Arabinda Dutta Vs the State of Assam and 7 Ors.

The instant petition has been filed under Article 226 of the Constitution of India challenging inter-alia the action of the respondent authorities in purporting to make recovery from the pensionary benefits of the petitioner the amount which was allegedly overdrawn by the petitioner while in service.

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As per the facts projected, the petitioner was serving as Assistant Teacher in the 1126 No. Adalbari Sripur L.P. School, Baksa and he had retired from service on 30.03.2016. While the process of finalizing the pension was on, an objection was raised that the petitioner was allowed to draw regular scale of pay from the date of his joining, i.e., 01.10.1999 instead of the date of passing his basic training i.e., 05.03.2004. Accordingly, a statement has been prepared of overdrawal of an amount of Rs.3,79,610/- (Rupees Three Lakh Seventy Nine Thousand Six Hundred Ten). It is the said action which forms the subject matter of challenge in this writ petition.

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I have heard Shri P.K. Das, learned counsel for the petitioner. I have also heard Shri B. Talukdar, learned Standing Counsel, Elementary Education Department; Ms. R. B. Bora, learned Standing Counsel, BTC and Ms. R.M. Baruah, learned counsel representing the Finance Department.

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Shri Das, the learned counsel for the petitioner has submitted that the impugned action of recovery is absolutely unreasonable and irrational. He submits that the petitioner did not have any role in such grant of regular scale of pay from his date of joining in the year 1999 and accordingly, the attempt to recover the overdrawal from the pensionary benefit is not permitted in law.

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In support of his submission, the learned counsel for the petitioner has placed reliance upon the case of State of Punjab & Others versus Rafiq Masih etc. reported in (2015) 4 SCC 334 wherein the principles have been

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laid down in cases where recovery is sought to be made for overdrawal.

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The learned counsel accordingly submits that the impugned action be interfered with and no deduction be made from the pensionary benefits.

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Per contra, the learned counsel for the respondents have opposed the writ petition and has contended that the amount involves public money which is to be accounted for and therefore the objections raised are genuine and bona fide. They however have fairly conceded that the principles laid down by the Hon’ble Apex Court in the aforesaid case of Rafiq Masih (supra) would apply.

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The rival submissions have been duly considered and the materials placed before this Court have been perused.

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From the materials available on record, it is not in dispute that the communication dated 06.01.2023 issued by the Directorate of Pension clearly reflects that the pension matter could not be finalized because of deficiency / shortcoming in the Service Book of the petitioner. Though the initial order of appointment dated 29.09.1999 had stated that the petitioner would be entitled to a monthly stipend of Rs.900/- (Rupees Nine Hundred), vide the subsequent order dated 25.02.2000, he was allowed to draw salary @ of Rs. 3130/- (Rupees Three Thousand One Hundred Thirty) per month w.e.f 29.09.1999. Upon the retirement of the petitioner when the pension proposal was forwarded, the Directorate of Pension had issued a communication dated 15.11.2017 raising the objection and thereafter there was no communication till 06.01.2023.

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In the case of Rafiq Masih (supra), the Hon’ble Supreme Court has laid down the parameters which are to be followed in the cases of attempt to recover for any excess payment made to an employee. For ready reference, the

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relevant observations are extracted herein 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 herein above, we may, as a ready reference, summaries 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 ClassIV 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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After considering the facts and circumstances and the principles laid down by the Hon’ble Supreme Court, it appears that the present case is squarely covered by the said principles. Accordingly, the impugned action to make the recovery of Rs.3,79,610/- (Rupees Three Lakh Seventy Nine Thousand Six Hundred Ten) from the pensionary benefit of the petitioner is declared to be illegal and invalid and accordingly interfered with and set aside. Consequently, it

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is directed that the pensionary and other post-retirement benefits be released to the petitioner expeditiously. Since the petitioner had retired from service way back in the year, 2016, such process be completed within a period of 2 (two) months from the date of furnishing a certified copy of this order.

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Writ petition accordingly stands allowed.

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Cost made easy.

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JUDGE

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Arabinda Dutta v. the State of Assam and 7 Ors.

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Arabinda Dutta v. the State of Assam and 7 Ors.

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