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2018 DIGILAW 852 (GAU)

DIPAK KUMAR NATH v. STATE OF ASSAM

2018-05-23

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. D.A. Kaiyum, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned Standing Counsel for the Finance Department as well as Mr. N. Sarma, learned Standing Counsel for the Elementary Education Department. 2. The petitioner was appointed as an Assistant Teacher on adhoc basis as per the order of the DI of Schools, Dhubri dated 24.01.1996 and the said appointment was initially on adhoc basis for three months. Although, the initial appointment was for a period of three months, the petitioner continued to remain in service. His matter was placed before the Screening Committee known as Manoharan Committee and thereupon as per the decision dated 10.08.2000 of the Government the services of the petitioner was regularized. 3. But, be that as it may, the petitioner was paid the salary in the pay scale from the date of initial appointment. In between, there was a dispute as regards the seniority of the petitioner with some other teachers of the district which resulted in WP (C) No. 2283/2010 which was preferred by the other teachers. The said writ petition was disposed of by the order dated 24.07.2012 wherein, amongst others, it was provided that regarding drawal of regular scale by the present petitioner prior to 12.08.2002, the Director of Elementary Education, Assam shall look into the matter and take a decision thereof within a period of three months. 4. Based upon the said order of 24.07.2012, the Director of Elementary Education, Assam had passed the order dated 13.05.2014 wherein, a conclusion was arrived that as the initial appointment of the petitioner was on an adhoc basis therefore, he is not entitled to regular scale of pay from the date of initial appointment and the benefit of getting the time scale of pay should be counted only after the Government decision to regularize his services which was taken on 10.08.2000. Accordingly, orders were passed that the difference of the pay paid to the petitioner be recovered. Subsequently, consequential communication dated 22.06.2016 was made by the Deputy Inspector School, Dhubri whereby the Block Elementary Education Officer, Golakganj was requested to take necessary steps for recovery of the excess amount paid to the petitioner. In consequence thereof, the Block Elementary Education Officer, Golakganj had passed the order of 05.07.2016 requiring a refund by the petitioner to the tune of Rs.2,29,614/-. In consequence thereof, the Block Elementary Education Officer, Golakganj had passed the order of 05.07.2016 requiring a refund by the petitioner to the tune of Rs.2,29,614/-. The order of the Director dated 13.05.2014, the communication of the Deputy Inspector of School dated 22.06.2016 and the order of the Block Elementary Education Officer, Golakganj dated 05.07.2016 are assailed in this writ petition. 5. Mr. D. A. Kaiyum, learned counsel for the petitioner relies upon the decision of the Supreme Court rendered in State of Punjab and Others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , wherein paragraphs-18 (i) (iii) provided as under: "(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).. (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).." 6. The law laid down by the Supreme Court as regards the recovery of excess payment made to an employee is being made explicitly clear to the extent that where the payments have been mistakenly made by the employer in excess of the entitlement, the recovery would be impermissible in law, if (i) the employee belongs to Class-III or Class-IV and/or if the excess payment has been made for a period in excess of 5 years before the order of recovery was issued. 7. In this respect the provisions of paragraphs- 1 and 2 of Rafiq Masih case would also be relevant which is as under: "(1). All the private respondents in the present bunch of cases, were given monetary benefits, which were in excess of their entitlement. These benefits flowed to them, consequent upon a mistake committed by the competent authority concerned, in determining the emoluments payable to them. All the private respondents in the present bunch of cases, were given monetary benefits, which were in excess of their entitlement. These benefits flowed to them, consequent upon a mistake committed by the competent authority concerned, in determining the emoluments payable to them. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the employee concerned was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the employee concerned; or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay scales; or for having been granted allowances, for which the concerned employee was not authorized. The long and short of the matter is, that all the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, the employees were in receipt of monetary benefits, beyond their due. 2. Another essential factual component in this bunch of cases is that the respondent-employees were not guilty of furnishing any incorrect information, which had led the competent authority concerned, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the private respondents, in all these cases, was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved monetary benefits to the respondent employees, is totally ruled out. It would, therefore, not be incorrect to record, that the private respondents, were as innocent as their employers, in the wrongful determination of their inflated emoluments." 8. From the reading of paragraphs 1 and 2 it is apparent that the conclusion of the Supreme Court in paragraph 18 was based on the premises that the benefits flowed to the employee of receiving a higher pay was due to a mistake committed by the competent authority in determining the emoluments payable to them and that the payment of higher dues was not in account of any misrepresentation or fraud being committed by the employee. 9. In the instant case, admittedly the petitioner being a Teacher is a Class-III employee and, therefore, paragraphs-18 (i) of Rafiq Masih (supra) is applicable. 9. In the instant case, admittedly the petitioner being a Teacher is a Class-III employee and, therefore, paragraphs-18 (i) of Rafiq Masih (supra) is applicable. Secondly, the excess payment admittedly had been made from the year 1997 when he was initially appointed, and, therefore, these excess payments were made at least five years prior to the order of the Director dated 13.05.2014. 10. Further the order of the Director does not in any manner reveal that the excess payment of salary was made to the petitioner because of any fault on his part. As the order of the Director does not reveal that the excess salary was paid to the petitioner because of any fault of his or because of any manipulation or fraud on his part, it would also have to be construed that the excess payment was made mistakenly. 11. Accordingly this Court is of the view that the claim of the petitioner is covered by the provision of paragraphs-18 (i) and (iii) of Rafiq Masihs case, and therefore, the order of recovery dated 13.05.2014 of the Director and the consequential communication dated 22.06.2016 of the Deputy Inspector and dated 05.07.2016 of the Block Elementary Education Officer are not sustainable. 12. Accordingly, all the three orders/communications are hereby set aside. However, as the Director had not ventured into the question as to whether the excess payment was made to the petitioner because of any fault of his or because of any manipulation or fraud of his part, liberty is granted to the Director, if he so desires, for a further application of mind as to whether the petitioner had any overt or covert contribution of his own resulting in the excess payment, and in doing so to bring the process to its logical end. In terms of the above, this writ petition stands disposed of.