Allowed

Jalal Uddin Mazumdar v. the State of Assam and 4 Ors.

Gauhati HC8 Dec 2021WP(C)/788/2021

Case brief

AI extract

What is this about?

In a writ petition, the Gauhati High Court held that excess salary and allowance drawn by a Class-III employee due to wrong pay fixation by the department cannot be recovered. The court directed the respondents to finalize the pension proposal by waiving the erroneous amount within two months.

What did the court decide?

The excess drawal of Rs.2,45,330/- is not to be recovered. The respondents are directed to finalize the pension proposal within two months on the basis of correct pay fixation.

Jalal Uddin Mazumdar Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/4

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GAHC010018962021

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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)/788/2021

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JALAL UDDIN MAZUMDAR

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S/O LATE ANOWAR ALI MAZUMDAR, VILL. NAGDIRGAM, P.O. NAGDIRGRAM, DIST. CACHAR, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI 6

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2:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM

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FINANCE DEPTT. DISPUR GUWAHATI 6

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3:THE COMMISSIONER

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PANCHAYAT AND RURAL DEVELOPMENT DEPTT. ASSAM PANJABARI JURIPAR GUWAHATI 37

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4:THE DIRECTOR OF PENSION

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ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI 6

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5:THE CHIEF EXECUTIVE OFFICER

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Page No.# 2/4

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KARIMGANJ ZILLA PARISHAD P.O. AND DIST. KARIMGANJ ASSAM

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Advocate for the Petitioner : MR. M ISLAM

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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08.12.2021

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Heard Ms. P. Barua, learned counsel for the petitioner. Also heard Mr. M. Nath, learned counsel for the respondent nos.1, 3 & 5; Mr. P. Nayak, learned counsel for the respondent no.2 and Mr. D. Borah, learned counsel for the respondent no.4.

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The petitioner is aggrieved by the decision of the respondents to recover excess drawal of pay amounting to Rs.2,45,330/- in view of wrong fixation of pay w.e.f. 01.01.1981 to 30.04.2019, which had apparently been made due to oversight and clerical errors. The petitioner’s case is that he retired on superannuation on 30.04.2019 as Secretary of Ishabeel Gaon Panchayat under Karimganj Zilla Parishad. The regular pension payable to the petitioner has not been processed due to the overdrawn salary and allowance taken by the petitioner, though no decision has been taken by the respondents to recover the excess amount.

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The petitioner’s counsel submits that the petitioner being a Grade-III employee, no recovery of excess payment can be made due to the wrong fixation of pay by the respondents. She also submits that the letter dated 06.12.2019, issued by the respondent no.5 clearly goes to show that the petitioner did not have any role to pay in the wrong fixation of play made by the respondents. She submits that in terms of the judgment of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer),

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Page No.# 3/4

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reported in (2015) 4 SCC 334, a direction should be issued to the respondents not to recover any excess payment of salary and allowance made to the petitioner. She also submits that the respondent no.5 has written a letter dated 06.12.2019 to the respondent no.3 to move the Finance Department, for according approval for waiving the excess drawal of pay made by the petitioner, to which no reply has been forthcoming till date.

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The learned counsels for the respondents submit that at the time of considering the case of grant of pension to the petitioner, it was noticed that there was some wrong fixation of pay that has been occurred with respect to the salary payable to the petitioner, wherein there has been excess drawal of pay and allowance amounting to Rs.2,45,330/-. To correct the said anomaly, which would enable the respondents to grant regular pension to the petitioner, the Finance Department’s decision is required to waive the said excess drawal amounting to Rs.2,45,330/-.

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Mr. P. Nayak, learned counsel for the Finance Department submits that no order for recovery of the said excess drawal amount of Rs.2,45,330/- has been made, though the process for giving waiver for the excess drawal amount is under process with the P&RD Department as on date.

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I have heard the learned counsels for the parties.

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The letter dated 06.12.2019 issued by the respondent no.5 and addressed to the Commissioner, P&RD Department clearly shows that the excess amount drawn by the petitioner was due to a wrong fixation of pay made by the State respondents, wherein the petitioner had no hand to play. The letter dated 06.12.2019 is re-produced below :

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“Sub : Waive of recovery

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Ref : Letter No.DP-WP(C)/6460/2017/03 Dt.12.08.2018 from Director of Pension, Assam, Housefed Complex, Dispur, Guwahati-06 with a copy forwarded to you.

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Page No.# 4/4

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Sir,

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With reference to the subject cited above, I have the honour to inform you that Jalal Uddin Mazumder, Retd. G.P. Secretary under Karimganj Zilla Parishad. His Pension Proposal already Re-Submitted to your end after necessary rectification.

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In this connection the recovery of excess drawal amount of Rs.2,45,330.00 which has arises from wrong fixation on 01-01-1981 to 30.04.2019 as well as through oversight of clerical errors.

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Now the Finance Department is to be moved regarding order of approval for waive up the excess drawal amount for which a proposal has been sent to the finance department for obtaining the order of the waived up excess amount (copy enclosed) which is required by the Director of Pension, Assam for finalization of pension case the incumbent has been retired from the service on 30.04.2019.

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This is for favour of your kind information and taking necessary action as early as possible.”

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The letter for waiver of the excess drawn amount of Rs.2,45,330/- has been made by the respondent no.5 on 06.12.2019 and till today no final decision has been taken by the respondents in this regard. Accordingly, keeping in view the judgment of the Apex Court in Rafiq Masih (White Washer) (supra), wherein the Apex Court has held that it is impermissible to recover excess money paid to Class-III and Class-IV employees, this Court is of the view that there can be no recovery of the excess drawal amount of Rs.2,45,330/- made by the petitioner, especially when there is nothing to show that the petitioner had any role to play in the wrong fixation of pay made by the respondents. Accordingly, in view of the above reasons, the respondents are directed to finalize the proposal for payment of regular pension to the petitioner, within a period of 2 (two) months from the date of receipt of a certified copy of this order. The pension payable would be on the basis of correct fixation of pay.

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The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Jalal Uddin Mazumdar v. the State of Assam and 4 Ors.

Case brief

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Jalal Uddin Mazumdar v. the State of Assam and 4 Ors.

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