Gauhati High Court
Alfatun Nessa Barbhuiya vs The State Of Assam And 5 Ors on 7 January, 2025
Page No.# 1/11
GAHC010116242018
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3851/2018
ALFATUN NESSA BARBHUIYA
W/O. LT. SHAWKAT ALI BARBHUIYA, R/O. RONGPUR PART-III, P.O.
SAHABAD, DIST. HAILAKANDI, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
THROUGH- THE PRINDIPAL SECRETARY, TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY.
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
JURIPAR
PANJABARI
GHY.
3:THE CHIEF EXECUTIVE OFFICER
HAILAKANDI ZILLA PARISHAD
P.O. AND DIST. HAILAKANDI
ASSAM.
4:THE SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI
5:THE DIRECTOR OF PENSION
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ASSAM
HOUSEFED COMPLEX
LAST GATE
DISPUR
GHY.
6:THE ACCOUNT GENERAL (A AND E)
ASSAM
BELTOLA
MAIDAMGAON
GUWAHAT
Advocate for the Petitioner : MR. S C BISWAS, MS A PARVEEN,MS. K L R YANTHAN,MRS J
BORAH
Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, AG
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (Oral)
Date : 07.01.2025
Heard Ms. J. Borah, learned counsel for the petitioner. Also heard Mr. S.
Dutta, learned counsel appearing for the respondents.
2. The petitioner has instituted the present proceeding assailing an order dated
22.04.2013, issued by the Commissioner, Panchayat & Rural Development, Assam
towards effecting recovery of an amount of Rs. 1, 07, 992/- from the pension and
pensionary benefits authorized to her husband late Shawkat Ali Barbhuiya.
3. The brief facts requisite for adjudication of the issue arising in the present
proceeding is noticed as under:-
The husband of the petitioner while working as a Gaon Panchayat Secretary
under the Hailakhandi Zila Parishad had retired from his services on reaching the
age of superannuation w.e.f. 30.04.1998. The husband of the petitioner was not
Page No.# 3/11authorized his pension and pensionary benefits. Subsequently, vide an order
dated 22.04.2013, the respondent no. 2 authorized to the husband of the
petitioner, a provisional pension. The respondent no. 2, vide a separate order
dated 22.04.2013, accorded sanction for drawal of an amount of Rs. 52, 285/- as
provisional DCRG by the husband of the petitioner. However, the provisional
DCRG so sanctioned came to be recovered towards the recoverable dues of the
husband of the petitioner on account of excess drawal of pay and Leave salary.
The amount recoverable from the husband of the petitioner in this connection
was quantified at Rs. 1,07,992/. Thereafter, the respondent authorities finalized
the pension and pensionary benefits of the husband of the petitioner and issued
a Pension Payment Order (PPO) bearing No. ADP/PRI/PPO/GPO/2013/001671.
It is projected in the writ petition that the husband of the petitioner had
approached the respondent authorities for withdrawal of the said order of
recovery and for release of the amount so recovered. However, no steps were
taken by the respondent authorities in the matter. The husband of the petitioner
died on 26.07.2015. The prayers made by the petitioner for refund of the amount
so recovered from the pension and pensionary benefits of the husband of the
petitioner, having not received any response from the respondent authorities; she
has instituted the present proceedings.
4. Ms. J. Borah, learned counsel for the petitioner has submitted that the
husband of the petitioner had retired on 30.04.1998. Thereafter, after a lapse of
considerable period of time i.e. after around 15 years, he was authorized a
provisional pension as well as provisional gratuity vide orders both dated
22.04.2013. It is contended by the learned counsel for the petitioner that after a
lapse of 15 years, the respondent authorities while authorizing to the husband of
the petitioner a provisional DCRG, had indicated therein that an amount of Rs. 1,
07, 992/- was recoverable from his pension and pensionary benefits and
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accordingly, the entire amount of provisional DCRG of Rs. 52, 285/-, as
sanctioned, came to be adjusted against the amount stated to be recoverable
from the pension and pensionary benefits of the husband of the petitioner. The
learned counsel for the petitioner has further submitted that the respondent
authorities could not have after 15 years from the date of retirement of the
husband of the petitioner, proceeded to effect recoveries from the pension and
pensionary benefits due to her husband, inasmuch as, it is a settled position of
law that recovery from the pension and pensionary benefits of a retired employee
and that too after the date of retirement, is not permissible.
5. The learned counsel for the petitioner has further submitted that the
respondent authorities had not disclosed as to the manner in which the
respondent authorities have computed the amount of Rs. 95,600/- and the
amount of Rs. 12,092/- as over drawal of pay and over drawal of Leave salary,
respectively, inasmuch as, neither in the order dated 22.04.2013 nor, in the
affidavit filed by the respondent authorities in the present proceeding, any details
thereof has been spelt out. The learned counsel for the petitioner has further
submitted that the respondent authorities have not avered in the affidavit-in-
opposition so filed that the over drawal of pay as well as over drawal of Leave
salary was on account of any mis-representation and/or fraud committed by the
husband of the petitioner in the matter. In the above premises, the learned
counsel for the petitioner submits that the amount so recovered from the pension
and pensionary benefits of the husband of the petitioner is required to be
refunded to the petitioner.
6. Per contra, Mr. S. Dutta, learned counsel for the respondents has submitted
that the husband of the petitioner was a provincialised Panchayat Employee and
the Pension and Public Grievances Department, vide notification dated
17.03.2011, having extended the benefit of pension and pensionary benefits to
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the employees of the Panchayat Department provincialised under the provisions
of the Assam Panchayat Employees (Provincialisation) Act 1999, the
processing of the pension and pensionary benefits receivable by such employees
was made and accordingly, in respect of the husband of the petitioner, initially a
provisional pension and a provisional DCRG came to be authorized and thereafter,
his pension and pensionary benefits were finalized vide the issuance of PPO
bearing No. ADP/PRI/PPO/GPO/2013/001671.
7. It is the submission of the learned counsel for the respondents that while
scrutinizing the service book of the husband of the petitioner for the purpose of
finalizing his pension and pensionary benefits; it had come to light that the
husband of the petitioner had overdrawn pay to the extent of Rs. 95,600/- and
also overdrawn Leave salary to the extent of Rs. 12,392/- and accordingly, the
same not being entitled to be so drawn by the husband of the petitioner, the
amounts drawn in excess came to be recovered from the pension and pensionary
benefits as authorized to the husband of the petitioner herein, and accordingly, it
is contended that there is no illegality in the recovery so made by the
respondents in the matter.
8. I have heard the learned counsels appearing for the parties and also
perused the materials available on record.
9. The facts as narrated herein above are not in dispute. The husband of the
petitioner had retired from his services as a Gaon Panchayat Secretary, on
reaching the age of superannuation w.e.f. 30.04.1998. The pension and
pensionary benefits of the husband of the petitioner was not finalized for long 15
years and thereafter, vide the orders both dated 22.04.2013, a provisional
pension and a provisional DCRG came to be authorized to the husband of the
petitioner. While authorizing the provisional DCRG of Rs. 52,285/- to the husband
of the petitioner, the respondent authorities by holding that an amount of Rs.
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1,07,992/- was recoverable from the husband of the petitioner on account of over
drawal of pay and also on account of over drawal of Leave salary, the amount of
Rs. 52,285/- as sanctioned as provisional DCRG, came to be recovered. The
balance amount of Rs. 55,707/- was directed to be recovered from the final
pension that would be authorized to the husband of the petitioner. The Director
of Pension, Assam, thereafter, vide PPO No. ADP/PRI/PPO/GPO/2013/001671
finalized the pension and pensionary benefits of the husband of the petitioner
herein. It is the contention of the petitioner that the balance amount of Rs.
55,707/- was so recovered from the pension as authorized to the husband of the
petitioner. Subsequent to the said development, the husband of the petitioner
unfortunately passed away on 26.07.2015.
10. The issue arising in the present proceeding is as to whether the recovery
now sought to be made from the pension and pensionary benefits of the husband
of the petitioner was permissible to be so made in the facts and circumstances as
involved in the present matter.
11. The said issue is no longer res-integra and the Hon’ble Supreme Court in
the case of Colonel B. J. Akara (retired) Vs Govt. of India, reported in
(2006) 11 SCC 709 on the said issue had drawn the following conclusions:-
“27. The last question to be considered is whether relief should be granted against
the recovery of the excess payments made on account of the wrong
interpretation/understanding of the circular dated 7-6-1999. This Court has
consistently granted relief against recovery of excess wrong payment of
emoluments/allowances from an employee, if the following conditions are fulfilled
(vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of
India v. M. Bhaskar and V. Gangaram v. Regional It. Director:
(a) The excess payment was not made on account of any misrepresentation or fraud
on the part of the employee.
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(b) Such excess payment was made by the employer by applying a wrong principle
for calculating the pay/allowance or on the basis of a particular interpretation of
rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back 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. A government servant, particularly one 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. As any subsequent action to recover the excess
payment will cause undue hardship to him, relief is granted in that behalf. But 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 matter being in
the realm of judicial discretion, courts may on the facts and circumstances of any
particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong
payments should not be recovered, as pensioners are in a more disadvantageous
position when compared to in-service employees. Any attempt to recover excess
wrong payment would cause undue hardship to them. The petitioners are not guilty
of any misrepresentation or fraud in regard to the excess payment. NPA was added
to minimum pay, for purposes of stepping up, due to a wrong understanding by the
implementing departments. We are therefore of the view that the respondents shall
not recover any excess payments made towards pension in pursuance of the
circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001.
Insofar as any excess payment made after the circular dated 11-9-2001, obviously
the Union of India will be entitled to recover the excess as the validity of the said
circular has been upheld and as pensioners have been put on notice in regard to
the wrong calculations earlier made.”
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12. The Supreme Court in the case of State of Punjab and Ors. Vs Rafiq
Masih (whitewasher) and Ors., reported in (2015) 4 SCC 334 has laid down
the following principles in this connection on the issue of recovery of amounts
mistakenly paid by the employer to the employee in excess of their entitlement:-
“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.”
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13. The Hon’ble Supreme Court in a recent decision in the case of Thomas
Daniel Vs State of Kerela, reported in (2022) SCC Online SC 536 had
reiterated that the relief against recoveries is granted not because of any right of
the employees but, in equity, exercising judicial discretion to provide relief to the
employees from the hardship that will be caused if the recovery is ordered. It was
further held that if in a given case it is proved that an employee had knowledge
that the payment received was in excess of what was in due or wrongly paid or,
in cases where error is detected or corrected within a short time of wrong
payment, the matter being in realm of judicial discretion, the Court may in the
facts and circumstances of any particular case order for recovery of the amount
paid in excess.
14. Applying the above decisions of the Hon’ble Supreme Court to the facts of
the present case, it is found that the respondents have proceeded to effect the
recovery of the purported over drawn amounts from the pension and pensionary
benefits authorized to the husband of the petitioner after around 15 years from
the date the husband of the petitioner had superannuated from his services. The
said act on the part of the respondent authorities is clearly impermissible. Further,
neither in the order dated 22.04.2013, by which the said recovery was directed to
be so made nor in the affidavit filed by the respondent authorities in the present
proceedings, it has been highlighted that the overdrawn amounts were so drawn
by the petitioner on account of mis-representation and/or fraud committed by
him in the matter. Further, the respondent authorities have not spelt out the
details of such overdrawn amounts.
15. In view of the said position, this Court is of the considered view that the
recovery so directed to be made from the pension and pensionary benefits of the
husband of the petitioner is clearly iniquitous. Accordingly, the Office Order dated
22.04.2013 to the extent it proceeds to make recovery of an amount of Rs. 1, 07,
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992/- from the pension and pensionary benefits of the husband of the petitioner
stands set aside.
16. In view of the conclusions reached by this Court herein above, the recovery
as effected from the pension and pensionary benefits of the husband of the
petitioner of an amount of Rs. 1,07,992/- having been interfered with, the said
amount now be refunded to the petitioner, herein, by the respondent nos. 2 & 5
within a period of 60 (sixty) days from the date of receipt of a certified copy of
this order from the petitioner. In the event the amount now directed to be
refunded to the petitioner, is not refunded, within a period of 60(sixty) days from
the date of receipt of a certified copy of this order, the said amount would carry
an interest of 6% w.e.f. the date of recovery of the said amount, till the date of
its actual refund to the petitioner.
17. At this stage, it is to be noted that this Court while perusing the materials
brought on record, had noticed that in the Pension Payment Order (PPO) bearing
No. ADP/PRI/PPO/GPO/2013/001671, the pension disbursing authority had
computed the pension and pensionary benefits receivable by the husband of the
petitioner by only reckoning a period of 22 years 10 months 29 days of the
tenure of service of her husband for the purpose. The petitioner’s husband had
rendered gross service of 38 years 01 months 29 days however, the entire service
so rendered by the husband of the petitioner was not reckoned for the purpose of
computing his pension and pensionary benefits. The Division Bench of this Court
in the case of State of Assam Vs Syed Md. Fazlay Rabbi [Writ Appeal No.
145/2009 [upheld by the Hon’ble Supreme Court of India, vide order
dated 24.08.2020 in Special Leave to Appeal (Civil) No.(s) 19351-
19360/2010] had held that the entire period of service rendered by a
provincialised Panchayat employee is required to be reckoned as qualifying
service for the purpose of computing his pension and pensionary benefits.
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18. The above issue not being raised in the present proceedings, liberty is
granted to the petitioner herein, to submit a representation before the
respondent no. 2 praying for revision of pension and pensionary benefits as
authorized to the husband of the petitioner herein, vide the above noted PPO and
to compute the pension and pensionary benefits of the husband of the petitioner
by reckoning the service length of the husband of the petitioner w.e.f. 01.03.1960
to 30.04.1968 i.e. for a period of 38 years 01 month 29 days. The respondent
authorities, on receipt of such representation shall consider the same in the light
of the decision of this Court in the case of Syed Md. Fazlay Rabbi (supra) and
extent to the petitioner, the reliefs so claimed by her in her said representation.
Such consideration would now be required to be made by the respondents within
a period of 60(sixty) days w.e.f. the date of receipt of the said representation
from the petitioner.
19. With the above observations and directions, the present writ petition stands
disposed of.
JUDGE
Comparing Assistant