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2022 DIGILAW 373 (GAU)

Mimar Riba S/o Late Tomi Riba v. State of A. P.

2022-04-06

A.M.BUJOR BARUA

body2022
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. R. Saikia, learned counsel for the petitioner and Mr. D. Soki, learned Additional Senior Government Advocate for the respondents no. 1, 2 and 3 being the authorities under the Police Department, Government of Arunachal Pradesh. 2. The petitioner was working as a constable Driver in the Department of Director General of Police and he was retired from service with retrospective effect from 31.01.2019 on superannuation vide order dated 12.10.2020 and corrigendum dated 21.10.2020. The petitioner is aggrieved to the extent that even after the retirement, he has not been paid the pension and other benefits and there is an order for recovery of excess payment dated 09.07.2021. The respondents take the stand that the petitioner had overstayed his service by a period of one year and therefore, there was an excess payment of salary for the said period. According to the respondents, the petitioner ought to have been retired from service on 31.01.2019 but he continued his service up to September, 2020 and therefore, he was not entitled to the salary that was paid for the excess period for which the he had served. As the said dispute has not been resolved, therefore, the petitioner is not paid his pension. 3. Mr. R Saikia, learned counsel for the petitioner relies upon a pronouncement of the Supreme Court rendered in the State of Bihar and Others vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 wherein in paragraphs 23 and 24 thereof it had been held as extracted as below: “23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.” 4. The proposition of law laid down by the Supreme Court in the State of Bihar (supra) goes to show that if an employee had overstayed in service and there was no allegation of any misrepresentation or fraud by the employee resulting in such overstay, and in a situation where the respondent authorities had allowed the petitioner to work and got the work done by him and paid his salary, it would be unfair at a later stage to deduct the said amount of salary paid to him. 5. As the proposition has been settled by the Supreme Court what remains now is for the respondent authorities to arrive at a conclusion as to whether the overstay of the petitioner was because of some misrepresentation or fraud committed by him resulting in his overstay in service. If the respondent authorities are of the view that there was a misrepresentation or fraud committed by the petitioner, a reasoned order thereof be passed by giving the petitioner an opportunity of hearing. If the respondents are of the contrary view that there was no misrepresentation or fraud committed by the petitioner, in such event the salary paid to the petitioner for the period from February, 2019 up to September, 2020 be not recovered. In doing so, the respondents shall also verify as to whether the petitioner had actually worked for the said period or not. But however, the decision of recovery of the salary paid for the said period cannot be a reason for not paying the pension to the petitioner which he is otherwise entitled under the law. 6. In doing so, the respondents shall also verify as to whether the petitioner had actually worked for the said period or not. But however, the decision of recovery of the salary paid for the said period cannot be a reason for not paying the pension to the petitioner which he is otherwise entitled under the law. 6. As provided by the Supreme Court in paragraph 30 of the judgment of State of Bihar (supra), the pension shall be paid on the basis of scale of pay that the petitioner was entitled on January, 2019 i.e. the date on which according to the respondents, the petitioner would have otherwise retired from service. The pensionery benefits be processed and paid to the petitioner within a period of six weeks from the date of receipt of certified copy of the order. 7. As regards the decision of the authorities regarding the refund of the salary paid to him for the alleged period of overstay, the said decision be taken within a period of three months from the date of receipt of certified copy of the order and if necessary by giving the petitioner an opportunity of hearing. 8. Writ Petition stands allowed as indicated above.