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2013 DIGILAW 704 (GAU)

Anuradha Choudhury v. State of Arunachal Pradesh

2013-09-25

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. M. Chanda, learned counsel for the petitioner. Also heard Ms. C. Deka, learned Addl. Sr. Govt. Advocate, Arunachal Pradesh. The petitioner, who has taken voluntary retirement from service with effect from 1.10.2011 has filed this writ petition making a grievance against the deduction of Rs. 24,294/- from the retirement gratuity. The petitioner has also prayed for release of the pensionary benefits including gratuity with interest @ 18% with effect from 1.10.2011. It is the case of the petitioner that the delay in finalizing the pension case of the petitioner being not attributable to her, the respondents are liable to pay interest on delayed payment. So far as the recovery of Rs. 24,294/- from the retirement benefit is concerned, in paragraph-11 of the writ petition it has been stated that the petitioner having not committed any fraud or mis-representation, which can be said to have forced the respondents to pay the said amount to the petitioner, the respondents are not entitled to recover the said amount, more particularly when the alleged excess payment is for the period from 1991 to 1998. 2. In the counter affidavit filed by the respondents on 11.09.2013, it has been stated that the recovery has been made when it was found on scrutiny of leave ledger and service book of the petitioner that there was wrong calculation in the same. Accordingly order for recovery of the aforesaid amount of Rs. 24,294/- was ordered as the petitioner was paid excess pay for 23 days. 3. By filing another affidavit today, it has further been contended that the claim of the petitioner for payment of pensionary benefits had been checked on several occasions and eventually to avoid any further complicacy, by order dated 20.9.2013, the GPF amount to the writ petitioner has been released deducting an amount of Rs. 9,409/-. Such deduction has been made on the probability of adjustment etc. It has also been stated that the amount would be refunded to the petitioner after getting required communications from the respective drawing and disbursing authority. 4. Mr. Chanda, learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in (2000) 4 SCC 335 (Union of India Vs. It has also been stated that the amount would be refunded to the petitioner after getting required communications from the respective drawing and disbursing authority. 4. Mr. Chanda, learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in (2000) 4 SCC 335 (Union of India Vs. R. Sarabgapani) submits that even if there was any excess drawal of salary, there being no fault on the part of the petitioner coupled with the fact that there was no mis-representation on her part, the recovery is not permissible that too after so many years and without putting the petitioner to any kind of notice. He has also referred to Rule 68 of the CCS (Pension) Rules and the guidelines framed thereunder providing for interest on delayed payment of retirement/death gratuity etc. Ms. Deka, learned State Counsel, on the other hand submits that when the calculation was made it was found that the petitioner had availed 23 days of excess leave and accordingly recovery was ordered to be made from her retirement benefits. As regards release of GPF and withholding of Rs. 9,409/- she submits that as soon as the required clarification is received, subject to the outcome thereof, the amount would be refunded to the petitioner. 5. I have considered the rival submissions made by the learned counsel for the parties and have also considered the entire materials on record. 6. As noted above, the petitioner took voluntary retirement from service with effect from 1.10.2011 and by now almost 2 years have gone by. It is only on 20.9.2013, the GPF amount has been released in favour of the petitioner and that too with the deduction of Rs. 9,409/- for future adjustment. So far as the recovery of Rs. 24,294/- is concerned, as stated in the writ petition, the purported excess payment relates to the year 1991-1998. There is absolutely no whisper in the counter affidavit filed by the respondents that any particular conduct of the petitioner is responsible for such excess payment. No misrepresentation and/or fraud has been alleged against the petitioner. It is in such circumstances, the Apex Court in the decision reported in (2009) 3 SCC 475 (Syed Abdul Quadir Vs. There is absolutely no whisper in the counter affidavit filed by the respondents that any particular conduct of the petitioner is responsible for such excess payment. No misrepresentation and/or fraud has been alleged against the petitioner. It is in such circumstances, the Apex Court in the decision reported in (2009) 3 SCC 475 (Syed Abdul Quadir Vs. State of Bihar) dealing with the recovery of excess payment referring to equitable principles prohibiting or allowing such recovery held, that generally such recovery is prohibited where there is no misrepresentation or fraud on employee's part and payment has been made by applying a wrong principle or wrong interpretation of a rule/order. Such relief is granted not because employee has any right but because the Court exercises its equity jurisdiction so as to avoid hardship to an employee who is not at fault. 7. In R. Sarabgapani (supra) also the Apex Court interfered with the recovery made against the retired person noticing the fact that the excess payment was not attributable to any misrepresentation on the part of the petitioner involved in the said case. 8. In both the counter affidavits filed by the respondents nothing has been stated as to what has caused the delay in payment of pensionary benefits including the gratuity and GPF amount to the petitioner. Only stand of the respondents is the mis-calculation, which, as noted above is not attributable to the petitioner in any manner. The petitioner was paid with provisional pension for 6 months and thereafter the same has also been stopped. 9. For all the aforesaid reasons, this writ petition is allowed by setting aside the impugned decisions of the respondents to recover the alleged payment to the petitioner amounting to Rs. 24,294/- and also withholding of the GPF amount of Rs. 9,409/- with the further direction to the respondents to release the pensionary benefits including the monthly pension without any further delay and at any rate, not later than 31.10.2013. Further considering the aforesaid provisions of Rule 68 of the CCS (Pension) Rules and the guidelines framed thereunder, it is also hereby provided that the petitioner shall be entitled to interest on delayed payment of pensionary and retirement benefits @ 9% per annum. The amount of interest shall be calculated from the due date of payment of the said retirement benefits. The writ petition is allowed, without, however, any order as to costs. The amount of interest shall be calculated from the due date of payment of the said retirement benefits. The writ petition is allowed, without, however, any order as to costs. Petition allowed