
yet to be paid to the petitioner and the regular pension of the petitioner is also yet
to be paid. In the meantime, the Finance and Accounts Officer, Government of
Assam, wrote the impugned letter dated 21-10-2017 addressed to the Treasury
Officer for recovery of the excess amount drawn by the petitioner with regard to
the equalization of pay as on 01-01-1996, increasing the amount from Rs.4390/- to
Rs.5725/-.
8. It is to be noted that the petitioner retired from service on 31-07-2010 and
the said letter of recovery of excess payment was written only in the year 2017,
i.e., 21-10-2017. Seven years had elapsed after the retirement of the petitioner
and, therefore, in terms of the ratio laid down by the Supreme Court in Rafiq Masih
(supra), no recovery can be made from the petitioner.
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9. In that view of the matter, the impugned letter dated 21-10-2017, written by
the Finance and Accounts Officer, office of the Director of Pension, Assam to the
Treasury Officer, Nagaon Treasury, Nagaon is set aside and quashed.
10. The respondents are accordingly directed to pay the pension to the petitioner
in terms of the last pay drawn as well as the gratuity amount at the earliest, but
not later than two months from the date of receipt of the copy of this order.
Writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
