Jashim Uddin Laskar vs The State Of Assam And 5 Ors
2022 Latest Caselaw 1458 Gua

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GAHC010212652021




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

                          Case No. : WP(C)/6994/2021

         JASHIM UDDIN LASKAR
         S/O LT. KUTUB UDDIN LASKAR, VILL-RAJYESWARPUR PART-III, P.O.-
         AMALA, P.S.-LALA, DIST-HAILAKANDI, ASSAM, PIN-788164



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, EDUCATION DEPARTMENT (ELEMENTARY),
         DISPUR, GUWAHATI-6

         2:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-19

         3:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          DISPUR
          GUWAHATI-06

         4:THE FINANCE AND ACCOUNTS OFFICER
          DIRECTORATE OF PENSION
         ASSAM
          GUWAHATI-06

         5:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-22
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             6:THE DISTRICT ELEMENTARY EDUCATION
              HAILAKANDI
              DIST- HAILAKANDI
             ASSAM
              PIN-78815

Advocate for the Petitioner   : MR. S B LASKAR

Advocate for the Respondent : SC, ELEM. EDU




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 06-05-2022

Heard Mr. S.B Laskar, learned counsel for the petitioner and Mr. P.N. Sarma , learned counsel appearing on behalf of the respondent Nos. 1, 2 and 6. Also heard Mr. A. Hassan, learned counsel for the respondent No. 5 and Mr. B. Saikia, learned counsel appearing on behalf of the respondent Nos. 3 and 4.

2. The case of the petitioner is that the petitioner is a retired Headmaster of Jagdev Agrahari M.E. School. Pursuant to his retirement the petitioner submitted his pension papers and the respondent authorities had processed the same. The same was submitted before the Director of Pension, Assam to finalize the pensionary benefits payable to the petitioner. The Office of the Director of Pension, Assam through letter under memo No. ADP/2020-21/2020/11/0331 dated 20.04.2021 issued by the Finance and Accounts Officer have intimated the District Elementary Officer, Hailakandi that while checking the pension proposal, it was found that there was certain deficiency for which the Directorate Page No.# 3/5

could not finalize the pensionary benefits of the petitioner. The deficiency/shortcoming in the service book/pension papers which were found were (i) fixation of pay on 01.01.1989 found wrong which should have been Rs. 1475/- instead of Rs. 1685/- and subsequent increments/fixation be done accordingly and entered in the Service Book. Due and drawn statement may be prepared and excess payment may be assessed and appropriate action for recovery of excess drawal be taken.

3. It is further case of the petitioner that the wrong fixation of pay has been done at the behest of the respondent authorities and the petitioner had no role to play and as such there was no question of fraud or misrepresentation on the part of the petitioner. The counsel for the petitioner submits that it is an established principle of law the excess salary so paid to the petitioner during his service tenure because of no fault of his cannot be recovered from his retirement benefits more so after the petitioner have already retired inasmuch as the same would be iniquitous and consequently arbitrary and in that regard the learned counsel for the petitioner referred to the judgment of the Supreme Court in the case of State of Punjab and Ors. V. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334.

4. I have heard the learned counsel for the parties and given my anxious consideration to the matter.

5. A perusal of the judgment of Rafiq Masih (supra) would go to show that the question which arose for consideration before the Supreme Court was whether the benefits which arose to the employees consequent upon a mistake committed by the competent authority concerned in determining the emoluments payable to them can be Page No.# 4/5

recovered from the employees. The Supreme Court in paragraph No. 13 dealt with a situation as regards the employees who were in service and in that regard held that any action of recovery of the payment of excess amount beyond 5(five) years would be extremely iniquitous and arbitrary. In paragraph No. 16, the Supreme Court dealt with the question as regards retired employees and observed that the retired employee or an employee about to retire is a class apart from those who have sufficient service to their credit before their retirement. It was further observed that at retirement an employee have passed his youth, his needs are far in excess of what they were when he was younger despite that his earnings have substantially dwindled (or substantially reduced on his retirement). In that aforesaid perspective, the Supreme Court observed that recovery would be iniquitous and arbitrary if it is sought to be made after the date of retirement or soon before retirement. It would be justified to treat an order of recovery, on account of wrongful payment made to an employee as arbitrary if the recovery is sought to be made after the employee's retirement or within 1(one) year from the date of his retirement or superannuation. After observing the same, the Supreme Court summarized the various situations wherein recovery by the employers would be impermissible in law and in that regard, paragraph 18 of the said judgment would be relevant and the same is quoted herein 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV Page No.# 5/5

service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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."

The proposition No. (ii) as enunciated herein in Paragraph 18 would show that recovery from retired employee, or employees who are due to retire within 1(one) year of the order of recovery has been held to be impermissible in law.

6. In the facts of the instant case, the petitioner have retired on 31.12.2019 and the recovery which is being sought to be made in respect to the excess payments now is in the teeth of the proposition of law as enunciated by the Supreme Court in Rafiq Masih (White Washer Supra) and consequently this Court, therefore, directs the respondent authorities not to insist upon the recovery of excess drawal of the salary from the pensionary benefits payable to the petitioner.

7. With the above observations, the petition stands disposed of.

JUDGE

Comparing Assistant