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2016 DIGILAW 1147 (GAU)

Dulal Chandra Baruah v. State of Assam

2016-12-19

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Shri B.K. Das, learned counsel for the petitioner. Also heard Shri A. Choudhury, learned counsel appearing on behalf of respondent No.7 and 8, Shri R. Borpujari, learned counsel appearing on behalf of respondent Nos. 5 and 6 and Shri S.P. Bhattacharjee, learned counsel appearing for the respondent Nos. 1 to 4. 2. The petitioner who was serving as the Headmaster in the No.547 Ruhagaon Adharsha L.P. School had superannuated from service w.e.f 31.10.2011. After the petitioner had superannuated from service, the Finance & Accounts Officer in the office of the Director of Pension, Assam vide letter dated 08.11.2013, (Annexure-3) to the writ petition addressed to the Deputy Inspector of Schools, Dhakuakhana had informed that the pay of the petitioner as on 01.01.1987 in the scale of pay of Rs. 535-15-585-15-660-20-920, is to be fixed at Rs.630 instead of Rs. 660 per-month with DNI on 01.09.1987. It has also been mentioned in the letter that the excess payment made may be recovered. The pension order of the petitioner was issued under the signature of Treasury Officer, Dhakuakhana, Sub-Treasury wherein, it is provided that "less recovery of over pay allowance Rs. 1,51,763/-". 3. Being aggrieved with such recovery from the pension payable to the petitioner, the petitioner has preferred this writ petition. The law pertaining to, whether recovery from pension towards over payment made during the tenure of service can be made has been settled by the Apex Court in the case of Shyam Babu Verma and Ors. v. Union of India and Ors. Reported in (1994) 2 SCC 521 and also in the case of State of Punjab and Ors. v. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 . In paragraph 11 of Shyam Babu Verma and Ors. (Supra) it has been held that if an employee receives a pay scale which is higher than what he is entitled to, but because of no fault of theirs, it shall be just and proper not to recover any excess amount which has also been paid to them. Paragraph-11 of the said judgment is quoted herein below :- "11. Although we have held that the petitioners were entitled only to the pay scale of Rs. Paragraph-11 of the said judgment is quoted herein below :- "11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to 1 (1993) 1 SCC 539 : 1993 SCC (L&S) 221 : (1993) 23 ATC 657 the fault of the respondents, the petitioners being in no way responsible for the same." 4. In the case of Rafiq Masih (White Washer) (supra) in paragraph 18, it has been held by the Apex Court 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. Accordingly, it has been held that in certain situations as incorporated therein, it would be impermissible in law to make recovery from the employees belonging to Class-III and Class-IV service. It has also been held in the case of Rafiq Masih (Supra) that in any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be inequitous or harsh or arbitrary to such an extent, so far as it would outweigh the equitable balance of the employer's right to recover, such recovery would be impermissible under the law. 5. In the instant case, the respondent authorities have not pointed out any reason that the fixation of pay of the petitioner at Rs.660/- instead of Rs.630 was made because of any fault on the part of the petitioner. 6. In such view of the matter, this Court is of the view that the case of the petitioner is covered by the law laid down by the Apex Court in the case of Shyam Babu Verma and Ors. 6. In such view of the matter, this Court is of the view that the case of the petitioner is covered by the law laid down by the Apex Court in the case of Shyam Babu Verma and Ors. (Supra) and Rafiq Masih (White Washer) (supra) and, accordingly, the amount of Rs. 1,51,763/- sought to be recovered from the pensionary benefit of the petitioner is not sustainable. 7. Accordingly, the writ petition is allowed and the impugned letter dated 08.11.2013 from the Finance & Accounts Officer in the office of Director of Pension, Assam whereby, it had been directed that excess payment made to the petitioner be recovered, is set aside. Consequent thereupon, the pension payment order dated 11.06.2015 of the Treasury Officer, Dhakuakhana, whereby, the amount of Rs. 1,51,763/- has been deducted from the pensionary benefit of the petitioner is also set aside. The respondent authorities are directed that the pensionary benefits of the petitioner be paid without insisting upon the deduction of the said amount of Rs. 1,51,763/-. 8. Writ petition is accordingly disposed of.