Alfatun Nessa Barbhuiya vs The State Of Assam And 5 Ors
2025 Latest Caselaw 1777 Gua

Gauhati High Court

Alfatun Nessa Barbhuiya vs The State Of Assam And 5 Ors on 7 January, 2025

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GAHC010116242018




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

                           Case No. : WP(C)/3851/2018

         ALFATUN NESSA BARBHUIYA
         W/O. LT. SHAWKAT ALI BARBHUIYA, R/O. RONGPUR PART-III, P.O.
         SAHABAD, DIST. HAILAKANDI, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         THROUGH- THE PRINDIPAL SECRETARY, TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY.

         2:THE COMMISSIONER

          PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
          JURIPAR
          PANJABARI
          GHY.

         3:THE CHIEF EXECUTIVE OFFICER

          HAILAKANDI ZILLA PARISHAD
          P.O. AND DIST. HAILAKANDI
          ASSAM.

         4:THE SECRETARY

          TO THE GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GUWAHATI

         5:THE DIRECTOR OF PENSION
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             ASSAM
             HOUSEFED COMPLEX
             LAST GATE
             DISPUR
             GHY.

            6:THE ACCOUNT GENERAL (A AND E)

             ASSAM
             BELTOLA
             MAIDAMGAON
             GUWAHAT

Advocate for the Petitioner   : MR. S C BISWAS, MS A PARVEEN,MS. K L R YANTHAN,MRS J
BORAH

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

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral) Date : 07.01.2025

Heard Ms. J. Borah, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned counsel appearing for the respondents.

2. The petitioner has instituted the present proceeding assailing an order dated 22.04.2013, issued by the Commissioner, Panchayat & Rural Development, Assam towards effecting recovery of an amount of Rs. 1, 07, 992/- from the pension and pensionary benefits authorized to her husband late Shawkat Ali Barbhuiya.

3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under:-

The husband of the petitioner while working as a Gaon Panchayat Secretary under the Hailakhandi Zila Parishad had retired from his services on reaching the age of superannuation w.e.f. 30.04.1998. The husband of the petitioner was not Page No.# 3/11

authorized his pension and pensionary benefits. Subsequently, vide an order dated 22.04.2013, the respondent no. 2 authorized to the husband of the petitioner, a provisional pension. The respondent no. 2, vide a separate order dated 22.04.2013, accorded sanction for drawal of an amount of Rs. 52, 285/- as provisional DCRG by the husband of the petitioner. However, the provisional DCRG so sanctioned came to be recovered towards the recoverable dues of the husband of the petitioner on account of excess drawal of pay and Leave salary. The amount recoverable from the husband of the petitioner in this connection was quantified at Rs. 1,07,992/. Thereafter, the respondent authorities finalized the pension and pensionary benefits of the husband of the petitioner and issued a Pension Payment Order (PPO) bearing No. ADP/PRI/PPO/GPO/2013/001671.

It is projected in the writ petition that the husband of the petitioner had approached the respondent authorities for withdrawal of the said order of recovery and for release of the amount so recovered. However, no steps were taken by the respondent authorities in the matter. The husband of the petitioner died on 26.07.2015. The prayers made by the petitioner for refund of the amount so recovered from the pension and pensionary benefits of the husband of the petitioner, having not received any response from the respondent authorities; she has instituted the present proceedings.

4. Ms. J. Borah, learned counsel for the petitioner has submitted that the husband of the petitioner had retired on 30.04.1998. Thereafter, after a lapse of considerable period of time i.e. after around 15 years, he was authorized a provisional pension as well as provisional gratuity vide orders both dated 22.04.2013. It is contended by the learned counsel for the petitioner that after a lapse of 15 years, the respondent authorities while authorizing to the husband of the petitioner a provisional DCRG, had indicated therein that an amount of Rs. 1, 07, 992/- was recoverable from his pension and pensionary benefits and Page No.# 4/11

accordingly, the entire amount of provisional DCRG of Rs. 52, 285/-, as sanctioned, came to be adjusted against the amount stated to be recoverable from the pension and pensionary benefits of the husband of the petitioner. The learned counsel for the petitioner has further submitted that the respondent authorities could not have after 15 years from the date of retirement of the husband of the petitioner, proceeded to effect recoveries from the pension and pensionary benefits due to her husband, inasmuch as, it is a settled position of law that recovery from the pension and pensionary benefits of a retired employee and that too after the date of retirement, is not permissible.

5. The learned counsel for the petitioner has further submitted that the respondent authorities had not disclosed as to the manner in which the respondent authorities have computed the amount of Rs. 95,600/- and the amount of Rs. 12,092/- as over drawal of pay and over drawal of Leave salary, respectively, inasmuch as, neither in the order dated 22.04.2013 nor, in the affidavit filed by the respondent authorities in the present proceeding, any details thereof has been spelt out. The learned counsel for the petitioner has further submitted that the respondent authorities have not avered in the affidavit-in- opposition so filed that the over drawal of pay as well as over drawal of Leave salary was on account of any mis-representation and/or fraud committed by the husband of the petitioner in the matter. In the above premises, the learned counsel for the petitioner submits that the amount so recovered from the pension and pensionary benefits of the husband of the petitioner is required to be refunded to the petitioner.

6. Per contra, Mr. S. Dutta, learned counsel for the respondents has submitted that the husband of the petitioner was a provincialised Panchayat Employee and the Pension and Public Grievances Department, vide notification dated 17.03.2011, having extended the benefit of pension and pensionary benefits to Page No.# 5/11

the employees of the Panchayat Department provincialised under the provisions of the Assam Panchayat Employees (Provincialisation) Act 1999, the processing of the pension and pensionary benefits receivable by such employees was made and accordingly, in respect of the husband of the petitioner, initially a provisional pension and a provisional DCRG came to be authorized and thereafter, his pension and pensionary benefits were finalized vide the issuance of PPO bearing No. ADP/PRI/PPO/GPO/2013/001671.

7. It is the submission of the learned counsel for the respondents that while scrutinizing the service book of the husband of the petitioner for the purpose of finalizing his pension and pensionary benefits; it had come to light that the husband of the petitioner had overdrawn pay to the extent of Rs. 95,600/- and also overdrawn Leave salary to the extent of Rs. 12,392/- and accordingly, the same not being entitled to be so drawn by the husband of the petitioner, the amounts drawn in excess came to be recovered from the pension and pensionary benefits as authorized to the husband of the petitioner herein, and accordingly, it is contended that there is no illegality in the recovery so made by the respondents in the matter.

8. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

9. The facts as narrated herein above are not in dispute. The husband of the petitioner had retired from his services as a Gaon Panchayat Secretary, on reaching the age of superannuation w.e.f. 30.04.1998. The pension and pensionary benefits of the husband of the petitioner was not finalized for long 15 years and thereafter, vide the orders both dated 22.04.2013, a provisional pension and a provisional DCRG came to be authorized to the husband of the petitioner. While authorizing the provisional DCRG of Rs. 52,285/- to the husband of the petitioner, the respondent authorities by holding that an amount of Rs.

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1,07,992/- was recoverable from the husband of the petitioner on account of over drawal of pay and also on account of over drawal of Leave salary, the amount of Rs. 52,285/- as sanctioned as provisional DCRG, came to be recovered. The balance amount of Rs. 55,707/- was directed to be recovered from the final pension that would be authorized to the husband of the petitioner. The Director of Pension, Assam, thereafter, vide PPO No. ADP/PRI/PPO/GPO/2013/001671 finalized the pension and pensionary benefits of the husband of the petitioner herein. It is the contention of the petitioner that the balance amount of Rs. 55,707/- was so recovered from the pension as authorized to the husband of the petitioner. Subsequent to the said development, the husband of the petitioner unfortunately passed away on 26.07.2015.

10. The issue arising in the present proceeding is as to whether the recovery now sought to be made from the pension and pensionary benefits of the husband of the petitioner was permissible to be so made in the facts and circumstances as involved in the present matter.

11. The said issue is no longer res-integra and the Hon'ble Supreme Court in the case of Colonel B. J. Akara (retired) Vs Govt. of India, reported in (2006) 11 SCC 709 on the said issue had drawn the following conclusions:-

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional It. Director:

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

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(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."

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12. The Supreme Court in the case of State of Punjab and Ors. Vs Rafiq Masih (whitewasher) and Ors., reported in (2015) 4 SCC 334 has laid down the following principles in this connection on the issue of recovery of amounts mistakenly paid by the employer to the employee in excess of their entitlement:-

"18. 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. 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."

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13. The Hon'ble Supreme Court in a recent decision in the case of Thomas Daniel Vs State of Kerela, reported in (2022) SCC Online SC 536 had reiterated that the relief against recoveries is granted not because of any right of the employees but, in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. It was further held that if in a given case it is proved that an employee had knowledge that the payment received was in excess of what was in due or wrongly paid or, in cases where error is detected or corrected within a short time of wrong payment, the matter being in realm of judicial discretion, the Court may in the facts and circumstances of any particular case order for recovery of the amount paid in excess.

14. Applying the above decisions of the Hon'ble Supreme Court to the facts of the present case, it is found that the respondents have proceeded to effect the recovery of the purported over drawn amounts from the pension and pensionary benefits authorized to the husband of the petitioner after around 15 years from the date the husband of the petitioner had superannuated from his services. The said act on the part of the respondent authorities is clearly impermissible. Further, neither in the order dated 22.04.2013, by which the said recovery was directed to be so made nor in the affidavit filed by the respondent authorities in the present proceedings, it has been highlighted that the overdrawn amounts were so drawn by the petitioner on account of mis-representation and/or fraud committed by him in the matter. Further, the respondent authorities have not spelt out the details of such overdrawn amounts.

15. In view of the said position, this Court is of the considered view that the recovery so directed to be made from the pension and pensionary benefits of the husband of the petitioner is clearly iniquitous. Accordingly, the Office Order dated 22.04.2013 to the extent it proceeds to make recovery of an amount of Rs. 1, 07, Page No.# 10/11

992/- from the pension and pensionary benefits of the husband of the petitioner stands set aside.

16. In view of the conclusions reached by this Court herein above, the recovery as effected from the pension and pensionary benefits of the husband of the petitioner of an amount of Rs. 1,07,992/- having been interfered with, the said amount now be refunded to the petitioner, herein, by the respondent nos. 2 & 5 within a period of 60 (sixty) days from the date of receipt of a certified copy of this order from the petitioner. In the event the amount now directed to be refunded to the petitioner, is not refunded, within a period of 60(sixty) days from the date of receipt of a certified copy of this order, the said amount would carry an interest of 6% w.e.f. the date of recovery of the said amount, till the date of its actual refund to the petitioner.

17. At this stage, it is to be noted that this Court while perusing the materials brought on record, had noticed that in the Pension Payment Order (PPO) bearing No. ADP/PRI/PPO/GPO/2013/001671, the pension disbursing authority had computed the pension and pensionary benefits receivable by the husband of the petitioner by only reckoning a period of 22 years 10 months 29 days of the tenure of service of her husband for the purpose. The petitioner's husband had rendered gross service of 38 years 01 months 29 days however, the entire service so rendered by the husband of the petitioner was not reckoned for the purpose of computing his pension and pensionary benefits. The Division Bench of this Court in the case of State of Assam Vs Syed Md. Fazlay Rabbi [Writ Appeal No. 145/2009 [upheld by the Hon'ble Supreme Court of India, vide order dated 24.08.2020 in Special Leave to Appeal (Civil) No.(s) 19351- 19360/2010] had held that the entire period of service rendered by a provincialised Panchayat employee is required to be reckoned as qualifying service for the purpose of computing his pension and pensionary benefits.

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18. The above issue not being raised in the present proceedings, liberty is granted to the petitioner herein, to submit a representation before the respondent no. 2 praying for revision of pension and pensionary benefits as authorized to the husband of the petitioner herein, vide the above noted PPO and to compute the pension and pensionary benefits of the husband of the petitioner by reckoning the service length of the husband of the petitioner w.e.f. 01.03.1960 to 30.04.1968 i.e. for a period of 38 years 01 month 29 days. The respondent authorities, on receipt of such representation shall consider the same in the light of the decision of this Court in the case of Syed Md. Fazlay Rabbi (supra) and extent to the petitioner, the reliefs so claimed by her in her said representation. Such consideration would now be required to be made by the respondents within a period of 60(sixty) days w.e.f. the date of receipt of the said representation from the petitioner.

19. With the above observations and directions, the present writ petition stands disposed of.

JUDGE

Comparing Assistant