Allowed

Tilak Chandra Bora v. the Assam Power Distribution Company Ltd. and 3 Ors.

Gauhati HC10 Jun 2019WP(C)/2701/2019

Case brief

AI extract

What is this about?

This writ petition challenged the recovery of alleged excess payment by APDCL from the petitioner, a Class IV employee. The High Court, relying on the Supreme Court's Rafiq Mashih decision, held that recovery was impermissible for Class IV employees. The court allowed the petition, quashing the recovery order while directing that pension benefits be recalculated based on the corrected date of birt

What did the court decide?

Order dated 26.10.2018 interfered to prevent recovery of alleged excess salary; petitioner directed not to deduct excess payment; pension recalculated.

Tilak Chandra Bora Vs the Assam Power… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010088592019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2701/2019

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1:TILAK CHANDRA BORA

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S/O- LT KESHAB CHANDRA BORA, R/O- VILL- AIBHETI, P.O. AIBHETI, P.S. JAJARI, DIST- NAGAON, ASSAM, PIN- 782002

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VERSUS

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1:THE ASSAM POWER DISTRIBUTION COMPANY LTD. AND 3 ORS. BIJULI BHAWAN, PALTAN BAZAR, GHY-1, ASSAM

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2:THE CHIEF GENERAL MANAGER (D) APDCL (CAR) BIJULEE BHAWAN PANBAZAR GHY-1

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3:THE SUB DIVISIONAL ENGINEER DHING ELECTRICAL SUB DIVISION APDCL CAR DHING

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4:THE STATE OF ASSAM REP. BY THE SECY. TO THE GOVT. OF ASSAM DEPTT. OF POWER ASSAM SACHIVALAYA DISPUR GHY-

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Advocate for the Petitioner : MR A DASGUPTA

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Advocate for the Respondent : SC, APDCL

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 10-06-2019

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Heard Mr. A. Dasgupta, learned senior counsel for the petitioner. Also heard Mr. H. K. Sarma, learned Standing Counsel, APDCL for the respondents.

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This petition has been filed being aggrieved by the recovery of alleged excess payment made in connection with the service rendered by the petitioner.

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The APDCL has clarified that the said recovery has been made pursuant to the subsequent correction of the date of birth of the petitioner on the basis of which the authorities concluded that the petitioner had served more than he is supposed to serve as mentioned in the last paragraph of the impugned order dated 26.10.2018.

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However, it has been held by the Hon’ble Supreme Court in State of Punjab and Ors. Vs. Rafiq Mashih (While Waster), 2015 4 SCC 334 as follows:

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“12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to

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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.

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(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.”

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Since, the petitioner is a Grade IV employee, this Court is also of the view that the case of the petitioner is squarely covered by the decision of the Hon’ble Supreme Court in Rafiq Mashih (White Washer) (supra) . Accordingly, the impugned order dated 26.10.2018 is interfered to the extent of recovery sought to be made for the alleged overstay of the petitioner in service w.e.f. 01.01.2018 till the date of release from service i.e. 31.10.2018.

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Accordingly, the present petition is allowed directing the respondent authorities not to deduct the said alleged excess payment of salary.

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However, his pensionary benefits will be calculated on the basis of the correct date of birth i.e. 01.01.1958 till the date of superannuation.

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JUDGE

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Comparing Assistant

Tilak Chandra Bora v. the Assam Power Distribution Company Ltd. and 3 Ors.

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Tilak Chandra Bora v. the Assam Power Distribution Company Ltd. and 3 Ors.

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