Kabita Dutta vs The State Of Assam And 5 Ors
2023 Latest Caselaw 1011 Gua

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GAHC010049342023




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

                          Case No. : WP(C)/1359/2023

         KABITA DUTTA
         W/O- MINESWAR HAZARIKA, R/O- WARD NO 8, BIHPURIA TOWN, P.O.
         BIHPURIA, P.S. BIHPURIA, PIN- 784161, DIST.- LAKHIMPUR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, SECONDARY
         EDUCATION DEPTT., DISPUR, PIN- 781006, DIST.- KAMRUP (M), ASSAM

         2:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GHY-6

         3:THE DIRECTOR
          SECONDARY EDUCATION DEPTT.
         ASSAM
          KAHILIPARA
          PIN- 781019
          DIST.- KAMRUP (M)
         ASSAM

         4:THE DIRECTOR
          PENSIONS
         ASSAM HOUSEFED COMPLEX
          NEW BUILDING
          DISPUR
          GHY-6

         5:THE INSPECTOR OF SCHOOLS
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             LAKHIMPUR DISTRICT CIRCLE
             NORTH LAKHIMPUR
             DIST.- LAKHIMPUR
             ASSAM

            6:THE TREASURY OFFICER
             BIHPURIA
             NORTH LAKHIMPUR
             DIST.- NORTH LAKHIMPU

Advocate for the Petitioner   : MR D GOGOI

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

15.03.2023

Heard Mr. D. Gogoi, the learned counsel for the petitioner and Mr. N. J. Khataniar, the learned counsel appearing on behalf of the respondent Nos.1, 3 & 5. Also heard Mr. R. Borpujari, the learned counsel appearing on behalf respondent Nos.2 & 6 as well as Mr. B. Saikia, the learned counsel appearing on behalf of the respondent No.4.

Issue notice making it returnable on 29.03.2023.

As the respondents are duly represented by their respective counsels, extra copies of the writ petition be served upon them during the course of the day.

The learned counsel for the petitioner has submitted that on account of wrong fixation of pay for which the petitioner was not at fault, the petitioner under duress, had to pay the account of Rs.1,44,133/- on Page No.# 3/3

04.03.2019. The learned counsel for the petitioner has further submitted that the instant case is squarely covered by the judgment of the Supreme Court in the case of State of Punjab and Others vs. Rafiq Mashi (White Washer), reported in (2015) 4 SCC 334. He further submits that the

respondent authorities, at the time of retirement of the petitioner, have sought to make the recovery which is otherwise impermissible and iniquitous. The learned counsel for the petitioner submits that this is not a case where any undertaking was given by the petitioner or there is any fraud or collusion which have resulted in the wrong fixation of the pay.

During the course of hearing, the learned counsel for the petitioner has also submitted that there is an Office Memorandum of the Government of Assam dated 14.02.2019 which has been adopted by the Government on the basis of the judgment rendered in the case of Rafiq Mashi (White Washer) (supra) and as such the recovery so made from the

petitioner is on the face of it not permissible.

In that view of the matter, this Court, upon hearing the learned counsel for the petitioner therefore directs the respondents to apprise this Court on the next returnable date as to why the petitioner is not entitled to the refund of the amount of Rs.1,44,133/-.

List accordingly.

JUDGE

Comparing Assistant