Allowed

Dharmen Naidu v. the Union of India and 3 Ors.

Gauhati HC13 Sept 2022WP(C)/5271/2021

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of multiple writ petitions challenging the recovery of excess salary paid to Class-III staff nurses due to a pay fixation error from 2006. Relying on Supreme Court precedents, the court set aside the recovery direction and ordered reimbursement of deducted amounts, citing impermissibility for low-ranking employees.

What did the court decide?

Impugned Office Order dated 25.06.2021 set aside and quashed; amount deducted reimbursed to petitioners.

Dharmen Naidu Vs the Union of India and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/12

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GAHC010225912021

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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)/258/2022

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LAXMI DEVI @ LAKHIMI DEVI W/O LATE BUL BARTHAKUR,

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RESIDENT OF VILLAGE GHARPARA CHUBURI, LALIT BARUAH PATH, PO TEZPUR, DIST SONITPUR, ASSAM 784001

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VERSUS

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THE UNION OF INDIA AND 3 ORS

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THROUGH THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI

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2:THE DIRECTOR

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LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM

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3:THE CHIEF ADMINISTRATIVE OFFICER

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LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM

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4:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG) DEEN DAYAL UPADHAYA MARG NEW DELHI 11012

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Page No.# 2/12

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Advocate for the Petitioner : MR. S C BISWAS

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Advocate for the Respondent : ASSTT.S.G.I.

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Linked Case : WP(C)/5225/2021

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ESTHER GEORGE C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM

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VERSUS

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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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Page No.# 3/12

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Linked Case : WP(C)/5239/2021

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PURNIMA NARZARY W/O LATE GOKUL DEORI

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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

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2:THE DIRECTOR

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LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR 784001 DIST SONITPUR ASSAM 3:THE ADMINISTRATIVE OFFICER

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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

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Linked Case : WP(C)/5433/2021

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MANJUMA HAZARIKA

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Page No.# 4/12

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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

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2:THE DIRECTOR

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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

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Linked Case : WP(C)/5577/2021

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TOLLOTTOMA BRAHMA W/O KULDIP BASUMATARY D/O SACHINDRANATH BRAHMA C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH

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Page No.# 5/12

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TEZPUR-784001 DIST-SONITPUR ASSAM

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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)/5541/2021

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JOYSHREE DUTTA W/O SRI BIJIT KUMAR GOGOI C/O 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

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Page No.# 6/12

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THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI

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2:THE DIRECTOR

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Linked Case : WP(C)/5271/2021

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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

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VERSUS

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Page No.# 7/12

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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

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2:THE DIRECTOR

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Linked Case : WP(C)/5269/2021

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KALPANA HAZARIKA W/O SRI ACHYUT BORAH R/O VILL. SANTIBAN DEWRIGAON P.O. KETEKIBARI DIST. SONITPUR ASSAM PIN 784154

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VERSUS

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THE UNION OF INDIA AND 3 ORS THROUGH THE SECY. TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE

Page No.# 8/12

NEW DELHI

2:THE DIRECTOR

LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM. 3:THE ADMINISTRATIVE OFFICER

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LOKOPRIYA GOPINATH BORDOLOI REGIOAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM. 4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA

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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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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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13.09.2022

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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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Page No.# 9/12

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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.

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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.

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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.

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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.

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6. I have heard the learned counsels for the parties.

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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.

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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,

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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.

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10. Paragraph 18 of the Rafiq Masih (White Washer) (supra) is reproduced below :

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“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:

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(i) Recovery from employees belonging to Class-III and Class-IV

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service (or Group 'C' and 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 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.

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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.

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13. All the writ petitions are accordingly disposed of.

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JUDGE

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Comparing Assistant

Dharmen Naidu v. the Union of India and 3 Ors.

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Dharmen Naidu v. the Union of India and 3 Ors.

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