Kamaleswar Rajbonshi vs The State Of Assam And 10 Ors
2025 Latest Caselaw 26 Gua

Gauhati High Court

Kamaleswar Rajbonshi vs The State Of Assam And 10 Ors on 1 April, 2025

                                                               Page No.# 1/13

GAHC010188782023




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

                       Case No. : WP(C)/4926/2023

         KAMALESWAR RAJBONSHI
         S/O- LATE MADAN RAJBONSHI, R/O- PASHIM KRISHNA KANTA
         HANDIQUE NAGAR, GMCH LINK ROAD, HOUSE NO. 26, P.O. KAHILIPARA,
         P.S. DISPUR, DIST. KAMRUP(M), ASSAM, PIN- 781019.



         VERSUS

         THE STATE OF ASSAM AND 10 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR,
         GUWAHATI-06.

         2:THE ACCOUNTANT GENERAL OF ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-29.

         3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-6.

         4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCE DEPARTMENT
          DISPUR
          GHY-6.

         5:THE DIRECTOR GENERAL OF POLICE (COMMN)
         ASSAM
          ULUBARI
          GUWAHATI-7.
                                                                        Page No.# 2/13

            6:THE ADDITIONAL DIRECTOR GENERAL OF POLICE (M AND L)
            ASSAM
            ASSAM POLICE HEADQUARTERS
             ULUBARI
             GUWAHATI-7.

            7:THE INSPECTOR GENERAL OF POLICE (ADMN)

             ULUBARI
             GUWAHATI-07.

            8:THE SUPERINTENDENT OF POLICE (COMMN)

             HQ-I/III
             ASSAM
             ULUBARI
             GHY-7.

            9:THE SUPERINTENDENT OF POLICE (COMMN)
            ASSAM
             ULUBARI
             GUWAHATI-7.

            10:THE DEPUTY SUPERINTENDENT OF POLICE (COMMN)
             HQ

             GUWAHATI.

            11:THE TREASURY OFFICER

             KAMRUP(M)
             GUWAHATI-3

Advocate for the Petitioner   : MR A KHANIKAR, R L CHUTIA,MS B RAJBONGSHI

Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, AG




                                    BEFORE
                        HONOURABLE MR. JUSTICE KARDAK ETE

                                       JUDGMENT

Date : 01-04-2025

Heard Mr. A. Khanikar, learned counsel for the petitioner. Also heard Mr. Page No.# 3/13

J.K. Goswami, learned Addl. Senior Govt. Advocate, Assam for respondent Nos. 1, 4, 5, 6, 7, 8, 9 and 10 and Mr. B. Chakaraborty, learned standing counsel, Accountant General, for respondent No. 2. None appears for the respondent Nos. 3 and 11.

2. By filing this writ petition, the petitioner has challenged the impugned letter dated 01.03.2023, issued by the Sr. Accounts Officer (A&E), Assam, whereby, an amount of Rs. 20,91,958/-(Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight only) is sought to be recovered from the petitioner for the period from 30.04.2014 to 28.02.2017 of the pay and allowances of the petitioner and other actions of respondent authorities in seeking recovery of the pay and allowances from the arrear and future relief from the petitioner on account of over stay in service.

3. Briefly put, the case of the petitioner is that he was initially appointed as Dispatch Rider in Assam Police Radio Organization (APRO) on 16.11.1979. Accordingly, he joined his service as Dispatch Rider and submitted his HSLC passed certificate before the concerned authority as proof of his date of birth. The date of birth in fact as per certificate is 27.04.1954. The respondent authorities recorded the date of birth of the petitioner as 17.02.1957 in his service book, thereby the petitioner had to retire on 28.02.2017. He was promoted to the post of Assistant Sub-Inspector (Operator) in the year 1991 then to Sub-Inspector (Operator) in the year 2016.

4. It is the contention of the petitioner that due to wrong entry of his date of birth in service book, the concerned authority allowed him to render his services till 28.02.2017. However, only after his retirement, when he submitted the pension papers before the concerned authority, the mistake is said have been found by the respondent authorities. The Superintendent of Police, corrected Page No.# 4/13

the said mistake vide order dated 22.07.2019 after 2 years of his retirement. It is stated in the said order that the date of retirement is corrected as 30.04.2014 instead of 28.02.2017 and as such his overdraw salary will be deducted from pensionary benefits.

5. On the basis of the aforesaid order dated 22.07.2019, the Sr. Accounts Officer in the office of the Principal Accountant General (A&E), Assam, issued the impugned letter dated 01.03.2023 for recovery of Rs. 20,91,958/- (Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight only) from arrear and future relief by showing the total recovery to be made as Rs. 26,07,748/-(Rupees Twenty Six Lakh Seven Thousand Seven Hundred Forty Eight) only.

6. Mr. Khanikar, learned counsel for the petitioner, submits that due to wrong entry of the date of birth of the petitioner by the respondent authorities in the service book, the petitioner had actually worked in the service as Sub-Inspector (Operator) till 28.02.2017. It is only in the year 2019, the respondent authorities allegedly detected the inadvertent mistake of wrong recording of the date of birth of the petitioner after having been allowed him to serve up to 2017, i.e. after 2 years of his retirement.

7. Mr. Khanikar, learned counsel, submits that since the petitioner has submitted his HSLC examination certificate before the concerned authorities at the time of his joining in the service which is recorded as 27.04.1954, the recording of date of birth 17.02.1957 is due to fault of the respondent authorities and not of the petitioner. There is no fraud or manipulation on the part of the petitioner in recording his date of birth in service book. Therefore, he submits that the action of the respondent authorities in seeking recovery of Rs. 20,91,958/ (Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Page No.# 5/13

Eight only) from the arrear benefits and future relief of the petitioner cannot be made as the petitioner has already served in the Department for about 2 years and 10 months without their being any fault on the part of the petitioner and as such the action of respondent authorities is liable to be interfered with and this Hon'ble court may direct the respondent authorities not to deduct and recover the amount of pay and allowances paid to the petitioner for the period from 30.04.2014 to 28.02.2017 on account of over stay in the service.

8. On the other hand, Mr. J.K. Goswami, learned Addl. Senior Government Advocate, submits that the date of birth in respect of the petitioner has been wrongly recorded as 17.02.1957 in the original service book and after verification of the High School Leaving Certificate (supplementary) Examination, in 1975 (Duplicate) passed out certificate issued from the Board of Secondary Education (SEBA), Assam, it is found that his actual date of birth is 27.04.1954 instead of 17.02.1957. It is true that at the time of appointment of the petitioner, the date of his birth, on miscalculation, was recorded as 17.02.1957. However, the petitioner being a person of Police Force that too in the capacity of Sub-Inspector, should have brought the fact to the notice of the authority while his date of retirement after attaining the age of 60 years was crossed. But, he did not do so and remained silent which is not befitting as an officer of the discipline force. The matter came to light while he submitted his original HSLC passed out certificate with reference to this office directive. Admittedly, as per his HSLC passed out certificate, his date of birth in the service book was corrected immediately as 27.04.1954 instead of 17.02.1957 and he was considered to have retired w.e.f. 30.04.2014 vide office order D.O. No. 943 dated 22.07.2019.

9. The learned Addl. Sr. Govt. Advocate submits that the petitioner has Page No.# 6/13

received the monthly salary from the Govt. exchequer beyond the limit of his service which is illegal and therefore, is liable to be refunded to the Govt. The order of the authority to deduct the over drawn amount from the DCRG/ Pensionery benefits of the petitioner has been rightly issued from the office of the Addl. Director General of Police (Commn.), Assam, vide dated 22.07.2019 and the office of the Principal Accountant General (A&E), issued the letter for recovery of amount Rs. 20,91,958/- of his overdrawn salary from the arrear and future relief.

10. Mr. J.K. Goswami, learned Addl. Sr. Govt. Advocate, submits that the petitioner is a police officer in the rank of Sub-Inspector and as a Govt. employee, it was also the duty on the part of the petitioner to bring the fact of his date of retirement to his authority, but he did not do so and remained silent. It is therefore, not the respondent authority, but the petitioner, who is responsible for the above mentioned irregularities. The petitioner drew his salary beyond his service limit so the amount overdrawn by him is liable to be recovered.

11. Mr. B. Chakraborty, learned standing counsel, Accountant General (A&E), Assam for respondent No. 2, while endorsing the submissions made by the learned counsel for the respondents, submits that admittedly, the petitioner has over stayed for 2 years and 10 months in the service on the strength of wrong entry of date of birth of as 17.02.1957, whereas he was to retired on 30.04.2014. Having knowing fully over stayed for 34 months and illegally drawn the pay and allowances, the petitioner is liable to refund the said amount. Therefore, the claim of the petitioner is liable to be rejected. He submits that in the event the Hon'ble Court is of the view that recovery from 30.04.2014 to 28.02.2017 cannot be made on account of over stay in the service, at least the Page No.# 7/13

calculation/computation of the pension and pensionary benfits may be directed to be made on the date of the actual retirement i.e. 30.04.2014.

12. I have considered the submissions advanced by the learned counsel for the parties and also perused the records.

13. The decision of the respondent authorities to recover an amount of Rs.20,91,958/-(Rupees Twenty Lakh Ninty One Thousand Nine Hundred and Fifty Eight Only) as pay and allowances for the period from 30.04.2014 to 28.02.2017 from the petitioner on account of over stay in the service, is the issue to be determined, as the ground for challenge is to the effect that the over stay of 34 months in the service by the petitioner is not due to his fault rather the fault of the respondent authorities for not serving the retirement notice.

14. Admittedly, the date of birth of the petitioner is recorded as 17.02.1957 in his service book, whereas his actual date of birth is 27.04.1954. The petitioner has been allowed to go on retirement on 28.02.2017 on the strength of the date of birth of the petitioner on being recorded as 17.02.1957 in his service book.

15. It is noticed that there is as no specific allegation of fraud or manipulation of the date of birth by the petitioner. Although, the petitioner is well aware of his date of birth and the consequential date of retirement, he had rendered his service for a period of 34 months beyond the retirement as no notice was served to the petitioner releasing him from the service on attaining the age of superannuation. Therefore, in my considered view, although, no fault or misrepresentation could be specifically attributed to the petitioner, in view of the knowledge of the petitioner of his date of birth and his date of retirement on attaining the age of superannuation, fault cannot be equally and fully Page No.# 8/13

attributable to the respondent authorities either, but certainly some amount of negligence and lapse could be attributable to the respondent authorities as the justification of the respondent authorities is of inadvertent irregularity.

16. It is not the case of the respondent authorities that the petitioner had fraudulently entered another date of birth in his service book. In fact, such discrepancy should have come to the notice of the authorities during the course of service of the petitioner, and not after he had attained the age of superannuation and on the expiry of the date recorded in the service book. None of the officials had noticed during his service period when the service book was required to be inspected by the officials which shows certain amount of negligence and lapses on the part of the respondent authorities.

17. In this context, a reference may be made to the case of State of Bihar and Ors. Vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117. In that case, the date of birth of the incumbent was as per his matriculation certificate and was also recorded in his service book, however, there was another date of birth in the service book, which was made on the basis of an affidavit furnished by the incumbent and the earlier date of birth was not deleted from the service book. The incumbent was accordingly charged with over stay. The Hon'ble Supreme Court in the facts of that case had interfered with the decision to recover the pay and allowances of the incumbent on account of over stay in the service.

18. Further, this court would refer to some other case laws. In the case of State of Punjab vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334. the Hon'be Supreme Court has held 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 employer, in Page No.# 9/13

excess of their entitlement. One of the situation, which the Hon'ble Supreme Court had envisaged where recovery would be impermissible is that 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.

19. In Jagadish Kumar Deka vs, State of Assam, reported in 2021 (5) GLT 61, this court has considered and discussed the case of Pandey Jagdishwar Prasad (Supra), wherein in that case, the incumbents date of birth was as per his matriculation certificate and was recorded in the Service Book, however there was another date of birth in the Service Book which was made on the basis of an affidavit furnished by the incumbent but the earlier date of birth was not deleted from the Service Book. The incumbent was accordingly charged with overstay. The Hon'ble Supreme Court had interfered with the said decision. The relevant part of the Judgment in Pandey Jagdishwar Prasad (Supra), are extracted herein below-

"16.Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after affidavit, some other date of birth was also evident.

19. It is not needed for this Court to verify the veracity of the Page No.# 10/13

statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be affected from the retiral dues in the monetary benefit available to the employee

24. Without going into the question whether the appellant was Justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.

29. It should also be kept in mind that the respondent might have expected that second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any malafide intentions to continue his service, beyond his date of his retirement, we are of the view that the decision in the case of Radha Kishun vs Union of India and Ors. (Supra), would not be applicable in the facts of the present case."

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20. This court, having considered the above case has observed and held as under:-

"28. Thus, considering the facts and circumstances and the law laid down by the Hon'ble Supreme Court, this Court is of the opinion that the petitioners cannot be faulted within the chain of event which laid their overstay in service for the reasons cited in paragraph 18 above. As a consequence thereof, the impugned action in purporting to recover the salaries for the period of overstay, the details of which is already recorded in the Judgment is interfered with and accordingly set aside. As regards the claim for pension, by following the guidelines of the Hon'ble Supreme Court in the case of Pandey Jagdishwar Prasad (Supra) the petitioners would be entitled to fixation of retiral benefits as on the date of their correct dates of birth with a further clause that for the period of overstay, only the notional benefit would be entitled to as the petitioners entitlement for salaries for the said period has been upheld."

21. On careful consideration of the above case laws, it is seen that that each case would depend upon the attending facts and circumstances of that case. As seen above, the case of Radha Kishun (supra) has been distinguished in Pandey Jagdishwar Prasad (supra). In Rafiq Masih (White Washer) (Supra), the Hon'ble Supreme Court has held 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 employer, in excess of their entitlement. One of the situation, which the Hon'ble Supreme Court had envisaged where recovery would be impermissible is that 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.

22. Reverting back to present case, there is no specific allegation of fraud or manipulation of the date of birth by the petitioner. Although, the petitioner is Page No.# 12/13

well aware of his date of birth and the consequential date of retirement, he had rendered his service for a period of 34 months beyond the retirement as no notice was served to the petitioner releasing him from the service on attaining the actual age of superannuation. Therefore, although, no fault or misrepresentation could be specifically attributed to the petitioner, in view of the knowledge of the petitioner of his date of birth and his date of retirement on attaining the age of superannuation, no fault can be equally and fully attributable to the respondent authorities either. However, since the petitioner had worked during that period of 34 months without raising any objection from the side of the respondent authorities and got works done by the respondent, it may not be fair to allow deduction from his retrial benefits the amount received by him as pay and allowances after his actual date of retirement.

23. Having considered the fact that there was no allegation of fraud or misrepresentation, which could be attributed to the petitioner, I am of the view that it would be unfair at this stage to deduct the said amount of salary paid to the petitioner. Accordingly, no deduction could be made for that period of 34 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the period of 34 months after his actual date of retirement without raising any objection by the respondents.

24. In view of the discussion and observations made herein above, I am of the considered view that it would be unfair to deduct the amount of Rs. 20,91,958/-(Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight) only, the amount of Pay & Allowances paid to the petitioner. Thus, no deduction could be made for the period of 34 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the period of 34 months after his actual date of retirement without Page No.# 13/13

raising any objection by the respondents. Accordingly, the decision to recover and consequential orders for recovery of an amount Rs.26,07,748/-(Rupees Twenty Six Lakh Seven Thousand Seven Hundred and Forty Eight Only) for the pay and allowances avail by the petitioner for 34 months on account of his over stay in the service are hereby set aside and quashed.

25. However, considering that the actual date of retirement of the petitioner was on 30.04.2014 his pensionary and other entitlements be calculated taking the retirement date as on 30.04.2014.

26. Writ petition stands disposed of, accordingly. No order as to costs.

JUDGE

Comparing Assistant