Tapasi Nath vs The State Of Assam And 4 Ors
2024 Latest Caselaw 2859 Gua

Gauhati High Court

Tapasi Nath vs The State Of Assam And 4 Ors on 1 May, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

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GAHC010084392024




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

                         Case No. : WP(C)/2275/2024

         TAPASI NATH
         (RETIRED ASSISTANT TEACHER OF JANAKI CHARAN HIGHER
         SECONDARY, KALINAGAR, ASSAM, D/O- SRI PROBHAT CHANDRA NATH,
         R/O- FLAT NO. 106, BLOCK- A1, MERUJEEN HOUSING COMPLEX, P.O.
         NARENDRAPUR, DIST. SOUTH 24 PARAGANAS, KOLKATA, WEST BENGAL,
         PIN- 700103.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         EDUCATION (SECONDARY) DEPARTMENT, DISPUR, GUWAHATI-6.

         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-19.

         3:INSPECTOR OF SCHOOLS

          HAILAKANDI DISTRICT CIRCLE
          HAILAKANDI
          DIST. HAILAKANDI.

         4:THE DIRECTOR OF PENSION

          GOVT. OF ASSAM
          HOUSEFED COMPLEX
          DISPUR
          GHY-6.

         5:TREASURY OFFICER
                                                                       Page No.# 2/5


             DIST. HAILAKANDI

Advocate for the Petitioner   : MR. S K DAS

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

01.05.2024 Heard Mr. S.K. Das, learned counsel for the petitioner. Also Ms. D. Mushahary, learned Standing Counsel, Secondary Education and Mr. R. Borpujari, learned Standing Counsel, Finance.

2. The petitioner who was appointed as Assistant Teacher and joined her service on 14.11.1998 in Janaki Charan Higher Secondary School and had retired from service as an Assistant Teacher of the same school on VRS w.e.f 01.10.2021.

3. The Office of the Inspector of Schools, Hailakandi had made an impugned recovery list of excess amount of Rs. 2,14,433/- drawn by the petitioner.

4. The law in this respect has been settled by the Hon'ble Supreme Court in Rafiq Masih case reported in (2015) 4 SCC 334, wherein, it has been provided that in the event, an employee is paid a higher pay, than he is entitled during his service tenure and for such excess drawl no fault can be attributed to the petitioner, such amount cannot be deducted from his pensionary benefit upon superannuation.

5. The learned counsel for the respondents submits that he had no instructions as to whether the excess payment was made to the petitioner Page No.# 3/5

because of the fault of the petitioner himself.

6. By following the principle of law laid down by the Hon'ble Supreme Court in Rafiq Masih case reported in (2015) 4 SCC 334 , this Court is of the view that the authorities cannot deduct any excess payment that was made to the petitioner for no fault of his during his service tenure.

7. It is also seen that the State of Assam by Office Memorandum No. Fin (EC- III).1808/2018/2 dated 14.06.2019 has issued a set of instructions towards deduction of excess payments made in respect of Grade-III and Grade-IV employees of the State. By the said circular following the Judgment of Rafiq Masih (Supra), the State Government has instructed that in cases of excess payment in respect of Grade-III and Grade-IV employees unless it is seen that the excess payment was made for the fault of the employee concerned, no deduction is permissible. The said Office Memorandum is extracted below:

"GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR:: GUWAHATI, 06

OFFICE MEMORANDUM

No. Fin (EC-III).1808/2018/2 Dated Dispur, the 14th June 2019

Subject: Recovery of wrongful/excess payment made to the Government Servants

1. Finance Department has received several proposals from the Administrative Departments seeking view on the recovery of excess drawal of emoluments than the entitlements of the employers, especially at the time of finalization of the pension papers of the incumbents.

2. In this connection, reference is drawn to the Govt. of India O.M. F.No.18/03/2015-Estt. (Pay-I) dtd. 2 nd March, 2016.

3. The issue had come up for consideration before the Hon'ble Supreme Court in the case of State of Punjab & Ors --vs- Rafiq Masih (White Washer ) etc. in CA No. 11527 of 2014 (Arising out of SLP© No. 11684 of 2012 ) and was decided by the Hon'ble Court on 18.12.2014.

4. The Hon'ble Supreme Court while observing that 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 Page No.# 4/5

employer, in excess of their entitlement, has summarized the following few situations, wherein recoveries by the employers would be impermissible in law :

i. Recovery from employees belonging to Class III and Class-IV service (for Group 'C' and Group 'D' service).

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

iii. Recovery from 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 for outweigh the equitable balance of the employer's right to recover.

5. All Departments are to act in accordance with the above stipulations while deciding cases of wrongful/excess payments.

6. However, in all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc. come to notice, immediate corrective action must be taken.

7. In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment. Reasons for the decision should be clearly conveyed so as to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee.

8. Whenever any excess payment is made on account of fraud, misrepresentation, collusion, favoritism, negligence or, carelessness, etc. roles of those responsible for overpayments in such cases, and the employees who benefitted from such actions should be identified, and departmental/criminal action should be considered in appropriate cases.

9. However, when the waiver of recovery in the above mentioned situations is considered, Pension and Public Grievances Department is empowered with financial ceiling of RS.1,00 Lakh (Rupees One lakh) in each individual case where recovery is to be waived, and beyond Rs.1.00 Lakh (Rupees One Lakh) the express approval of Finance Department is to be obtained.

10. This O.M, will be applicable to all pending cases of wrongful/excess drawal as on 18.12.2014 (i.e, date of judgment in CA No. 11527/2014).

Sd/-

(Samir K. Sinha, IAS) Principal Secretary to the Government of Assam Finance Department"

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8. Accordingly, this Court considers it appropriate to close the present writ petition in terms of the law laid down by the Apex Court in Rafiq Masih (Supra) read with the Office Memorandum dated 14.06.2019 issued by the Government of Assam. The respondent authorities cannot proceed to deduct any excess payment unless a proper enquiry is made to the satisfaction that this excess payment had occasioned due to the fault of the writ petitioner. The respondent authorities will make necessary enquiry into the matter and unless it is seen that this excess payment was made because of the fault on the part of the writ petitioner, no steps will be taken to deduct the excess payment or adjust the same from the pension payable to the petitioner.

9. Upon making such enquiry as directed, a copy of the order shall be furnished to the writ petitioner. Upon such enquiry being made and where it is found that there was no fault on the part of the writ petitioner towards the excess payment made in his favour, the respondent authorities will forthwith release the pension payable to the petitioner at the pay-scale last drawn without proceeding to deduct any excess payment made.

10. The entire exercise directed to be carried by the State shall be carried out within a period of 60 (sixty) days from the date of receipt of certified copy of this order.

11. With the above observations, the writ petition stands disposed of.

JUDGE

Comparing Assistant