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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM , NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KARDAK ETE, J
Dilip Kumar Pathak S/O Late Subodh Chandra Pathak – Appellant
Versus
State of Assam – Respondent
JUDGMENT & ORDER :
KARDAK ETE, J.
Heard Mr. N.N.B Choudhury, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Addl. Advocate General, Assam, for respondents No. 1-5, Mr. P. Nayak, learned Standing counsel, Finance, for respondents No. 6 & 9 and Mr. C. Baruah, learned Standing Counsel for the Accountant General, for 7 & 8.
2. The challenge made in this writ petition is to the order No.PRD- 12/180/2017-PRD(B)/75 dated 20.04.2018 issued by the Commissioner & Secretary to the Govt. of Assam, Panchayat and Rural Development Department, by which, an amount of Rs.7,12,342/-(Rupees Seven Lakh Twelve Thousand Three Hundred and Forty Two) only is sought to be recovered from the petitioner on account of payment of pay and allowances drawn during over stay for the period 31.01.2016 to 28.02.2017 from D.C.R.G. The petitioner also prays for a direction to pay/release regular pension and other retirement benefits to the petitioner without making any recovery.
3. The case of the petitioner, briefly put, is that he was initially appointed as Extension Officer in the Panchayat and Rural Development Department on 01.11.1985 and was promoted to the post of Block Development Officer (B
Recovery of excess payments is impermissible if it causes undue hardship, especially when no fraud is involved.
Recovery of salary for overstay is impermissible where no fraud is established, and the employee was allowed to work without objection from the employer.
Recovery of excess salary from a retired employee is impermissible when no fraud is established, and the employee worked without objection for an extended period.
Recovery from the salaries for the period of overstay was unjustified due to the petitioners' good faith service and the authorities' failure to detect discrepancies in their dates of birth.
Recovery from pensionary benefits is impermissible when the employee has rendered service during the overstayed period without prior notice of the excess payments to be recovered.
Recovery of excess payments made without employee fault is impermissible, especially if it causes hardship.
The petitioner's silence regarding the wrong date of birth did not amount to fraud, and the recovery of salary for the period of overstay was interfered with.
Service - Retirement benefits - Not entitled for - Petitioner appears to be not bona-fide and a wrong doer cannot claim the privilege of his own wrongful conduct and it will be wholly unjustified one....
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