Moina Ojha @ Moina Ozah vs The Union Of India And 3 Ors
2025 Latest Caselaw 4990 Gua

Gauhati High Court

Moina Ojha @ Moina Ozah vs The Union Of India And 3 Ors on 26 May, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

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GAHC010123612022




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

                                 Case No. : WP(C)/4200/2022

            MOINA OJHA @ MOINA OZAH
            RETIRED WARD SISTER, W/O. SRI BHARAT HAZARIKA, R/O- PARBOTI
            NAGAR, MADAN KAKOTI PATH, TEZPUR, PIN CODE- 784001, DISTRICT-
            SONITPUR, ASSAM.

            VERSUS

            THE UNION OF INDIA AND 3 ORS
            THROUGH- THE SECRETARY, TO THE GOVERNMENT OF INDIA, MINISTRY
            OF HEALTH AND FAMILY WELFARE, NEW DELHI.

            2:THE DIRECTOR
             LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
            HEALTH
            TEZPUR- 784001
             DISTRICT- SONITPUR
            ASSAM.

            3:THE CHIEF ADMINISTRATIVE OFFICER
             LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
            HEALTH
            TEZPUR- 784001
             DISTRICT- SONITPUR
            ASSAM.

            4:THE CHIEF FINANCE AND ACCOUNTS OFFICER

            LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
            HEALTH
            TEZPUR- 784001
            DISTRICT- SONITPUR
            ASSAM

Advocate for the Petitioner   : MR. S C BISWAS, MS. R DEVI,MR. A K DAS,MR. P S
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BISWAS,MS. J GHOSH

Advocate for the Respondent : ASSTT.S.G.I., MR. A K DUTTA,SC, L G B R I M H


                                  BEFORE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                         ORDER

26.05.2025 Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned CGC for the respondents.

2. The petitioner was joined LGB Regional Institute of Mental Health, Tezpur on 05.08.1988 as GNM. Subsequently promoted to the post of Ward Sister which is a substantive post and was granted enhanced Grade Pay vide Office Order dated 18.03.2016 along with many others. She was retired from service on 31.03.2019 on attaining the age of superannuation as communicated by Notice dated 11.01.2019 and was granted pension w.e.f. 01.04.2019 vide PPO dated 23.04.2020. Vide the impugned communication dated 30.11.2021 issued by the Respondent No. 3, the petitioner was informed that, as per audit observation, an amount of Rs. 7,96,341/- is overdue against her and was directed to refund excess payment and accordingly Rs. 10,276/- had been deducted from her pension per month w.e.f. November 2021 and Rs. 7,000/- per month w.e.f. May 2022, although the said alleged overdrawal is not due to any fault or misrepresentation of fact by the petitioner. Being aggrieved the writ petition has been filed.

3. It is submitted at the Bar that the issues involved in this writ petition have already been conclusively adjudicated by a Co-ordinate Bench of this Court by the Judgment and Order dated 13.09.2022 passed in WP(C) No.258/2022 and the batch of connected writ petitions. A Division Bench of this Court has also Page No.# 3/8

affirmed the said Judgment by the Judgment and Order dated 24.04.2025 passed in Writ Appeal No.132/2025 which was preferred by the Union of India as appellants. The directions contained in the said Judgment and Order of the Division Bench being relevant for the purposes of deciding the issues of the present proceedings are extracted below :-

17. The Hon'ble Supreme Court in a recent decision in the case of Jogeswar Sahoo and Ors. Vs District Judge, Cuttack and Ors, reported in (2025) SCC Online SC 724, by noticing its earlier decision on the issue had drawn the following conclusions:

"7. The issue falling for our consideration is not about the legality of the retrospective promotion and the financial benefit granted to the appellants on 10.05.2017. The issue for consideration is whether recovery of the amount extended to the appellants while they were in service is justified after their retirement and that too without affording any opportunity of hearing.

8. The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana1, Shyam Babu Verma vs. Union of India2, Union of India vs. M. Bhaskar3 and V. Gangaram vs. Regional Jt. Director4 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors.5.

9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the Page No.# 4/8

pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.

10. In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13: "10. In Sahib Ram v. State of Haryana1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

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11. In Col. B.J. Akkara (Retd.) v. Government of India2 this Court considered an identical question as under:

"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 [1995 Supp (1) SCC 18: 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521:

1994 SCC (L&S) 683: (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416: 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139: 1997 SCC (L&S) 1652]): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(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 Page No.# 6/8

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."

18. Applying the decision of the Hon'ble Supreme Court in the Page No.# 7/8

case of Rafiq Masih (supra) as well as in J. Sahoo (supra) to the facts of the present case, we are of the considered view that the recovery now sought to be made from the respondent no. 1 in the above noted appeals, is clearly iniquitous, harsh and arbitrary. Accordingly, the said recovery would not be permissible to be so made.

19. The learned Single Judge, vide impugned order dated 13.09.2022, having drawn conclusions to the effect that no recovery of the excess payment made to the respondent nos. 1 in the above noted writ appeals was permissible in view of such recovery being effected after a lapse of 15 years from the date their pay was so erroneously fixed and such conclusion being supported by the decisions of the Hon'ble Supreme Court noticed hereinabove, in our considered view, would not call for any interference. Further, the order dated 13.09.2022, passed by the learned Single Judge, impugned in the present appeals, in our considered view also does not suffer from any perversity.

20. At this stage, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Airport Authority of India Vs Pradip Kumar Banerjee, reported in (2025) SCC Online SC 232, wherein, it has been held by the Hon'ble Supreme Court that in an intra-court appeal, the finding of fact of the learned Single Judge, unless such finding is concluded by the appellate bench to be perverse, would not be called to be disturbed. It has been further held that merely because another view or a better view is possible; there should be no interference with or disturbance of the order passed by the learned Single Judge unless both sides agree for a fairer approach on relief.

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21. Applying the decision of the Hon'ble Supreme Court, referred to above, to the facts of the present case, we having not found any perversity with regard to the conclusions reached by the learned Single Judge in the impugned order dated 13.09.2022, and the view taken by the learned Single Judge being a plausible view; we are not persuaded by the submissions of the learned Counsel for the appellants, to take a different view in the matter. Accordingly, we are of the considered view that the impugned order, dated 13.09.2022, passed by the learned Single Judge in WP(C) No. 5271/2021, WP(C) No. 258/2022, WP(C) No. 5433/2021, WP(C) No. 5541/2021, WP(C) No. 5225/2021, WP(C) No. 5269/2021, WP(C) No. 5239/2021 and WP(C) No. 5577/2021, would not warrant any interference.

4. Having perused the said Judgment and Order passed in W.A. No.132/2025, and also taking into consideration the submissions made in the Bar it is seen that the issues urged in the present proceedings stand covered by the Judgment and Order dated 24.04.2025 passed in W.A. No.132/2025. In that view of the above, nothing further survives for adjudication in this writ petition. Therefore, the writ petition stands allowed.

5. The impugned communication dated 30.11.2021, whereby recovery is sought from the petitioner, is interfered with and set aside.

6. Accordingly, the writ petition stands disposed of.

JUDGE Comparing Assistant