Allowed

Tosheswar Gogoi v. the State of Assam and 4 Ors.

Gauhati HC3 Feb 2020WP(C)/435/2020

Case brief

AI extract

What is this about?

Writ petitioner sought quashing of a letter directing correction of pay fixation causing pension deduction. Court disposed of petition directing response authorities to process pension proposal without deduction or recovery based on Supreme Court principles regarding hardship and retired employees.

What did the court decide?

Petition disposed of directing respondents to furnish necessary pension proposal without deduction or recovery and to release pension benefits within two months from receipt of papers.

Tosheswar Gogoi Vs the State of Assam and 4… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010015902020

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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) 435/2020

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1:TOSHESWAR GOGOI

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S/O RUPRAM GOGOI, R/O BARHAITING VILL. P.O. BARHOITING, PIN785697, DIST. SIVASAGAR, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS.

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REP. BY COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, THE PENSION DEPTT. SACHIVALAYA, DISPUR, GUWAHATI, ASSAM, PIN-781006

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2:THE DIRECTOR OF PENSION HOUSE FED COMPLEX LAST GATE DISPUR GUWAHATI ASSAM-781006

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3:THE FINANCE AND ACCOUNTS OFFICER DIRECTORATE OF PENSION HOUSE FED COMPLEX DISPUR GUWAHATI-06

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4:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19

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5:THE INSPECTOR OF SCHOOLS SIVASAGAR

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DIST. SIVASAGAR PIN-78566

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Advocate for the Petitioner : MR. B P BORAH

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 03-02-2020

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Heard Mr. B. P. Borah, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned Standing Counsel, Education (Secondary) Department and Mr. B. Deuri, learned Govt. Advocate, Assam.

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Present petition has been filed seeking quashing of the letter dated 24.08.2017 issued by the Office of the Director of Pension, Assam addressed to the Inspector of Schools, Sivasagar in which it was observed that the pay on the date of joining of the petitioner should be Rs.525/- instead of Rs.537/- and necessary corrections of pay is required and the fixation are to be made. Similarly, it has been also mentioned that for allowing Graduate scale of pay from 30.11.1993 against sanctioned post is also required. It has also been mentioned in the said letter that while submission of new pension proposal steps should be taken to see that the deficiency does not recur again which may lead to return of pension proposal.

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This Court is of the view that this is a matter which should be examined by the Inspector of Schools, Sivasagar, who will accordingly, do the needful and submit the appropriate pension proposal.

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It is however, made clear that while submitting the new pension proposal of the petitioner, there cannot be deduction on account of alleged wrong fixation of pay scale which had occurred while the petitioner was serving as an Assistant Teacher of Desang Dhai Ali High School under the establishment of Inspector of Schools, Sivasagar. Moreover, the petitioner has also retired from service on 29.02.2016, more than a year before the aforesaid letter dated 24.08.2017 had been issued.

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This Court holds so in view of the principles adopted by the Government of Assam issuing the Office Memorandum dated 14.06.2019 in terms of the decision rendered by the Hon’ble Supreme Court in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc. in CA No. 11527 of 2014 (Arising out of SLP No. 11684 of 2012) decided on 18.12.2014.

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In the said Office Memorandum dated 14.06.2019, it has been held that under the following circumstances recovery may not be made:

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“ 4. The Hon’ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly made by the employer, in excess of their entitlement, has summarized 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 IV service (for 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 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 for outweigh the equitable balance of the employer’s right to recover.”

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This Court is of the view that the case of the petitioner is covered by Para 4(ii) of the aforesaid Office Memorandum dated 14.06.2019.

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Accordingly, the present petition is disposed of directing the respondent authorities, more particularly, respondent No. 5, the Inspector of Schools, Sivasagar to furnish the necessary pension proposal of the petitioner without effecting any deduction or directing for any recovery on account of alleged wrong fixation of pay scale of the petitioner, which

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exercise shall be undertaken within a periods of 45 days from the date of receipt of a certified copy of this order and thereafter, the pension authority shall release the pensionary benefits of the petitioner within a further period of 2 (two) months from the date of receipt of the necessary pension papers from respondent No. 5, the Inspector of Schools, Sivasagar.

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JUDGE

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Comparing Assistant

Tosheswar Gogoi v. the State of Assam and 4 Ors.

Case brief

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Tosheswar Gogoi v. the State of Assam and 4 Ors.

Case brief

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