High Court restrained recovery of excess salary erroneously paid to Class-III staff nurses for 16 years based on Supreme Court precedents allowing exemption for lower rungs of service.
Impugned Office Order dated 25.06.2021 set aside; amounts deducted to be reimbursed to petitioners.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010225912021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/258/2022
LAXMI DEVI @ LAKHIMI DEVI W/O LATE BUL BARTHAKUR,
RESIDENT OF VILLAGE GHARPARA CHUBURI, LALIT BARUAH PATH, PO TEZPUR, DIST SONITPUR, ASSAM 784001
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI
2:THE DIRECTOR
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM
3:THE CHIEF ADMINISTRATIVE OFFICER
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG) DEEN DAYAL UPADHAYA MARG NEW DELHI 11012
Page No.# 2/12
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C)/5225/2021
ESTHER GEORGE C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM
VERSUS
THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVERNMENT OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI-110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
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Linked Case : WP(C)/5239/2021
PURNIMA NARZARY W/O LATE GOKUL DEORI
RESIDENT OF LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR
LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER
LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5433/2021
MANJUMA HAZARIKA
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W/O SRI PRASANNA SARANIA C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR
LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5577/2021
TOLLOTTOMA BRAHMA W/O KULDIP BASUMATARY D/O SACHINDRANATH BRAHMA C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH
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TEZPUR-784001 DIST-SONITPUR ASSAM
VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVERNMENT OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI-110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5541/2021
JOYSHREE DUTTA W/O SRI BIJIT KUMAR GOGOI C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM VERSUS
THE UNION OF INDIA AND 3 ORS
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THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR
LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5271/2021
DHARMEN NAIDU S/O LATE DHARAMDAS NAIDU PERMANENT RESIDENT OF FULBARI TEA ESTATE PO BALIPARA DIST SONITPUR ASSAM 784101 PRESENTLY RESIDING AT LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM
VERSUS
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THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR
LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5269/2021
KALPANA HAZARIKA W/O SRI ACHYUT BORAH R/O VILL. SANTIBAN DEWRIGAON P.O. KETEKIBARI DIST. SONITPUR ASSAM PIN 784154
VERSUS
THE UNION OF INDIA AND 3 ORS THROUGH THE SECY. TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE
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NEW DELHI
2:THE DIRECTOR
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM. 3:THE ADMINISTRATIVE OFFICER
LOKOPRIYA GOPINATH BORDOLOI REGIOAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM. 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA
DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 -----------Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
13.09.2022
Heard Mr. B.D. Das, learned Senior Counsel, Mr. S.C. Biswas, learned counsel and Ms. P.P. Hassan, learned counsel for the petitioners in all the writ petitions. Also heard Mr. C.K.S. Baruah, learned counsel appearing for the respondent nos.1 to 3, Mr. R.K. Talukdar, learned counsel for the respondent nos.4. Mr. B. Sarma, learned CGC appears for the respondent no.1, 2 & 3 in WP(C) No.5271/2021 and Mr. S.S. Roy, learned CGC appears for the respondent no.1, 2 & 3 in WP(C) No.5239/2021 and WP(C) 5269/2021. Mr. D. Deka, Advocate appears on behalf of Mr. B. Deka for the NEC.
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2 . All the petitions are being disposed of by this common judgment and order, as the issue in all the writ petitions pertain to recovery of excess salary paid to the petitioners. The challenge to the recovery of excess salary paid to all the petitioners is being made in all the writ petitions. The recovery of excess salary is being made by the respondents on the basis of the Office Order No.LGB/Estt/Audit/1948/18/2230 dated 25.06.2021.
3 . Except for the petitioner in WP(C) No.258/2022, who had retired from service on 30.01.2018, all the writ petitioners are still serving as Staff Nurse/Ward Nurse. The grievance of the petitioners is that in view of the wrong fixation of pay made by the authorities since 01.01.2006, the petitioners were apparently given a higher salary than their entitlement, which the petitioners were not aware of. However, the respondents issued the impugned Office Order dated 25.06.2021, wherein a decision had been taken to recover Rs.20,000/from the monthly salary of all the petitioners, which would eventually off-set the excess salary received by them. Accordingly, in terms of the Office Order dated 25.06.2021, Rs.20,000/- has been deducted from the salary of all the petitioners, except for the petitioner in WP(C) No.258/2022, from whom Rs.10,000/- is being deducted from her monthly salary.
4. The counsels for the petitioners submit that all the writ petitioners are holding Grade-III posts and in terms of the judgment of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) , reported in (2015) 4 SCC 334 , the recovery of excess salary paid to the petitioners, due to a wrong fixation of pay made from 01.01.2006 by the respondents, cannot be permitted.
5. The counsels for the respondents fairly submit that the present cases are covered by the judgment of the Apex Court in Rafiq Masih (White Washer)
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(supra), inasmuch as, the wrong fixation of pay had been made from 01.01.2006 and there is nothing to show that the said wrong fixation of pay had been made, on the basis of any fraud or misrepresentation on the part of the petitioners. Further, the petitioners belong to Class-III (Group-C) posts and as such, in terms of paragraph 18 of the judgment of the Apex Court in Rafiq Masih (White Washer) (supra), it would be impermissible to recover the excess salary paid to them.
6. I have heard the learned counsels for the parties.
7. In the case of Shyam Babu Verma & Others vs. Union of India & Others , reported in (1994) 2 SCC 521 , the Apex Court was of the view that recovery after several years of paying the higher pay scale would not be just and proper, as the same was not due to the fault of the employee.
8. In the case of Col. (Retd. ) B. J. Akkara vs Govt. of India & Others , reported in (2006) 11 SCC 709 , the Apex Court has held that restraining recovery of excess payment is granted by courts, not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees from the hardship that will be caused if recovery is implemented. It further held that a Government servant in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. Any subsequent action to recover the excess payment would cause undue hardship to him. The Apex Court further held that where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The Apex Court thus held that the matter being in the realm of judicial
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discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery,
9. In the case of Rafiq Masih (White Washer) (supra), the Apex Court has held that recovery from employees belonging to Class-III & Class-IV service would be impermissible in law, if the excess payment had been made for a period in excess of 5 (five) years.
10. Paragraph 18 of the Rafiq Masih (White Washer) (supra) is reproduced 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:
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(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.”
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11. As can be seen from the judgments of the Apex Court, where there has been excess payment made for a number of years, it would be impermissible for recovery of the same from the Class-III & Class-IV employees. The petitioners herein are Class-III employees and there is nothing to show that the wrong fixation of pay made in the year 01.01.2006, had been made on the basis of any fraud or misrepresentation on the part of the petitioners. There is also nothing to show that the petitioners were aware they were getting a salary beyond their entitlement.
12. In view of the reasons stated above, this Court is of the view that there cannot be any recovery of the excess payment made to the petitioners, due to the wrong fixation of pay made by the respondents 16 years ago. Accordingly, the impugned Office Order dated 25.06.2021 is set aside and quashed, to the extent that it provides for recovery of the excess salary paid to the petitioners. The amount deducted by the respondents should be reimbursed to the petitioners at the earliest.
13. All the writ petitions are accordingly disposed of.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether excess salary recovered from Class-III employees due to wrong fixation of pay payable to petitioners exceeding 5 years can be restrained.
Whether order directing recovery of excess salary made over 16 years from Class-III staff nurses is sustainable.
Whether impugned office order providing for recovery of excess salary is liable to be set aside and quashed.
Colour shows how this judgement treated each authority
State of Punjab and others Vs. Rafiq Masih (White Washer)Followed¶4
State of Punjab and others Vs. Rafiq Masih (White Washer) (2015) 4 SCC 334 · Who else cites this
Shyam Babu Verma & Others vs. Union of India & OthersFollowed¶7
Shyam Babu Verma & Others vs. Union of India & Others (1994) 2 SCC 521 · Who else cites this
Col. (Retd.) B.J. Akkara vs Govt. of India & OthersFollowed¶7
Col. (Retd.) B.J. Akkara vs Govt. of India & Others (2006) 11 SCC 709 · Who else cites this
Laxmi Devi @ Lakhimi Devi W/O Late Bul Barthakur
Union of India
Director Lokopriya Gopinath Bordoloi Regional Institute of Mental Health Tezpur
Chief Administrative Officer Lokopriya Gopinath Bordoloi Regional Institute of Mental Health Tezpur
Comptroller and Auditor General of India
Esther George
Michael Zothankhuma
Comparing Assistant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
