Gauhati High Court
Gouri Kumar Singha vs The State Of Assam And 4 Ors on 5 June, 2023
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GAHC010237922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7544/2022
GOURI KUMAR SINGHA
S/O- LT. NANDA KISHOR SINGH, R/O- H.NO. 06, PILINGKATA ROAD,
RADHA GOBINDA MANDIR PATH, BAKRAPARA, BASISTHA, P.O. AND P.S.
BASISTHA, DIST.- KAMRUP (M), ASSAM, PIN- 781029
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE SECY. TO THE GOVT. OF ASSAM, PENSION AND PUBLIC
GRIEVANCES DEPTT., DISPUR, GHY-6
2:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GHY-29
3:THE DIRECTOR GENERAL OF POLICE
ASSAM
GUWAHATI (PENSION CELL)
ULUBARI
GHY-07
4:THE SUPERINTENDENT OF POLICE
CACHAR
SILCHAR
ASSAM- 788001
5:THE TREASURY OFFICER
CACHAR
SILCHAR
ASSAM- 78800
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Advocate for the Petitioner : MR. S S S RAHMAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 05.06.2023
Heard Mr. K. Brook, learned counsel for the petitioner, Mr. A. Hasan,
learned standing counsel for the Accountant General (A&E), respondent no.2
and Mr. S.S. Roy, learned counsel for the respondent nos. 1, 3 and 4 and Mr. R.
Borpujari, learned standing counsel appearing for respondent no. 5.
2. The petitioner is a retired Sub-Inspector of Police in the Assam Police
Department and he retired from service on 31.12.2016 upon attaining the age
of superannuation. The grievance of the petitioner is that though he is in receipt
of regular pension, however, the authorities has not released a portion of his
gratuity benefit till date. Accordingly, the writ petition was filed.
3. The respondent authorities more particularly the Accountant General
(A&E) has taken a stand that when the pension paper of the petitioner was
submitted before the Accountant General (A&E), on scrutiny, it was found that
the annual increment to the retired employee granted on 01.02.1984 was
wrongly determined Rs.537/-. However, such increment ought to have been
Rs.524/-. Accordingly, the pension papers were returned to the employer with a
request to resubmit it after proper correction of the aforesaid error. Such
corrections were made by the employer and was submitted to the Accountant
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General (A&E) and thereafter, the Pension Payment Order was granted by
correcting the mistake.
4. During the pendency of this writ petition, the calculations as regard
DCRG etc were determined and by communication dated 05.06.2023, the Senior
Accounts Officer of the Office of the Accountant General (A&E), Assam, it was
intimated that the petitioner is entitled for DCRG for Rs.8,77,50/-. However, in
view of wrong fixation of the increment as discussed hereinabove in the year
1984, a recovery was sought to be made from the DCRG of the petitioner to the
tune of Rs.3,13,490/-.
5. The learned counsel for the petitioner relying on the judgment of
State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., (2015) 4 SCC
334, submits that there were no allegation of any fraud against the petitioner in
fixation of the increment at Rs.537/- instead of Rs.524/- in the year 1984. Such
mistake were committed by the authorities/ department themselves and
therefore, for their fault no recovery can be made from the petitioner in view of
the aforesaid settled proposition of law.
6. Mr. Hasan, learned counsel in his usual fairness submits that principle
as laid down in Rafiq Masih (supra), shall be applicable in the case in hand as
wrong calculation was done by the Department and no role is attributed to the
petitioner. However, he submits that the order dated 05.06.2023 is not under
challenge in the present writ petition as the same is issued today itself.
7. Countering such arguments, the learned counsel for the petitioner
submits that as it is an admitted position that the recovery cannot be made
from the petitioner, it will be an empty formality to once again compel a
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pensioner to file a fresh writ petition to challenge the order of recovery.
8. Considered the above submission. The fact remains that a wrong
calculation was made in the year 1984 during the service of the petitioner while
determining his annual increment. Such annual increment was determined to be
at Rs.537/- instead of his entitled increment of Rs.524/- and such mistake was
not detected by the employer during the service tenure of the petitioner and
even thereafter and accordingly, pension papers were sent to the Accountant
General (A&E) on the basis of the aforesaid wrong calculation. It is the
Accountant General (A&E) who detected such anomalies and returned back the
record to the department for re-fixation and thereafter only the re-fixation was
made and the recovery is sought to be made on the basis of due and drawn
statement prepared by the department. The department prepared the aforesaid
statement on the basis of the correction made in the increment after the
retirement of the petitioner.
9. There is also no allegations of any fraud or misrepresentation on the
part of the petitioner. The petitioner has preferred the present writ petition
seeking his DCRG etc. Accordingly, this Court is of the opinion that in the given
facts of the present case and also in view of settled proposition of law, no such
recovery can be made from the pensions and pensionary benefits of the
petitioner. Accordingly, though the calculations made cannot be faulted with by
this Court. However, the recovery of Rs.3,13,490/- directed to be made, is set
aside and quashed following the principle enunciated in Rafiq Masih (supra), in
the given facts of the present case.
10. Accordingly, it is directed that the department shall issue necessary
consequential order in terms of this order passed today.
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11. With the aforesaid observation, this writ petition stands disposed of.
JUDGE
Comparing Assistant
