Amir Uddin Laskar vs State Of Assam And Ors.

Heard Mr. O Laskar, learned counsel for the petitioner who submits that the petitioner retired from service as Assistant Teacher on 31.12.2013

from the erstwhile Algapur ME School, which after amalgamation, has now been renamed as Monteswar Ali Mazumdar Memorial High School .

The petitioner is aggrieved with the proposal of the respondents to recover asum of Rs.80,871/- from the petitioner’s pension and other

retirement benefits, vide letter dated 23.05.2017, issued by the Office of the Director of Pension and letter dated 20.03.2018, issued by the office of

the District Elementary Education Officer, Cachar, Silchar.

The petitioner’s counsel submits that the proposal for recovery of the allegedexcess pay by the respondents is based on an erroneous

assumption by the respondents that the petitioner’s increment was wrongly given from 01.10.1981 instead of 01.01.1982. He submits that such

assumption made by the respondents is not correct. The petitioner has also submitted representation giving explanation as to how there was no

mistake committed by the respondents in granting him increments w.e.f. 01.10.1981 on the basis of the revision of pay on 01.01.1981. However, the

State respondents have not acted upon the petitioner’s representation till date. He also submits that the petitioner being a Grade-III employee,

there can be no recovery of any excess payment made to the petitioner in view of the law laid down by the Apex Court in the case of State of Punjab

& Ors. â€"vs- Rafique Masih (White Washer) & ors reported in (2015) 4 SCC 334.

Mr. A Deka, learned counsel for the respondent Nos. 2 and 4 and Mr. K Nayak,learned counsel for the respondent Nos. 1 and 3 fairly submit that

the present case is covered by the Judgment of the Apex Court in Rafique Masih (White Washer)Â (supra).

I have heard the learned counsels for the parties.

The letter dated 23.05.2017, issued by the office of the Director of Pensionstates as follows:

“ Sir/Madam

With reference to the above, I am directed to inform you that, while checking the pension proposal in respect of the above named pensioner have the

following deficiency for which this Directorate could not finalize the pensioner benefit. The deficiency/ short coming in the service book/pension paper

may be examined and if found in order appropriate steps may be taken to remove the deficiency.

1) After revision of pay on 1/1/81 he will get his next increment on 1/1/82 instead of 1/10/81, as he was getting scale pay wef 1/1/76 (deficit period).

Excess payment made wef 1/10/81 till retirement is to be recovered. Due & drawn statement may be furnished.

In submission of new pension proposal steps should be taken to see that above deficiency does not recur again leading to return of the pension

proposal.

Service Book in original along with pension paper is returned herewith for needful action. Please return the same after meeting the deficiency/

classification as noted above urgently.â€​

The letter dated 20.03.2018, issued by the Office of the DEO, Cachar, Silcharstates as follows:

 “ With reference to the subject cited above, I have the honour to reforward herewith the Pension Proposal in respect of Sri, Amir Uddin

Laskar, Retd. A.T. of Algapur MW School, after meeting up objections raised vide your letter referred to above as noted below for favour of your

kind perusal and necessary action.

The teacher concened enjoyed the equalisation of pay by enhancing the date of increment from 01/01/1982 to 01/01/1981 in the scale of pay Rs.525-

12-585-Es-15660-Es-2â€"920/- as per ROP/1983 found wrong and subsequent revision of pay was effected . So, it is apparent that there was over

drawals for which requires to be recovered and assess excess drawals in a statement showing the calculation of difference as detected a sum of

Rs.80,871/- (Rupees eighty thousand eight hundred & seventy one ) only (Copy enclose) along with consent letter duly signed by the teacher

concerned is also enclosed herewith for favour of necessary action. “

In the case of Shyam Babu Verma â€"vs- Union of India & Ors , reported in (1994) 2 SCC 521, the Apex Court has held that there can be no

recovery of excess payment of salary and allowances if the same had been done due to the fault of the employer and there has been no fraud or

misrepresentation on the part of the employee.

In the case of Rafique Masih ( supra), the Apex Court has held that where payments have been mistakenly been made by the employer, in excess

of their entitlement, recovery by the employer would be impermissible in law from employees belonging to Class-3 and Class -4 Services (Group C

and Group D). The Apex Court also held that when excess payments have been made for a period in excess of 5 years, before the order of recovery

is issued, no recovery can be made from the employee.

In the present case, the impugned letters mentioned above, clearly shows thatthe respondents’ case is that there was wrong payment of

increment made on 01.10.1981 instead of 01.01.1982. The petitioner had also retired as a Class-3 employee. Assuming that the petitioner was

wrongly given increments from 01.10.1981 instead of 01.01.1982, there is nothing to show that the same had been done due to a fraud or

misrepresentation made by the petitioner. Accordingly, in view of the law laid down by the Apex Court and without going into whether the increments

were rightly paid on 01.10.1981, the respondents are directed not to recover any excess payment made to the petitioner. Accordingly, the State

respondents are directed to process the pension papers of the petitioner. The pension of the petitioner will however be made on the basis of the

correct fixation of pay and the pay scale that he was to receive on the date of his retirement. Consequently, the letters dated 23.05.2017 and

20.03.2018 are set aside.

Writ petition is accordingly disposed off.