Smti. Kiron Raja vs The State Of Assam And 5 Ors
2022 Latest Caselaw 971 Gua

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GAHC010052122022




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

                          Case No. : WP(C)/1935/2022

         SMTI. KIRON RAJA
         W/O- PABAN KUMAR SARMA, R/O- SECTOR-I, LANE 5A, BORDOLOI
         NAGAR, P.O. TINSUKIA, ASSAM, PIN- 786125.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, FINANCE DEPARTMENT, ASSAM, DISPUR,
         GUWAHATI-781006.

         2:THE ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI
         ASSAM
          PIN- 781029.

         3:COMMISSIONER OF TAXES
         ASSAM
          KAR BHAWAN
          G.S. ROAD
          GUWAHATI-781006.

         4:DEPUTY COMMISSIONER OF TAXES

          TINSUKIA ZONE
          TINSUKIA
          PARBATIA
          TINSUKIA
          ASSAM
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             PIN- 786125.

             5:THE TREASURY OFFICER
             TINSUKIA
             ASSAM

             6:SUPERINTENDENT OF TAXES (RECOVERY)

             TINSUKIA
             ASSAM
             PIN- 786125

Advocate for the Petitioner   : MR R SENSUA

Advocate for the Respondent : SC, TAXES




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

21.03.2022

Heard D. Borah, learned counsel for the petitioner, who submits that the petitioner retired from service on 30.11.2017 as a Nazir from the Office of the Superintendent of Taxes (Recovery), Tinsukia. The petitioner applied for grant of pension. However, the Accounts Officer, Office of the Accountant General (A&E), Assam vide his letter no. Pen- 6 /AK/042972/FIN/ 305/2017/985 dated 01.01.2018 has requested the Superintendent of Taxes (Recovery), Tinsukia, to recover the overdrawal of pay and allowances including leave encashment from the pensionary benefits of the petitioner.

2. The petitioner's counsel submits that the Superintendent of Taxes (Recovery), Tinsukia has rectified the Service Book of the petitioner and Page No.# 3/4

prepared a Statement of the excess salary drawn by the petitioner amounting to Rs.2,97,919/-. He submits that as there was no fraud or misrepresentation on the part of the petitioner, in the making of the wrong fixation of pay during the period from 01.01.1996 to 01.02.1998, the respondents should not be allowed to recover the overdrawn pay and allowances, in terms of the judgments of the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 and in the case of Shyam Babu Verma & Others vs. Union of India & Others, reported in (1994) 2 SCC 521.

3. Mr. R. Borpujari, learned counsel appearing for the respondent nos.1, 3, 4, 5 & 6 and Mr. R.K. Talukdar, learned counsel appearing for the respondent no.2 submit that the judgments referred to by the petitioner's counsel seem to apply to the present case.

4. I have heard the learned counsels for the parties.

5. The letter dated 01.01.2018 issued by the Accounts Officer and the order dated 16.08.2019 issued by the Superintendent of Taxes (Recovery), Tinsukia show that the petitioner has been overpaid his pay and allowances w.e.f. 01.01.1996 to 01.02.1998 due to wrong fixation of pay. There is nothing in the above letter and order to show that there was any fraud or misrepresentation on the part of the petitioner in the making of or release of the over-drawn pay and allowances.

6. In the case of Rafiq Masih (White Washer) (supra), the Apex Court Page No.# 4/4

has held that it would be impermissible for an employer to recover overdrawn pay and allowances given to Class-III and Class-IV employees. In the case of the Shyam Babu Verma (supra), the Apex Court has held that the employer cannot be allowed to recover any excess amount, which has already been paid to the appellants who had received a higher scale than what they were entitled to, due to no fault of theirs. In the present case also, there is nothing to show that there was any fault or misrepresentation on the part of the petitioner, in the making of the wrong fixation of pay, due to which the petitioner had been given excess pay for 2 years from 1996 to 1998.

7. In view of the judgments of the Apex Court referred to above, this Court is of the view that the State respondents cannot be allowed to recover the excess pay and allowances given to the petitioner. Further, the post of Nazir is a Grade-III post. Consequently the decision of the State respondents to recover excess over-drawn pay and allowances vide the letter dated 01.01.2018 and the order dated 16.08.2019 are hereby set aside.

8. The writ petition is allowed. It is needless to add that the pension payable to the petitioner would be made as per the correct pay scale payable to the petitioner at the time of her retirement.

JUDGE

Comparing Assistant