[Excess Service] No Recovery From Employee In Absence Of Misrepresentation Regarding Date Of Superannuation: Gauhati High Court

The Single Judge bench of Justice Devashis Baruah observed:

“it has been admitted that it was on account of oversight that the date of superannuation was recorded in the Superannuation Register as 31.12.2015 for which the Superannuation Notice was not issued to the husband/father of the petitioners. The said clearly shows that it was the obligation of the respondent authorities to issue the Superannuation Notice.”

“On the other hand, the respondent authorities allowed the husband/father of the petitioners to work and took his service for this period and now by their impugned actions have recovered the amount paid to the husband/father of the petitioners for the said period. This is clearly arbitrary, unreasonable as well as irrational.”, the court held.

The writ petition was filed by the petitioners who are the legal heirs of the deceased employee of APDC, challenging the action of the respondent authorities in deducting an amount of Rs.7,36,614/- on the ground that Late Prasanna Ch. Barman had drawn excess pay and allowances.

The Counsel for petitioners, Mr. K.M. Mahanta submitted that there was no fault on the part deceased employee (husband/father of the petitioners) in inserting the retirement date as 31.12.2015 in the Superannuation Register as also in the fixation of his pay from time to time and superannuation/retirement date was fixed and wrote by the respondent authorities in the service book of the deceased.

It was further submitted that after the death of said employee the authorities now cannot take a decision to deduct any amount from his retirement dues on the ground that the husband/father of the petitioners had overstayed.

On the other hand Mr. S.P. Sharma the counsel for respondents submitted that the respondents were justified in deducting the amount on the ground of overdrawn pay and allowances by the deceased husband/father of the petitioners in as much as per his Service Book, the husband/father of the petitioners was supposed to retire on 31.12.2014. He further submitted that the husband/father of the petitioners had due knowledge of his date of superannuation. However, he kept on working till the time of his death, i.e. till 19.09.2014 and as such the said salary and other emoluments which the husband/father of the petitioners received were recoverable.

The court observed:

“The pensionery benefits is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an ex-gratia payment. It is a payment for past service rendered…this Court is of the opinion that the right to get pension, family pension, retirement gratuity is a continuous cause of action which entitles the pensioner or upon his death, his dependants, the right to the same.”

The bench relied upon the judgment of Supreme Court of India in State of Bihar and Others v. Pandey Jagdishwar Prasad (2009) 3 SCC 117 in which it was held that as the employee was allowed to work beyond his due date of superannuation without raising any objection and in absence of misrepresentation and fraud to be attributed to the employee, set aside the recovery of the excess amount on account of overstay.

The Court stated that the allegation of misrepresentation does not arise taking into account that the respondent authorities were in possession of the Service Book as well as the Superannuation Register.

The court further put emphasis on the judgment of the Supreme Court rendered in the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others (2015) 4 SCC 334 in which the Apex Court has held that recovery from the retired employees, or employees who are due to retire within one year, of the order of recovery would be impermissible in law.

The court held:

“In the instant case, the respondents have resorted to recover and recovered after the death of the husband/father of the petitioners which is a circumstance in the opinion of this Court is far more iniquitous than the circumstances referred to in Rafiq Masih (supra) judgment.”

In this background, the court held the impugned order dated 31.05.2016 issued by the respondents as illegal, arbitrary, iniquitous and violation of the law.

The court directed to reimburse the amount of Rs.7,36,614/- to the petitioners within a period of 30 (thirty) days without interest and further ordered that if the respondents failed to pay the said amount within the period of 30 (thirty) days, in that case, they would be further liable to pay interest at the rate of 8% per annum effect from 17.06.2016 till such date the payment is duly made.

The court also imposed cost of Rs.10,000/- on the respondents on the account of the respondent’s actions, the petitioners have been compelled to approach the Court.

Case Title: On the Death of Prasanna Ch. Barman his legal heirs v. The Assam Power Distribution Company and 4 Ors.

Citation: 2023 LiveLaw (Gau) 21

Coram: Justice Devashis Baruah

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