1. Heard Mr. N. Rajkhowa, learned counsel for the writ petitioner, and Ms. A. Verma, learned Standing Counsel, Finance Department, Government of Assam, appearing on behalf of respondent No. 5. Heard also Mr. C. Baruah, learned counsel for respondent No.4, and Mr. D. Saikia, learned Standing counsel, Department of Health, Government of Assam, appearing on behalf of respondent Nos. 1, 2 and 3.
2. The controversy in this writ petition, filed under article 226 of the Constitution of India, seeking appropriate direction from this court, has arisen out of a decision taken by the respondents to recover, by way of adjustment, a sum of Rs.1,06,400 from the pension and pensionary benefits of the petitioner. The genesis for the adjustment, which is sought to be made, lies in the letter, dated 11.9.2006, issued by the Joint Director of Health Services, Goalpara, which is, being self-explicit, reproduced below:
"GDHS/ESTT/Lab/Tech/06.../Pay fixation was done vide this office IPS dated 16.5.1991, in respect of Sri Akhil Kumar Sarma, 30 Beded Rural Hospital, Abhayapuri, under the establishment of the Chief Medical and Health Officer, Goalpara at Rs. 1185.00 on 22.5.1989, in the revised scale of pay of Rs.1065-20-1225-30-1345-EB-30-1435-40-1635-50-2035-60-2095 per month as per ROP Rules 1990, is hereby modified as it was done wrongly through oversight. The actual correct fixation is Rs. 1,065 on 25.5.1989 instead of Rs. 1185.00 in the revised scale of pay of Rs. 1065-20-1225-30-1345-EB-30-1435-40-1635-50-2035-60-2095 per month, as per letter No. Pen-2/K-42917/L-02/ Health//Bon/05/268 dated 29.8.2005 of the Accounts Officer, office of the Accountant General (A and E), Assam, Maidamgaon, Beltola, Guwahati-29."
3. From a bare reading of the order, dated 11.9.2006, aforementioned, what transpires is that the petitioner's pay was fixed, on 22.5.1989, at Rs.1,185 was Rs.1,065. As the petitioner has been paid more then what he ought to have received due to inadvertent mistake in fixing his scale, the action for recovery of the excess amount, paid to petitioner, has been initiated by the respondents by deducting the excess amount from the petitioner's pension and pensionary benefits.
4. When an employee retires, on superannuation, having received an amount, more than what he ought to have received, because of wrong calculating or wrong fixation of his/her scale, the same cannot be deducted from his pension and pensionary benefits unless the scale or the excess amount was received by the person concerned by means of misrepresentation or by commission of fraud. In the absence of misrepresentation of or fraud being committed, in this regard, by the employee, no amount, which has been paid in excess, can be recovered from such an employee if it was due to mistake on the part of the employer. A reference, in this regard, may be made to the case of Col. B.J. Akkara (Retd.) v. Government of India and Others, reported in (2006) 11 SCC 709, wherein the Supreme Court, clarifying the position of law on this aspect, has observed and laid down as under:
"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 relied against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Salub Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M Bhaskar and V. Gangaram v. Regional Jt. Director):
(a) The excess payment was not made on account of any misrepresentation or fraud of the employee.
(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, 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 payment 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 department. 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."
5. Keeping in view the observations, made in Col. B.J. Akkara (Retd.) (supra), and the directions given, this court of the view that in the facts and attending circumstances of the present case, when it is not alleged that the wrong fixation of pay scale was at the behest of the petitioners, or due to any misrepresentation made by the petitioners, or due to any fraud played by the petitioner, the respondents cannot be allowed to deduct the said sum of Rs. 106,400 from the pension and/or pensionary benefits of the petitioner by way of adjustments or otherwise.
6. In the result and for the reasons discussed above, this writ petition succeeds. The impugned letters of recovery, dated 12.1.2009 (Annexure ‘F') and dated 1
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5.9.2009 (Annexure ‘G'), are hereby set aside and quashed and the respondents are directed to make payment of the said sum of Rs.1,06,400 to the petitioner within a period of three months from the date of receipt of a copy of this order by the respondent No. 2, namely, Director of Health Services, Assam, who shall pass necessary order, in accordance with law, in the light of the observations made above. The petitioner may furnish to the respondent No. 2 a certified copy of this order along with a copy of this writ petition and annexure thereto. 7. With the above observation and directions, this writ petition stand disposed of. 8. Furnish a copy of this order to the learned Standing counsel, Department of Health.