Retired Headmaster challenged recovery order for excess salary drawn due to clerical error. High Court held recovery impermissible post-retirement, relying on Supreme Court pronouncement in Rafiq Masih (2015).
Directs respondent authorities not to insist upon recovery of excess drawal from petitioner's pensionary benefits.
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GAHC010054162022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2188/2022
NAZMUL HASAN RETIRED HEAD MASTER , BAKRIHOWAR, M.E MADRASSA, P.OKALINAGAR, DIST- HAILAKANDI, ASSAM PIN-788801
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6
2:THE DIRECTOR
ELEMENTARY EDUCATION DEPARTMENT ASSAM KAHILIPARA GUWAHATI-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
DISTRICT- HAILAKANDI ASSAM
4:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-6 ASSA
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Advocate for the Petitioner : MR. N H MAZARBHUIYAN
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 11.05.2022
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for recovery of excess drawal be taken.
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observed that at retirement an employee have passed his youth, his needs are far in excess of what they were when he was younger despite that his earnings have substantially dwindled (or substantially reduced on his retirement). In that aforesaid perspective, the Supreme Court observed that recovery would be iniquitous and arbitrary if it is sought to be made after the date of retirement or soon before retirement. It would be justified to treat an order of recovery, on account of wrongful payment made to an employee as arbitrary if the recovery is sought to be made after the employee’s retirement or within 1(one) year from the date of his retirement or superannuation. After observing the same, the Supreme Court summarized the various situations wherein recovery by the employers would be impermissible in law and in that regard, paragraph 18 of the said judgment would be relevant and the same is quoted herein below:
” 18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(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.
(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.”
The proposition No. (ii) as enunciated herein in Paragraph 18 would show
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that recovery from retired employee, or employees who are due to retire within 1(one) year of the order of recovery has been held to be impermissible in law. 6. In the facts of the instant case, the petitioner have retired on 30.11.2016 and the recovery which is being sought to be made in respect to the excess payments now is in the teeth of the proposition of law as enunciated by the Supreme Court in Rafiq Masih (White Washer Supra) and consequently this Court, therefore, directs the respondent authorities not to insist upon the recovery of excess drawal of the salary from the pensionary benefits payable to the petitioner.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether recovery of excess salary drawn during service can be mandated after the employee has retired?
Whether the principle laid down in Rafiq Masih that recovery from retired employees is impermissible is applicable in the present case?
Colour shows how this judgement treated each authority
Rafiq Masih (White Washer)Followed¶26
State of Punjab and Ors. V. Rafiq Masih (White Washer) (2015) 4 SCC 334 · Who else cites this
NAZMUL HASAN RETIRED HEAD MASTER
THE STATE OF ASSAM AND 3 ORS.
DEVASHIS BARUAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
