JUDGMENT AND ORDER :

1. Heard Mr. H Das, the learned counsel for the petitioner and Mr. AD Sharma, the learned counsel for the respondents, APDCL.

2. The learned counsel for the APDCL submits that he is yet to receive instructions in the matter and he may be granted some time to file affidavit-in-opposition in the matter. However, considering the controversy the writ petition is taken up for disposal.

3. Mr. Das, the learned counsel for the writ petitioner submits that the petitioner has retired from the post of Subordinate Engineer Grade-II on 29.02.2016. However, the respondent authorities upon coming to learn that the pay fixation of the petitioner and the increments given to him on his promotion to the post on 09.11.1989 was wrongly fixed, a calculation of his pay increment has been made by the respondent authorities on 06.07.2016 (Annexure-VI) and thereafter, vide communication dated 07.10.2016 (Annexure-VII), the Deputy Personnel Manager of the APDCL wrote to the Assistant General Manager, Dhubri Electrical Division, APDCL to prepare a fresh ‘Last Pay Certificate’ and ‘No Due Certificate’ showing the actual liability of the petitioner. In view of the steps taken by the respondent authorities, the learned counsel for the writ petitioner submits that the respondents have contemplated recovery from the petitioner’s retirement benefits. He submits that as the petitioner is a retired employee and he has no responsibility on fixation of his pay and the respondents cannot be allowed to make any recovery on the overdrawn amount.

4. Mr. H Das by referring to the decision of the Apex Court rendered in the case of State of Punjab –vs- Rafiq Masih & Ors reported in (2015) 4 SCC 334, submits that the recovery from an employee after his retirement would not be permissible if such fixation of pay or excess payment is not attributed to the employee. The Apex Court in fact laid down a few situation wherein recovery by the employer would not be permissible. It has been held that recovery from employees belonging to Class-III and Class-IV (Group-C and Group-D) would not be permissible and also recovery from a retired employee who was due to retire within one year from the order of recovery amongst others. He submits that the case of the petitioner is therefore covered by the said decision.

5. Mr. H Das also refers to the decision of this Court rendered in the case of Dipendra Nath Tahkuria & Ors –vs- Assam State Electricity Board & Ors reported in 2015 (4) GLT 32 wherein recovery from the terminal benefits of the petitioner therein was interfered with by relying upon the judgment of the Apex Court Rafiq Masih (supra).

6. I have considered the submissions advanced by the rival parties and perused the relevant materials on record including the decision relied upon by the learned counsel for the petitioner.

7. The petitioner was promoted to the post of E/S Grade-II in the pay scale of Rs.1360-2305/- per month vide order dated 9.11.1989 and after serving in the said post with the pay scale that was fixed, he was given superannuation notice on 29.12.2015 stating that he was due to retire w.e.f. 29.2.2016 and therefore, relevant document was sought from him for preparation of his pension and gratuity. Although he was released on superannuation w.e.f. 29.2.2016, it was discovered that his pay was wrongly fixed and therefore after rectification of his fixation of pay w.e.f. 10.4.1989, the Assistant General Manager (F & A), Audit Wing, APDCL vide communication dated 6.7.2016 informed the Deputy Personnel Manager (respondent No.2) to work out the over drawn amount and record the same in his service book for recovery from his terminal benefits. However, having regard to the decision of the Apex Court as well as the Judgment and order rendered by a co-ordinate Bench of this Court in the case of Dipendra Nath Tahkuria (supra), I am of the considered opinion that since the fixation of pay was done by the respondent authorities, the petitioner cannot be taxed w

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