Dewbor Chutia vs The State Of Assam And 5 Ors
2023 Latest Caselaw 3467 Gua

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GAHC010188802023




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

                           Case No. : WP(C)/4921/2023

         DEWBOR CHUTIA
         S/O- LATE NANDA RAM CHUTIA, R/O- KEKURI, P.O. AND P.S.
         DHAKUAKHANA, DIST. LAKHIMPUR, PIN- 787055.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVT. OF
         ASSAM, PENSION DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM, PIN-
         781006.

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY
          GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          PIN- 781006.

         3:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          DISPUR
         ASSAM
          PIN- 781006.

         4:THE SECRETARY

          DEPARTMENT OF SCHOOL EDUCATION
          ASSAM
          KAHILIPARA
          GUWAHATI
          PIN-781019.
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            5:THE INSPECTOR OF SCHOOLS
             LAKHIMPUR
             DIST. LAKHIMPUR
             PIN- 785661.

            6:THE FINANCE AND ACCOUNTS OFFICER

             DIRECTORATE OF PENSION
             HOUSEFED COMPLEX
             DISPUR
             ASSAM
             PIN- 781006

Advocate for the Petitioner   : MR A KHANIKAR

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                           ORDER

30.08.2023 Heard Mr. A Khanikar, learned counsel for the petitioner and Mr. N J Khataniar, learned Standing counsel, Department of School (Secondary) Education, Assam for the respondents.

2. The petitioner on 31.01.2020 retired from service as Grade-IV Chawkidar of erstwhile Kekuri M.E. School later amalgamated with Kekuri Tribal High School.

3. The Inspector of Schools, Lakhimpur, North Lakhimpur on 10.03.2020 provided Provisional Pension of Rs. 17,089/- as well as Provisional Death-Cum-Retirement Gratuity of Rs. 6,05,643/-, deducting Rs. 60,000/- towards adjustment.

4. The Directorate of Pension, Assam vide communication dated 31.03.2021 returned the pension proposal of the petitioner to the Inspector of Schools, Lakhimpur, North Lakhimpur stating that as on 01.04.2016, the pay of the petitioner should have been Rs. 29,720/- with Basic Pay of Rs. 25,820/- plus Grade Pay of Rs. 3,900/- per month, which was wrongly calculated as Rs. 30,620/- per month.

5. As such, by the said communication dated 31.03.2021, the authorities in the Page No.# 3/4

Directorate of Pension, Assam informed the Inspector of Schools, Lakhimpur, North Lakhimpur to do the needful to assess the excess drawal with the observation that the Head of the Office may move to the competent authority to waive recovery in terms of the Finance Department's Office Memorandum dated 14.06.2019 and accordingly, returned the Service Book of the petitioner to the Inspector of Schools, Lakhimpur, North Lakhimpur.

6. Being aggrieved with such recovery, the petitioner has preferred this writ petition.

7. The Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and Others -Vs.- Jagdev Singh, reported in (2016) 14 SCC 267, after considering the judgment of State of Punjab Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 laid down the law as to when the excess amount is permissible to be recovered from an employee's post retirement benefits, wherein the Hon'ble Apex Court have observed that -

"The Officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded where the Officer furnished an undertaking while opting for the revised pay scale, the concerned Officer is bound by the said undertaking."

8 However, the Hon'ble Apex Court in the said case of High Court of Punjab and Haryana and Others -Vs.- Jagdev Singh (supra) also observed that such recovery should be made in reasonable installments.

9. On the next date fixed, the Inspector of Schools, Lakhimpur, North Lakhimpur shall apprise the Court the reasons for recovery of Rs. 60,000/- from the amount of provisional DCRG that was payable to the petitioner and further, as to whether the petitioner gave any undertaking while determining his Scale of Pay as on 01.04.2016 in terms of relevant Revision of Pay Rules.

10. Until further order of the Court, the respondent authorities shall not recover any further amount from the retirement dues payable to the petitioner. Further, deduction/recovery already made by the respondent authorities shall be subject to the outcome of this writ petition.

11. List on 20.09.2023.

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12. Petitioner shall serve two requisite extra copy of this writ petition including the Annexures appended thereto, to Mr. N J Khataniar, learned Standing counsel, Department of School (Secondary) Education, Assam by 31.08.2023, obtaining necessary acknowledgment from him in that regard.

JUDGE

Comparing Assistant