Allowed

Amiyo Kumar Das v. the State of Assam and 6 Ors.

Gauhati HC25 Apr 2022WP(C)/1085/2021

Case brief

AI extract

What is this about?

This writ petition challenged an order directing the petitioner to refund salary drawn during an alleged overstay in service due to a wrongly recorded date of birth. The High Court held the state authorities were negligent and allowed recovery from retirement benefits only in cases of employee fraud. The writ petition was allowed, and the state directed to refund the amount.

What did the court decide?

The respondents are directed to refund the amount recovered from the petitioner's pensionary dues within 10 weeks.

Amiyo Kumar Das Vs the State of Assam and 6… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/9

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GAHC010029482021

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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)/1085/2021

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AMIYO KUMAR DAS

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S/O. LT. MALYA KUMAR DAS, R/O. BISHNU NAGAR, KADAMONI, (NEAR BIJOY KRISHNA MANDIR), P.O. DIBRUGARH, DIST. DIBRUGARH, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-06.

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2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-06.

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3:THE COMMISSIONER

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PANCHAYAT AND RURAL DEVELOPMENT ASSAM JURIPAR SIX MILE GUWAHATI-37.

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4:THE DIRECTOR OF PENSION

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ASSAM HOUSEFED COMPLEX GUWAHATI-06.

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5:THE CHIEF EXECUTIVE OFFICER

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DIBRUGARH ZILLA PARISHAD

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Page No.# 2/9

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P.O. AND DIST. DIBRUGARH ASSAM PIN-786001. 6:THE BLOCK DEVELOPMENT OFFICER

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TENGAKHAT DEVELOPMENT BLOCK P.O. TENGAKHAT DIST. DIBRUGARH ASSAM PIN-786103. 7:THE TREASURY OFFICER

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DIBRUGARH TREASURY P.O. AND DIST. DIBRUGARH ASSAM PIN-786001

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Advocate for the Petitioner : MS. M BARMAN

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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Date of Hearing :25.4.2022

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Date of Judgement/Order : 25.4.2022

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JUDGMENT & ORDER (ORAL)

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Heard Ms. P. Barua, learned counsel for the petitioner and Mr.A. Roy, learned Standing Counsel, P& R.D Department.

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This writ petition is directed against the order dated 22.10.2019 whereby the petitioner was informed that he was due for retirement on 31.1.2018 and therefore he had over stayed in service from 1.2.2018 to 30.9.2019. By the said

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Page No.# 3/9

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order it was further directed to the petitioner to refund the salary drawn by him during the alleged overstay in service.

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The petitioner was appointed as Accountant in the office of the Khowang Development Block under Panchayat and Rural Development Department, Govt. of Assam on 3.6.1986.

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The petitioner’s High School Leaving Certificate reflects that the petitioner was 19 years and 2 months on the 1^st March, 1977. Accordingly, at the entry of the service of the petitioner his date of birth ought to have been recorded as 1.1.1958. However the same was recorded in the Service Book as 1.1.1960. Therefore, the petitioner was supposed to attain age of superannuation on 1.2.2018.

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The petitioner claims that at the entry into the service, he submitted High School Leaving certificate on the basis of which the date of birth has been recorded by his employer in the service book. The petitioner further contends that he has never submitted any wrong date of birth or any documents with manipulated date of birth. It is a specific case of the petitioner that his employer has created the service book and recorded the date of birth wrongly, which the petitioner was not aware. The learned Counsel for the petitioner contends that at the time of entry into the service, the petitioner had no scope either to enter date of birth or had any authority over the service book.

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The Ms. P. Barua, learned Counsel for the petitioner submits that that perhaps wrong calculation was done by the employer of the petitioner on the basis of High School leaving Certificate as the said certificate did not mention

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Page No.# 4/9

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any date of birth rather the age and accordingly, the petitioner was not issued any notice informing him about his date of superannuation and the petitioner continued to work till 2.9.2019, on which date the impugned order was issued by respondent No. 6 releasing the petitioner from service with immediate effect. Accordingly the respondent authorities also directed the petitioners to refund the salary drawn by him during the alleged overstay for 1 year 8 months 22 days.

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Subsequent to the issuance of the impugned order dated 22.10.2019, by a communication dated 14.11.2019, the pension paper of the petitioner was submitted by the Block Development officer with a request to deduct the excess drawl of salary which was quantified at Rs 14,55,875/- . It was further proposed that the said amount is to be adjusted from the pensionary benefit of the petitioner. Till that time the petitioner was not paid provisional pension, provisional gratuity, leave encashment benefit, GIS and GPF and other retirement dues.

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The petitioner further contends that as he was not paid any pensionary benefit and it was intimated to him that until and unless he gives an undertaking allowing his employer to recover the aforesaid amount of Rs. 14, 55,875/- from his pensionary dues, the pension and other pensionary benefit cannot be released. It is submitted by the petitioner that in such a situation and under duress he issued communication dated 25.10.2019, giving an undertaking that the amount recoverable should be recovered from his retirement dues.

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Subsequently the pension and other benefits were released to the petitioner including an amount of Rs.6,87,150/- against cash in lieu of

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unutilized earned leave, after deducting Rs. 14,55,875/- against salary paid during the period of overstay in service.

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The petitioner further contends that he was no way involved in maintenance of service book and as such the petitioner had no role in the alleged over stay in service. He also contends that he had duly forwarded the certificate showing the actual date of birth. However for the reasons best known to the respondent authorities, date of birth was wrongly recorded in the Service Book. The petitioner was also not issued any superannuation notice even after correction of date of birth by the respondent authorities. Therefore the learned Counsel for the petitioner submits that the petitioner cannot be made a victim of fault attributable to the respondent authorities.

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The learned counsel submits that the petitioner was in no way responsible in over staying in service as alleged. For the first time the departmental authorities had informed the petitioner about the date of his retirement on 22.12.2019 by way of the impugned order. Not being the custodian of the records including the service book of the petitioner, he cannot be made liable for recording wrong date of birth and therefore the impugned order of recovery is an illegality, the learned counsel for the petitioner submits.

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Learned counsel for the petitioner further submits that the petitioner had overstayed in service for no fault of his inasmuch as the respondent authorities has extracted the service of the petitioner. The respondent has also not alleged any manipulation or fraud on the part of the petitioner and that being the position, the amount from the salary cannot be recovered, submits the learned counsel Ms.P. Barua.

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Page No.# 6/9

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Relying on the decision of the Hon’ble Apex Court in State of Bihar and others Vs. Pandey Jagadiswar Prasad reported in (2009) 3 SCC 117, Ms. P. Barua, learned counsel for the petitioner strenuously submits that since the petitioner had worked during the period of alleged overstay without any objection being raised from the side of the employer State and employer State got works done by the petitioner, it was not proper to allow deduction from the retiral benefit.

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The case of the respondent State is that the petitioner being the custodian of service book was aware of the fact that his date of birth was wrongly recorded in the service book and his date of birth is 1.1.1958 and not 1.1.1960. Being aware of such date of birth, the petitioner ought to have informed the employer and the petitioner ought to have gone superannuation, the State respondent contends. According to the state, the petitioner has taken advantage of recording of wrong date of birth and over stayed in service and illegally gained the salary and therefore the State authorities are within its competence and jurisdiction to recover the amount from the pensionary benefit of the petitioner, asserts the state respondents.

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The State further contends that the petitioner in no unambiguous term had authorized recovery of such amount by his communication dated 25.10.2019 and therefore, cannot raise objection subsequently.

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Heard learned counsel for the parties and perused the materials available on record as well as the impugned order of recovery.

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The ground for recovery under challenge is that the petitioner being Accountant was aware of wrong recording of date of birth in his service book and he was aware of actual date of birth and therefore the petitioner ought to have intimated his employer and ought to have retired as per his actual date of birth, which the petitioner is aware. The employer has not alleged any misrepresentation or fraud on the part of the writ petitioner in entering wrong date of birth. The fact also remains that the employer has raised the dispute regarding the date of birth at fag end of service of the petitioner.

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The Service Book of the petitioner reflects that the same was inspected and modified at different point of time including incorporation of increments, grant of salary etc. However nobody has noticed the incorporation of wrong date of birth at the entry into the service inasmuch it is not in dispute that the petitioner had submitted his School Leaving Certificate at the time of his employment to show his date of birth and said certificate has not been disputed by the employer. Therefore, in the aforesaid backdrop, this court is of the considered opinion that there are gross negligence and lapses on the part of the authorities concerned in incorporating wrong date of birth in the service Book and not detecting and correcting the same within due and reasonable time. Therefore, in such factual backdrop, the petitioner cannot be allowed to suffer in the manner it has been done by recovery of salary from his pensionary benefits.

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It is the duty of the employer to issue superannuation notice to the employee but such exercise was not done in the present case rather responsibility is casts upon the petitioner. However no material is made available to show that it was the duty of the petitioner to do so. In that view of the

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matter the respondents were not entitled to recover the excess amount disbursed to the petitioner more so when service was extracted from the petitioner. In this connection , this court can gainfully rely on the judgment of the Hon’ble Apex Court in Hari Singh Vs. State of Bihar reported in 2000- 10SCC - 2010 .

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It is no more res integra that when salary is paid to an employee beyond the date of superannuation and such overstay in service is for no fault on the part of the employee, such payment cannot be recovered from retiral benefit. The ratio laid down in Shyambabu Burma vs Union of India reported in (1994) 2 SCC 521 and State of Punjab Vs Rafique Maziz reported in (2015) 4 SCC 334 can gainfully be used for the determination of the said issue.

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From the facts and circumstances and pleadings of the parties, more particularly of the State respondent, it is crystal clear that there is no allegation of commission of misrepresentation or fraud on the part of the petitioner in entering the initial date of birth. That being the position, this court holds that in absence of any allegation of misrepresentation or fraud, no recovery can be made from the retiral benefit from the petitioner, more particularly, when service was extracted from the petitioner without any blemish. Accordingly, direction for recovery issued under the impugned order dated 22.10.2009 is interfered with.

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The respondents are directed to refund the amount recovered from the pensionary dues of the petitioner forthwith and not beyond 10 weeks from the date of receipt of this order. However, it is made clear that calculation of the pensionary benefit should be done from the date of superannuation as per the actual date of birth of the petitioner.

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In terms of aforesaid this writ petition is allowed. However no order as

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to cost.

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JUDGE

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Comparing Assistant

Amiyo Kumar Das v. the State of Assam and 6 Ors.

Case brief

What is this about?

What did the court decide?

Amiyo Kumar Das v. the State of Assam and 6 Ors.

Case brief

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What did the court decide?

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