Gauhati High Court
Surendra Nath Ray vs The State Of Assam And 6 Ors on 24 May, 2023
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GAHC010101402020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3009/2020
SURENDRA NATH RAY
S/O LT. MAHANTA RAY, R/O VILL. AND P.O. BIDYARDABRI, DIST. DHUBRI,
ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (SECONDARY) DEPTT. DISPUR, GHY-06
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPTT. DISPUR
GHY-06
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT. DISPUR
GHY-6
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
5:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
DISPUR
GHY-6
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6:ACCOUNTANT GENERAL
ASSAM
BELTOLA
GHY-29
7:THE DEPUTY INSPECTOR OF SCHOOLS
DHUBRI
P.O. AND DIST. DHUBRI
ASSAM
PIN-78330
Advocate for the Petitioner : MR. N ALAM R K
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
24.05.2023
Heard Mr. A. Rahman, learned counsel for the petitioner. Ms. D. Mushahary,
learned Standing Counsel appears for the respondent Secondary Education
Department; Mr. R. Ahmed, learned Standing Counsel appears for the
Accountant General (A&E), Assam and Mr. S.R. Barua, learned Counsel appears
for the respondent nos.2 & 5.
2. The case of the petitioner herein is that the petitioner had retired in the
year 2014. Subsequent thereto the petitioner has received the provisional DCRG
and presently is getting the provisional pension. However, the final pension of
the petitioner has not been finalized and it is under such circumstances the
petitioner is before this Court. This Court, vide an order dated 19.10.2020 had
issued notice and further in the interim directed the respondents not to recover
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the excess amount of Rs.1,62,289/- from the pensionary benefits of the
petitioner if the same has not yet been recovered. It is further apparent from a
perusal of the records that excess amount of Rs.1,62,289/- is on account of
wrong fixation of the salary of the petitioner. It is been stated in the writ
petition and also submitted by the learned counsel for the petitioner that in
respect to the fixation of pay of the petitioner, the petitioner had no role.
3. Today when the matter has been listed Ms. D. Mushahary, learned
Standing Counsel for the Secondary Education Department has placed on record
a communication issued by the Inspector of Schools, Dhubri to the Director of
Secondary Education, Assam, whereby a request was made for taking necessary
steps in terms with the Government O.M. dated 27.01.2022 for waiving the
excess drawn amount and finalise the pension in respect of the petitioner as he
had retired on 30.06.2014 and till date his pension have not been finalized due
to wrong fixation of pay etc. The said instruction is kept on record and marked
with the letter "Y".
4. The law as regards recovery from retired employees on account of wrong
fixation of pay is well settled by the judgment of the Supreme Court. The
judgment of the Supreme Court in the case of State of Punjab and Others
Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334
categorically mandates the circumstances in paragraph-18 when such recovery
shall not be permissible.
5. Paragraph-18 of the said judgment is re-produced hereinunder:
"18. It is not possible to postulate all situations of hardship which would
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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 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."
6. The case of the petitioner is squarely covered by the directions in
paragraph 18(ii) of the aforesaid judgment and as such the recovery of the said
amount of Rs.1,62,289/- from the pensionary benefits of the petitioner would be
impermissible. In that view of the matter, this Court therefore disposes off the
instant writ petition directing the Director of Secondary Education, Assam as
well as the Director of Pension, Assam to take appropriate steps for finalising
the pension of the petitioner within 4 (four) months from the date a certified
copy of the instant order is served to the Director of Pension, Assam as well as
the Director of Secondary Education, Assam. It is made clear that the Director
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of Secondary Education, Assam while sending proposal to the Director of
Pension, Assam shall send the proposal on the basis of the correct scale of pay.
7. With the above directions and observations, the writ petition stands
disposed off.
JUDGE
Comparing Assistant
