Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 913 (GAU)

Purna Ram Deka v. State of Assam

2018-06-07

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. Heard Mr. KR Patgiri, learned counsel for the petitioner as well as Mr. A Chetri, learned counsel for the Pension and Public Grievance Department. Also heard Ms. RB Bora, learned counsel for the respondent Nos. 5, 6 and 7 and Mr. A Deka, learned counsel for the respondent Nos. 1 and 3. 2. The petitioner's case in brief is that the petitioner retired from service on 31.03.2013, while serving as Assistant Teacher at Mazbat Higher Secondary School, Mazbat in the district of Udalguri under the BTC. 3. The respondents granted petitioner's pension @ Rs. 9,360/- per month. Petitioner, however contends that as the petitioner had been receiving Rs. 21,460/- salary per month for the last ten months prior to his retirement, the petitioner should have been given pension @ 50% of the last ten months' salary, which would be 10, 730/- per month. 4. Mr. A Chetri, learned counsel for the Pension and Public Grievance Department submits that on perusal of the pay scale and pay fixation made in respect of the petitioner, it was found that the petitioner's pay had been wrongly fixed @ 620/- per month instead of Rs. 561/- per month w.e.f. 01.09.1984. Consequently, with the passage of time, the petitioner continued to enjoy the higher fixation of pay, which had been wrongly made on the basis of the wrong fixation of pay made in the year 1984. However, it has now come to light that the petitioner was entitled to the pay scale of Rs. 19,280/- per month for the last ten months before his retirement. Accordingly, 50% of the last ten months of the petitioner's pay, which is Rs. 9,640/- per month has been paid as pension. 5. Mr. A Chetri also submits that in view of the excess pay drawn by the petitioner during his service tenure, the amount of Rs. 3,67,758/- has been recovered from the petitioner's retirement benefits. 6. Mr. KR Patgiri, learned counsel for the petitioner submits that in view of the law laid down by the Apex Court in the case of State of Punjab & Ors. v. Rafique Masih (White Washer) & ors reported in (2015) 4 SCC 334 , no recovery should have been made from the over-drawn salary of the petitioner by the State respondents, as the petitioner was a Grade- III employee. 7. v. Rafique Masih (White Washer) & ors reported in (2015) 4 SCC 334 , no recovery should have been made from the over-drawn salary of the petitioner by the State respondents, as the petitioner was a Grade- III employee. 7. I have heard the learned counsels for the parties. 8. In the case of Shyam Babu Verma v. Union of India & Ors reported in (1994) 2 SCC 521 , the Apex Court has held that the employer cannot make recovery of over-drawn salary from his employee, if the fixation of pay had been wrongly made by the employer and if the same had not been done due to any misrepresentation or fraud played by the employee. 9. In the case of Rafique Masih (supra), the Apex Court has held that where payments have been mistakenly been made by the employer, in excess of the entitlement of the employee, recovery by the employer would be impermissible in law from employees belonging to Class-3 and Class-4 Services (Group C and Group D). The Apex Court also held that when excess payments has been made for a period in excess of 5 years, before the order of recovery is issued, no recovery can be made from the employee. 10. In the present case, the wrong fixation of pay having been made in the year 1984, the State respondents cannot be allowed to make recovery of any excess/overdrawn salary of the petitioner due to the mistake committed by the State respondents, which was not due to any misrepresentation or fraud played by the petitioner. Also the petitioner retired as a Class-III employee. However, as held by the Apex Court, a mistake cannot confer any right upon anyone. Accordingly, the fixation of pension and payment of pension as per the correct fixation of pay/ entitlement of the petitioner will have to be made @ Rs. 9640/- per month. However, as the recovery of Rs. 3,67,758/-was impermissible in law, the said amount will have to be repaid to the petitioner within a period of 6(six) weeks from the date of receipt of a certified copy of this order by respondent Nos. 4 and 9. 11. Writ petition is accordingly disposed of.