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2016 DIGILAW 579 (GAU)

Lalit Chandra Dutta v. State of Assam

2016-06-22

MANOJIT BHUYAN

body2016
JUDGMENT : Heard Mr. A. Chetry, learned counsel for the petitioner as well as Mr. L.N. Dihingia, learned counsel representing respondent nos. 1, 2, 3 and 4. Also heard Mr. C. Baruah, learned counsel representing respondent no. 5. 2. The petitioner who entered into service as Lower Division Assistant in the Office of the Divisional Forest Officer (T), Sivasagar Division on 09.04.1985, retired on 05.06.2014. On the date of retirement he was holding the post of Senior Assistant, which is a Class-III post. Controversy arose pursuant to the Order dated 16.01.2015, issued from the Office of the Principal Accountant General (A&E), Assam, whereby the Treasury Officer, Sivasagar was directed to recover an amount of Rs. 6,03,403/- from the arrear and future relief which was due to the petitioner. In fact, the said sum was determined by taking into account the total recovery amount standing at Rs. 19,14,911/-, less what was due to the petitioner standing at Rs. 3,11,508/-. This determination can be traced to the fact that while the petitioner was required to retire from service on 30.11.2011, he had over- stayed until 05.06.2014. This period of over-stay is not on account of deliberate action or misrepresentation made by the petitioner but due to the wrong entry of his date of birth in the Service Book. In the affidavit-in-opposition filed on behalf of respondent no. 4 it is indicated that the then Dealing Assistant in the establishment of Sivasagar Division, Jorhat had recorded the date of birth of the petitioner as 09.04.1955 instead of 01.11.1951. The said date of birth entered in the Service Book remained undisturbed which resulted in the petitioner going on retirement on 05.06.2014. Having regard to the fact that the petitioner had over-stayed in service for the period beyond 30.10.2011, the consequential order was issued from the Office of the Principal Accountant General (A&E), Assam. This fact has also been disclosed in the affidavit-in-opposition filed on behalf of the respondent no. 5 i.e. the Accountant General, Assam. 3. It appears from the above that the over staying in service was not on account of any misrepresentation made by the petitioner or by deliberate suppression of facts. According to the State Respondents, the mistake was made by the then Dealing Assistant, which remained unnoticed and had also escaped the attention of the respondents concerned. 3. It appears from the above that the over staying in service was not on account of any misrepresentation made by the petitioner or by deliberate suppression of facts. According to the State Respondents, the mistake was made by the then Dealing Assistant, which remained unnoticed and had also escaped the attention of the respondents concerned. In fact, for the period beyond 30.10.2011, the respondents had even allowed to petitioner to continue working and was also paid salary. 4. The legitimacy and the right of the Employer to recover the amount on account of over stay in service has received the consideration of the Apex Court in the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334 . In the said case, the Apex Court have held that although the benefit of non-recovery cannot be extended to employees merely because he was not accessory to mistake committed by the employer or was not a party to the furnishing of any factually incorrect information or misrepresentation, however, there may be situations where recoveries by the employer would not be permissible in law. In this respect, it would be apposite to reproduce paragraph 18 of the judgment of the Apex Court: “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. (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.” 5. On the date of retirement, the petitioner was holding the post of Senior Assistant which belongs to Class-III service. The fact also remains that the petitioner retired from service on 05.06.2014 after having served the concerned establishment on and from 09.04.1985. In such a situation and on the submission made on behalf of the petitioner that recovery would result in grave hardship, it would be harsh on the part of the State Respondents to insist on the recovery of the amount for the period of over-stay beyond 30.10.2011. 6. Having regard to the facts above and the law as laid down in State of Punjab and Others (supra) this Court is of the considered view that the Order dated 16.01.2015 issued from the Office of the Principal Accountant General (A&E), Assam is liable to be interfered with, which is accordingly done. Consequent upon interference so made, a direction is made to the respondent no. 5 to recall the Pension Payment Order (PPO) and to that end, the petitioner shall return/deposit the PPO/GPO that have been issued to him before the Treasury Officer, Sivasagar, who in turn shall despatch/return the PPO/GPO to the Office of the Principal Accountant General (A&E), Assam with the necessary endorsement as regards if any payment has been made to the petitioner. The other pensionary benefits payable to the petitioner shall now be calculated having regard to the fact that the petitioner retired from service on and from 05.06.2014. 7. The petitioner shall deposit the PPO/GPO issued to him before the Treasury Officer/Sivasagar within 10(ten) days from today and thereafter the Treasury Officer, Sivasagar shall make the required endorsement and submit the same before the Office of the Principal Accountant General (A&E), Assam within 2(two) weeks thereafter. 8. In view of the above, this writ petition stands disposed of.