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Gauhati High Court · body

2016 DIGILAW 127 (GAU)

Bhupen Lahon v. State of Assam & 4 Ors.

2016-02-23

MICHAEL ZOTHANKHUMA

body2016
1. Heard Mr. H.K. Mahanta, counsel for the petitioner and Ms. D. Tamuly, counsel for the Accountant General’s office. Also heard Mr. S. Sharma, counsel for the respondent Nos. 2 and 3 and Mr. B. J. Talukdar, counsel for the respondent No. 1. 2. Petitioner’s case in brief is that he was allowed to officiate in the post of Project Director, Inland Fisheries Development Project No. 2750 temporarily in the pay scale of Rs. 1500/- to Rs. 2175/- per month. The said project was for implementation of the World Food Programme. On completion of the said project, the Govt. of Assam implemented various other projects through the Assam Fisheries Development Corporation Ltd. with the petitioner as the Project Director. The petitioner retired on 31.8.2013 as Project Director on attaining the age of superannuation. The petitioner thereafter requested for payment of his retirement benefits. However, due to the audit objection raised by the office of the Accountant General with regard to alleged excess payment of salary to the petitioner, the respondent Nos. 2 and 3 did not disburse the retirement benefits of the petitioner. 3. Petitioner’s counsel submits that the petitioner had been working as Project Director since 1990 in the scale of pay provided in the appointment order till his retirement with subsequent revisions in his pay and the action of the respondent Nos. 2 and 3 in not releasing the retirement benefits of the petitioner is arbitrary and, hence, a direction should be issued to them to pay the retirement benefits of the petitioner. 4. Ms. D. Tamuly, counsel for the Accountant General’s office (respondent Nos. 4 and 5) submits that the officiating promotion of the petitioner as Project Director for the World Food Programme should have been withdrawn with the closure of the World Food Programme on 2.2.98. She submits that due to the Assam Fisheries Development Corporation Ltd. allowing the petitioner to continue as Project Director even after closure of the World Food Programme, excess salary had been paid to the petitioner amounting to Rs. 5,67,951/-. Counsel for the respondent Nos. 4 and 5 submits that the said amount should be recovered from the petitioner. She also submits that the payment of retirement benefits to the petitioner lies solely in the hands of the respondent Nos. 2 and 3 and the respondent Nos. 5,67,951/-. Counsel for the respondent Nos. 4 and 5 submits that the said amount should be recovered from the petitioner. She also submits that the payment of retirement benefits to the petitioner lies solely in the hands of the respondent Nos. 2 and 3 and the respondent Nos. 4 and 5 are only concerned with the alleged excess payment of salary to the petitioner. However, in this regard she submits that the office of the Accountant General (Audit), Assam is reviewing the audit statement made by them earlier and after completion of review of the audit statement regarding excess payment of salary to the petitioner, a final decision will be taken by the respondent Nos. 4 and 5. 5. Ms. D. Tamuly has also submitted that the Accountant General’s office has not given any advice or passed any order for stoppage of payment of pensionary benefits of the petitioner to the respondent Nos. 2 and 3. She submits that the stoppage of payment of pensionary benefits to the petitioner is purely an internal matter of the Assam Fisheries Development Corporation Ltd. and that the office of the Accountant General is no way involved in the matter of stopping or releasing the retirement benefits of the petitioner. 6. Mr. S Sharma, counsel for the respondent Nos. 2 and 3 has produced a letter dated 9.6.2014 written by the Managing Director of the Assam Fisheries Development Corporation Ltd. to the petitioner regarding payment of pensionary benefits, which reads as under: “With reference to the above, I would like to inform you that the Corporation has already processed your matter relating to pension benefit, etc as per the Corporation’s rule. While the matter was processed, it was observed that the A.G Assam has put an observation in the audit report dtd 8-12-2011 asking for recovery of salary etc. paid to some employees engaged in the W.F.P scheme for non-existence of the posts. The matter was examined and replied justifying the payment of salary to such employees. However, the Corporation did not received any final reply inspite of request and personal contact in the Office of the A.G. The Corporation has again requested the said authority vide our letter AFDC.472/2011/397 dt. 13-5-14 to give final reply in view of the retirement of 2(two) officers namely Dr. Bhupen Lahon & Sri Sunil Nath. However, the Corporation did not received any final reply inspite of request and personal contact in the Office of the A.G. The Corporation has again requested the said authority vide our letter AFDC.472/2011/397 dt. 13-5-14 to give final reply in view of the retirement of 2(two) officers namely Dr. Bhupen Lahon & Sri Sunil Nath. However, the Corporation is trying it’s best to pay the benefit to the employees as far as possible. In this regard, the corporation has processed your matter of provident Fund which is non-attachable & finally it is disposed off. The Corporation will be taking steps for other benefits after receipt of reply from A.G., Assam. Regarding the allegation that the Corporation has paid higher grade of pay inspite of instruction from the Govt. of Assam, it may be stated that the Corporation fixed the corresponding scales and grade pay as per ROP, 2010 against the scale, they were holding before revision of pay.”. 7. A copy of the letter dated 9.6.2014 issued by the Managing Director, Assam Fisheries Development Corporation Ltd. is made a part of the record and is marked as Annexure—‘X’. 8. A perusal of Annexure—X shows that the respondent Nos. 2 and 3 have not disbursed the petitioner’s retirement benefits in view of the observation made by the Accountant General, Assam in the audit report dated 8.12.2011 asking for recovery of the excess salary paid to the employees engaged under the World Food Programme and that payment of the same will be made after receipt of answers from the Accountant General’s office on the queries made by the respondent Nos. 2 and 3. 9. I have heard the counsel for the parties. 10. It is an admitted fact that the petitioner has worked as Project Director from 1990 till his retirement on attaining the age of superannuation on 31.8.2013. It is also an admitted fact that the petitioner had been receiving his salary as per the pay scale given in his officiating promotion order and as per the revision of pay scales applicable. Another admitted fact is that the petitioner had been allowed to work in other projects till his retirement as Project Director even after the World Food Project came to an end on 2.2.98. Another admitted fact is that the petitioner had been allowed to work in other projects till his retirement as Project Director even after the World Food Project came to an end on 2.2.98. There has been no order issued by the authority asking the petitioner to be reverted back to his earlier post or asking him to vacate the office of the Project Director prior to his retirement. I am of the view that the petitioner cannot be penalized for the wrongs committed by the Corporation, if any. The authorities have got work done from the petitioner and the recovery of the alleged excess salary without any fraud or misrepresentation being played by the petitioner seems to be arbitrary. However, as the affidavit-in-opposition filed by the respondent Nos. 4 and 5 indicates that the office of the Accountant General, Assam is reviewing the audit report dated 8.12.2011, this Court without going into the merits of the case, deems it proper to dispose off the writ petition with the following directions: (i) The Principal Accountant General (Audit), Assam shall complete the review process with regard to its audit report dated 8.12.2011 within a period of three months from the date of receipt of certified copy of this order. (ii) The respondent Nos. 2 and 3 shall process the retirement benefits payable to the petitioner and complete the same within a period of four weeks from the date of receipt of a certified copy of this order and make payment to the petitioner within a further period of one month. At the time of processing the retirement benefits of the petitioner, the respondent Nos. 2 and 3 shall also take into account the arrear salary payable to the petitioner as per the pay revisions applicable. (iii) The decision taken by the office of the Principal Accountant General (Audit) Assam on the review of the audit report dated 8.12.2011 shall be communicated by the Accountant General (Audit)’s office to the petitioner and the respondent Nos. 2 and 3. 11. It is needless to observe that if the petitioner is aggrieved with the decision made by the office of the Accountant General (Audit) Assam in its review, the petitioner will be at liberty to approach this Court again, if so advised. _