MD Mukhlesur Rahman Vs the State of Assam

Heard Mr. H. Talukdar, learned counsel for the petitioner. Also heard Ms. M.D. Borah, learned standing counsel for the respondent Nos. 1 and 3, being the authorities in the Transport Department; Mr. A. Chaliha, learned standing counsel for the respondent Nos. 2 and 5, being the authorities in the Finance Department; and Mr. R.K. Talukdar, learned standing counsel for the respondent No. 4, being the Accountant General (A&E), Assam.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities to cancel/recall recovery part of the letter dated 03.09.2024, and subsequent recovery of the same by the respondent No. 5 from the pension and DCRG of the petitioner.

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3. The background facts, leading to filing of the present petition, are briefly stated as under:

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“The petitioner was initially appointed as Enforcement Inspector, under Regulation 3(f) of the Assam Public Service Commission Rules, vide order dated 04.02.1993, and his service was regularized, vide notification dated 30.08.2003. He retired on superannuation on 31.08.2023, from the Office of the respondent No. 3/District Transport Officer, Hojai. After retirement, his pension papers and service book were forwarded to the respondent No. 4/Principal Accountant General (A&E), Assam and after going through the same, the respondent No. 4 had found wrong fixation of pay w.e.f. 01.04.2016 to 31.08.2023, and accordingly, vide letter dated

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04.04.2024, returned the pension papers, and thereafter, the respondent No. 3 had corrected the wrong fixation and prepared a statement of excess drawal w.e.f. 01.04.2016 to 31.08.2023 and resubmitted the same before the respondent No. 4, vide letter dated 25.06.2024. Accordingly, the respondent No. 4 had finalized his pension and DCRG, vide its letter dated 03.09.2024, and in the said letter dated 03.09.2024, the respondent No. 4 had directed the respondent No. 5 to recover an amount of Rs. 14,71,394/- and accordingly, the respondent No. 5 had recovered the amount from his pension and DCRG.

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It is the contention of the petitioner that recovery from a Grade-C employee is impermissible under the law as the same was detected after lapse of more than 5 years of overdrawal and that the petitioner is not at all responsible for the same, and he has never misrepresented towards the wrong committed by the authority.

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Being aggrieved, the petitioner has approached this Court by filing the present petition.”

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4. The respondent No. 3 has filed affidavit-in-opposition, wherein it is stated that the petitioner was well aware of the excess drawal from 01.04.2016 to 31.08.2023, and that the petitioner was discharging his duty as In-charge District Transport Officer (DTO) from 18.07.2019 to 29.10.2019, and again he was the DTO, Hojai from 14.11.2022, till his superannuation from service. It is also stated that the petitioner was the over all in-charge of the Office and he himself was the custodian of the service book and other relevant documents and had clear knowledge about the excess drawl of an amount of Rs 14,71,394/-, and that Annexure-A of the writ petition clearly shows that the present petitioner had full knowledge about the excess drawal.

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4.1. It is further stated that the post of Enforcement Inspector falls under Class-II as per Government Notification No. TMV.259/88/pt/152, dated 07.10.2003, and that on 04.04.2024, a letter was issued from the Office of the Principal Accountant General, Assam regarding re-examination of fixation of pay structure of the petitioner and as per the observation and instructions, the process of recovery of excess payment was done.

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5. The petitioner has filed his reply to the affidavit-in-opposition filed by the respondent No. 3, wherein it is stated that the respondent No. 3 in his affidavitin-opposition has knowingly misguided this Court by stating that the petitioner was well aware of the excess drawal being the In-charge DTO and he was custodian of his service book and other documents, and that he joined in Hojai as In-charge DTO on 18.07.2019 and served as In-charge DTO up to 29.10.2019. It is also stated that recovery is not permissible after retirement in view of the decision of Hon’ble Supreme Court, and that he was unaware of the excess drawal of money, as during his service period, no intimation was received from the competent authority, and that before passing any order of recovery, a clear and unambiguous notice must be provided to the person concerned, detailing the charges, the reasons for the proposed recovery action etc. It is further stated that the petitioner is suffering from kidney diseases and he needs better medical treatment, and he could not take better treatment for his financial constraint due to recovery from his pensionary benefits. Under such circumstances, it is contended to allow this petition.

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6. Mr. H. Talukdar, learned counsel for the petitioner, submits that it is an admitted position that the petitioner was not holding any gazetted post as no pay slip was issued by the Office of the Accountant General, Assam; and Mr. R.K. Talukdar, learned standing counsel for the respondent No. 4 has also

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confirmed the same.

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6.1. Mr. Talukdar also submits that the petitioner had retired from service on 31.08.2023 and a recovery of a sum of Rs. 14,71,394/- was made on 12.11.2024, i.e. after more than one year, and that in view of the decision of Hon’ble Supreme Court in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) , reported in (2015) 4 SCC 334 , recovery from a retired employee is not permissible. Mr. Talukdar also submits that the petitioner had no knowledge about the excess drawal amount and he was not at all responsible for the same, and he has not practiced any fraud, and in that view of the matter, Mr. Talukdar submits that recovery of the aforementioned amount is impermissible in law. Mr. Talukdar further submits that the petitioner is suffering from kidney diseases and on account of recovery from his retirement benefits, he could not take proper treatment, and under such circumstances, it is contended to allow this petition.

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7. On the other hand, Ms. M.D. Borah, learned standing counsel for the respondent Nos. 1 and 3, by referring to paragraph Nos. 6 and 8 of the affidavit-in-opposition filed by the respondent No. 3, submits that the petitioner had full knowledge about the excess drawal amount as he was the In-charge DTO w.e.f. 18.07.2019 to 29.10.2019, and as such, the ratio laid down in the case of Rafiq Masih (White Washer) (supra), is not applicable in the case of the petitioner. Under such circumstances, Ms. Borah has contended to dismiss the petition.

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8. However, Mr. R.K. Talukdar, learned standing counsel for the respondent No. 4 submits that the petitioner was not a Gazetted Officer, for which pay slip was not issued by the Office of the Accountant General, Assam, and that the

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Office of the Accountant General, Assam is not at all responsible for the same.

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9. On the other hand, Mr. A. Chaliha, learned standing counsel for the respondent Nos. 2 and 5 submits that the pay band of the petitioner is of Pay Band-3.

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10. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the pleadings of the parties and the documents enclosed therewith, and also gone through the decision of Hon’ble Supreme Court in the case of Rafiq Masih (White Washer) (supra), and also the letter dated 03.09.2024.

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11. It appears that the petitioner was appointed as Enforcement Inspector under Regulation 3 (f) of the Assam Public Service Commission Rules, vide order dated 04.02.1993, and subsequently, his service was regularized, vide notification dated 30.08.2003. It also appears that wrong fixation of his pay relates to the period w.e.f. 01.04.2016 to 31.08.2023, and indisputably, the excess drawal amount is Rs. 14,71,394/-. From the document produced before this Court today by Mr. Talukdar, learned counsel for the petitioner, it appears that the amount has been recovered from the retirement benefits of the petitioner on 12.11.2024. It further appears that after retirement, the pension proposal of the petitioner was submitted to the respondent No. 4, but the same was returned, vide letter dated 04.04.2024, on account of wrong fixation, and thereafter, the respondent No. 3 had prepared a statement of excess drawal w.e.f. 01.04.2016 to 31.08.2023, and as per Annexure-D of the petition, the excess drawal amount is Rs. 14,71,394/- till 31.08.2023.

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11.1. It also appears from the Annexure-‘E’, the letter dated 03.09.2024, that while issuing P.P.O. No. 917211320269 in favour of the petitioner for a sum of

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Rs. 28,400/-, it has also been stated that:

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“ A certificate from the pensioner’s D.D.O. to the effect of drawal/non-drawal of provisional pension/Family Pension/Gratuity etc. duly countersigned by the respective Treasury Officer may be obtained and the amount shown therein, if any, may be recovered from first payment with proper noting in the Pension Payment Register.”

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12. The excess drawal amount is not in dispute in this petition, but the contention of the petitioner is that he is not responsible for the same and his contention is based upon the decision of Hon’ble Supreme Court in the case of Rafiq Masih (White Washer) (supra), wherein Hon’ble Supreme Court has held as under:

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“ 12 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, 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 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

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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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13. Indisputably, the petitioner was serving as Enforcement Inspector and neither he belongs to Class-III nor Class-IV service, or Group-C or Group-D service. As per paragraph 8 of the affidavit-in-opposition filed by the respondent No. 3, Enforcement Inspector falls under Class-II as per Government Notification No. TMV.259/88/pt/152, dated 07.10.2003, and as such, the situation No. (i) as described in paragraph 12 of the decision of Rafiq Masih (White Washer) (supra) is not applicable in the case of the petitioner. But, indisputably, the petitioner had already retired from service on 31.08.2023, and as such, situation No. (ii), as described in paragraph 12 of the aforesaid decision, to the considered opinion of this Court, would be applicable in the case of the petitioner, which provides that recovery from retired employees, or employees who are due to retire within one year, of the order of recovery is impermissible in law.

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14. Further, it appears that the recovery relates to the period w.e.f. 01.04.2016 to 31.08.2023, and the recovery was made on 12.11.2024, and as such, the situation No. (iii) as described in paragraph 12 of the aforesaid decision, would also to some extent cover the case of the petitioner.

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15. Further, the petitioner is not at all responsible for the fixation of his pay and it was not fixed by him, and there is nothing on record to show that he had

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the knowledge about wrong fixation or he played fraud. Though, in her submission, Ms. Borah, learned standing counsel for the respondent Nos. 1 and 3 has contended that the petitioner had knowledge, yet to a pointed query of this Court, she has submitted that no documentary proof is there to show that the petitioner had knowledge of the excess drawal of amount.

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16. Further, it appears that the petitioner had superannuated on 31.08.2023, and in the meantime, more than two years have elapsed and he is also suffering from kidney diseases and due to recovery of the amount, he could not take proper treatment for the same. In that view of the matter, this Court is of the considered opinion that the recovery, so made from the retirement benefits of the petitioner, is iniquitous and it would outweigh the equitable balance of the employer’s right to recover.

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17. Thus, in view of the given factual and legal matrix, as discussed herein above, this Court finds sufficient merit in this petition and accordingly, the same stands allowed.

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18. By a mandamus of this Court, the respondent authorities are directed to refund the amount i.e. Rs. 14,71,394/- to the petitioner within the period of four weeks from the date of receipt of certified copy of this order.

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19. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of one week from today.

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20. In terms of above, this writ petition stands disposed of.

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JUDGE

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MD Mukhlesur Rahman v. the State of Assam

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MD Mukhlesur Rahman v. the State of Assam

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