Judgment & Order (Oral):

1. Heard Mr. K. R. Patgiri, learned counsel for the petitioner. Also heard Ms. S. Sarma, learned Standing Counsel, Health Department, representing the respondent Nos. 1, 4 & 6; Mr. S. S. Roy, learned Government Advocate for the State respondents; Mr. K. K. Medhi, learned counsel for the respondent No. 5 and Mr. A. Chaliha, learned Standing Counsel for the Finance Department.

2. By filing the present writ petition, the petitioner has challenged the sanction letter dated 04.07.2023 issued by the Senior Accounts Officer, Office of the Principal Accountant General (A&E), Assam, pursuant to which an amount of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) was recovered towards overpayment of pay and allowances towards the petitioner’s gratuity and other retiral benefits. The petitioner prays for a direction for the refund of the said amount, on the ground of having been impermissibly recovered.

3. The petitioner was initially appointed as GNM Nurse in the Office of the Chief Matron & Health Officer, Mangaldai, vide order dated 08.11.1992 and was promoted as Sister Tutor at the Nursing Training Centre, Saboti, Lakhimpur, in the year 2012 and finally promoted as Assistant Matron in the year 2018. The petitioner retired on 30.11.2022 on attaining the age of superannuation. After the retirement, the pension papers of the petitioner were submitted to the respondent authorities and were forwarded for release of retirement benefits including the monthly pension. The concerned authority sanctioned the provisional pension as well as provisional gratuity in favour of the petitioner. Thereafter, on scrutiny of the pension papers, the PPO No. 92311305301 was issued in favour of the petitioner. Vide letter dated 04.07.2023, the Senior Accounts Officer, Office of the Principal Accountant General (A&E), Assam, directed the Treasury Officer, Lakhimpur, to recover/adjust the sum of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) from the gratuity arrears and future relief on account of wrong fixation of the pay of the petitioner, pursuant to which the Treasury Officer adjusted the said amount by way of recovery.

4. Mr. K. R. Patgiri, learned counsel for the petitioner, submits that the petitioner, who had retired after serving in a Grade-III post, ought not to have been made to suffer on account of illegal recovery of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) from her retirement benefits due to the fault of the respondent authorities in fixing her pay during her service. Mr. Patgiri, learned counsel, relying on the judgment of the Hon’ble Supreme Court in State of Punjab and Ors. v. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, submits that the respondent authorities could not have recovered and adjusted the aforesaid amount from the retirement benefits of the petitioner on account of a mistake in pay fixation, as the error is entirely attributable to the respondent authorities and there was no misrepresentation or fraud on the part of the petitioner. Therefore, the recovery is illegal, and the respondent authorities may be directed to refund the amount of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) forthwith to the petitioner.

5. Ms. S. Sarma, learned Standing Counsel for the Health Department, while referring to the affidavit filed on behalf of the respondents, submits that pursuant to the sanction order directing recovery of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only), the amount has already been recovered from the petitioner. She submits that it is an admitted position that the service book of the petitioner was maintained by the Drawing and Disbursing Officer (DDO), and upon proper scrutiny and enquiry, it was found that the pay fixation had been incorrectly recorded in the service book, which was a clerical mistake. The same was corrected when it came to the notice of the respondent authorities. She further submits that there is no fault on the part of the petitioner, as there was no misrepresentation or commission of fraud on her part.

6. I have considered the submissions of the learned counsels for the parties and also perused the materials available on record.

7. The petitioner had retired as a Grade-III employee from the Department of Health and Family Welfare, Government of Assam, on 30.11.2022. By the impugned sanction order, the authorities had directed the concerned officers to recover a sum of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) being the alleged overpayment of pay and allowances to the petitioner, pursuant to which the said amount has been recovered.

8. As submitted by the learned counsel for the parties, the overpayment of pay and allowances during the service of the petitioner appears to have arisen due to error in pay fixation, which was solely due to the fault of the respondent authorities and cannot be attributed to the petitioner. While the respondent authorities clearly have the power and authority to correct such mistakes, recovery from the petitioner cannot be justified unless the error is attributable to her.

9. The principles regarding recovery of overpaid allowances from employees, particularly Grade-III & IV employees, have been well settled by the Hon’ble Supreme Court in the case of Rafiq Masih (supra). The relevant paragraph is reproduced hereinbelow:

                   “…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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

                   (i). Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

                   (ii). Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

                   (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.

                   (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.”

10. In the present case, it is seen that the wrong fixation of pay and allowances of the petitioner was due to the fault of the respondent authorities. The mistake of wrong fixation appears to have been not corrected during the service of the petitioner. However, the amount was recovered after the retirement of the petitioner, by adjusting from her retirement benefits, including pension and gratuity, which would not be permissible under the law in view of the fact that the petitioner had retired as a Grade-III employee. Thus, the recovery of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only) from the retirement benefits is not sustainabl and the respondent authorities are liable to refund the said amount to the petitioner.

11. In view of what has been discussed hereinabove, I am of the considered view that the recovery of alleged overpayment from the retirement benefits of the petitioner, arising from the alleged wrong fixation of pay and allowances, is impermissible under the law. Thus, the petitioner is entitled to be refunded the amount recovered from her.

12. Accordingly, it is directed that the respondent authorities, more particularly respondent No. 4, namely, the Director of Health Services, Assam, Hengrabari, Guwahati and respondent No. 6, namely, the Joint Director of Health Services, North Lakhimpur, District Lakhimpur, Assam, respectively, shall refund an amount of ₹1,50,200/- (Rupees One Lakh Fifty Thousand Two Hundred only), which was recovered from the petitioner on account of the alleged overpayment on account of wrongful fixation of pay and allowances, within a period of 1 (one) month from the date of receipt of the certified copy of this order.

13. The writ petition stands allowed and disposed of, in terms above.