Allowed

Abdul Kadir Miah v. the State of Assam and 6 Ors.

Gauhati HC2 Feb 2021WP(C)/290/2021

Case brief

AI extract

What is this about?

In a writ petition challenging the return of a pension proposal with a direction to recover excess pay, the Gauhati High Court disposed of the matter noting the employee is retired. The court directed authorities to verify pay scales and calculate pension based on entitlements but held they cannot recover excess emoluments from the pensionary benefits.

What did the court decide?

Respondents directed not to recover any excess emoluments from petitioner's pension; authorities to verify pay scales and calculate correct pension.

Abdul Kadir Miah Vs the State of Assam and 6… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010006402021

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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)/290/2021

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ABDUL KADIR MIAH

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S/O HAZI MD EUNUS ALI MUNSHI, RESIDENT OF VILLAGE RAJAPARA PT II, PO AND PS BAGRIBARI, DIST KOKRAJHAR, BTAD, ASSAM, 783349

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR GUWAHATI 781006

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI 781006

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3:THE DIRECTOR OF PENSION

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ASSAM HOUSEFED COMPLEX DISPUR.GUWAHATI 781006

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4:THE FINANCE AND ACCOUNTS OFFICER

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DIRECTORATE OF PENSION HOUSEFED COMPLEX DISPUR GUWAHATI 781006

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5:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM

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KAHILIPARA GUWAHATI 781019

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6:THE INSPECTOR OF SCHOOLS KOKRAJHAR BTAD ASSAM

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7:THE DISTRICT ELEMENTARY EDUCATION OFFICER KOKRAJHAR ASSAM 78337

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Advocate for the Petitioner : MR J ISLAM Advocate for the Respondent : GA, ASSAM

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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02-02-2021

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Heard Mr. Jahidul Islam, learned counsel for the petitioner and Mr. B. Kaushik, learned Standing counsel, Elementary Education Department for the respondent Nos. 1 & 5. Also heard Mr. R. Barpujari, learned Standing counsel, Finance Department for the respondent No. 2; Mr. S. R. Baruah, learned Government Advocate, Assam for the respondent Nos. 3 & 4 as well as Mr. B. Choudhury, learned Standing counsel, BTC for the respondent Nos. 6 & 7.

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It is stated that since 20.11.1987 petitioner has been serving as an Assistant Teacher in the Nayer Alga M.E. School, Bilasipara, in the district of Dhubri, Assam. In the year, 1995, he was transferred to Ambari Sahi Islamia M.E. Madrassa and again on 18.02.2002, he was transferred to Silbari M.E. School. By an order dated 26.04.2012, petitioner was promoted to the post of Headmaster of said Silbari M.E. School and from the said school he retired from service on 01.04.2020 on attaining the age of superannuation at 60 years.

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The Inspector of Schools, Kokrajhar by its communication No. 76 dated 10.06.2020 submitted the pension proposal of the petitioner along with his relevant papers, service book etc. before the Directorate of Pension, Assam. On verification, the Directorate of Pension found that as on 01.07.2012 pay of the petitioner should have been Rs. 14,800/- instead of Rs. 15,000/- and as such, the Directorate of Pension by its communication No. DP:ADP/2020-21/2020/06/0935 dated 19.11.2020 returned the pension proposal of the petitioner to the Inspector of Schools, Kokrajhar, requesting him to assess the excess payment drawn by the petitioner with the observation that action may be taken

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as per the provisions specified in the para 8 of the Government Office Memorandum dated 14.06.2019. In the said communication dated 19.11.2020, the Directorate of Pension also specified that while submitting new pension proposal of the petitioner, steps should be taken to see that the deficiency specified in the said communication dated 19.11.2020 should not reoccur again, leading to return of the proposal of pension and that Service Book in original along with pension papers of the petitioner returned along with the said letter dated 19.11.2020 should be forwarded again to the said authority so that pension order can be issued to the petitioner.

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After obtaining views from all the administrative departments of the State regarding issue of recovery of excess drawal of emoluments within the entitlements of the employees, specially at the time of finalization of the pension papers of the incumbent and considering the Office Memorandum of the Government of India under No. F. No. 1803/2015-Est, (Pay-I) dated 02.03.2016, the State Government in the Finance Department vide No. Fin (EC-III)/ 1808/2018/2 dated 14.06.2019 issued an Office Memorandum pertaining to recovery of wrongful / excess payment made to the Government employees which as follows:-

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GOVERNMENT OF ASSAM

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FINANCE DEPARTMENT

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DISPUR :: GUWAHATI, 06

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OFFICE MEMORANDUM

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No. Fin(EC-III).1808/2018/2 Dated Dispur. The 14^th June, 2019

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“Subject: Recovery of wrongful / excess payments made to the Government Servants

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Finance Department has received several proposals from the Administrative Departments seeking view on the recovery of excess drawal of emoluments than the entitlements of the employees, especially at the time of finalization of the pension papers of the incumbents.

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In this connection, reference is, drawn to the Govt. of India O.M. F.No.18/03/2015-Estt. (Pay-I) dtd. 2nd March, 2016.

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The issue had come up for consideration before the Hon'ble Supreme Court in the case of state of Punjab & Ors -vs- Rafiq Masih (White Washer ) etc. in CA No. 11527 of 2014 (Arising out of SLP(C) No. 11684 of 2012) and was decided by the Hon’ble Court on 18.12.2014.

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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 payment have mistakenly been made by the employees 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 Class-IV service (for Group 'C' and

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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 lo such an extent, as would for outweigh the equitable balance of the employer’s right to recover.

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All Departments are to act in accordance with the above stipulations while deciding cases of wrongful/excess payments.

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However, in all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc. come to notice, immediate corrective action must be taken.

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In a case like this where the authorities deicide to rectify an incorrect order, a showcause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment. Reasons for the decision should be clearly conveyed so as to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee.

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Whenever any excess payment is made on account of fraud, misrepresentation, collusion, favouritism, negligence or, carelessness, etc. roles of those responsible for overpayments in such cases, and the employees who benefitted from such actions should be identified, and departmental/ criminal action should be considered in appropriate cases.

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However, when the waiver of recovery in the above mentioned situations is considered, Pension and Public Grievances Department is empowered with financial ceiling of Rs.1.00 Lakh (Rupees One lakh) in each individual case where recovery is to be waived, and beyond Rs.1.00 Lakh (Rupees One Lakh) the express approval of Finance Department is to be obtained

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This 0.M, will be applicable to all pending cases of wrongful/excess drawal as on 18.12.2014 (i.e., date of judgment in CA No.11527/2014).”

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Sd/-

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(Samir K. Sinha, IAS)

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Principal Secretary to the Government of Assam

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Finance Department

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It is seen that the said Office Memorandum dated 14.06.2019 of the Finance Department was forwarded to all the Commissioner and Secretaries/Head of the Departments etc. of the State.

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In the communication dated 19.11.2020 of the Directorate of Pension, there is no finding that

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by misrepresentation or any action of fraud or collusion or favouritism of by negligence or by carelessness, since 01.07.2012, the salary of the petitioner was fixed at Rs. 15,000/- instead of Rs. 14,800/-. In the absence of any such findings, it is not known as to why the Directorate of Pension by its said communication dated 19.11.2020 intimated the Inspector of Schools, Kokrajhar to take action against the petitioner as per the provisions specified in ‘Para 8’ of the said Office Memorandum dated 14.06.2019 of the Finance Department, though the said Office Memorandum specifically provided the guidelines and the criteria for recovery of wrongful/excess payment made to the Government employees while collecting their pensions.

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After hearing the learned counsels for the parties and considering the entire aspect of the matter, this writ petition stands disposed of at the motion stage itself with the observation that the Inspector of Schools, Kokrajhar after due verification and examination of the matter, shall determine the correct scale of pay of the petitioner and also the pay that he was entitled to draw as on 31.03.2020 the last month of his service. On the basis of the same, the Inspector of Schools, Kokrajhar, shall determine the exact salary payable to the petitioner in the month of March, 2020 and on the basis of said amount of last pay drawn by the petitioner, his regular pension amount, as entitled by him, shall be calculated by the respondent authorities, on his superannuation from service on 01.04.2020.

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Further, if during the said process of verification, the Inspector of Schools, Kokrajhar and the respondent authorities come to the finding that petitioner has fraudulently drawn the pay Rs. 15,000/since 01.07.2012, the respondents shall be at liberty to take any such action in terms of the said Office Memorandum of the Finance Department dated 14.06.2019, after giving him an opportunity of hearing.

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However, it is made clear that as per the observation made by the Directorate of Pension in its communication No. DP ADP/2020-21/2020/06/0935 dated on 19.11.2020 and considering the fact that the petitioner has retired from service w.e.f. 01.04.2020, the respondents shall not recover any such emoluments and/or excess payment/drawal from the petitioner’s pensionary benefit.

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With the above observation and direction, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Abdul Kadir Miah v. the State of Assam and 6 Ors.

Case brief

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Abdul Kadir Miah v. the State of Assam and 6 Ors.

Case brief

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