Recovery of salary for overstay is impermissible where no fraud is established, and the employee was allowed to work without objection from the employer.

JUDGMENT :

KARDAK ETE, J.

Heard Mr. A. Khanikar, learned counsel for the petitioner. Also heard Mr.J.K. Goswami, learned Addl. Senior Govt. Advocate, Assam for respondent Nos. 1, 4, 5, 6, 7, 8, 9 and 10 and Mr. B. Chakaraborty, learned standing counsel, Accountant General, for respondent No. 2. None appears for the respondent Nos. 3 and 11.

2. By filing this writ petition, the petitioner has challenged the impugned letter dated 01.03.2023, issued by the Sr. Accounts Officer (A&E), Assam, whereby, an amount of Rs. 20,91,958/-(Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight only) is sought to be recovered from the petitioner for the period from 30.04.2014 to 28.02.2017 of the pay and allowances of the petitioner and other actions of respondent authorities in seeking recovery of the pay and allowances from the arrear and future relief from the petitioner on account of over stay in service.

3. Briefly put, the case of the petitioner is that he was initially appointed as Dispatch Rider in Assam Police Radio Organization (APRO) on 16.11.1979. Accordingly, he joined his service as Dispatch Rider and submitted his HSLC passed certificate before the concerned authority as proof of his date of birth. The date of birth in fact as per certificate is 27.04.1954. The respondent authorities recorded the date of birth of the petitioner as 17.02.1957 in his service book, thereby the petitioner had to retire on 28.02.2017. He was promoted to the post of Assistant Sub-Inspector (Operator) in the year 1991 then to Sub-Inspector (Operator) in the year 2016.

4. It is the contention of the petitioner that due to wrong entry of his date of birth in service book, the concerned authority allowed him to render his services till 28.02.2017. However, only after his retirement, when he submitted the pension papers before the concerned authority, the mistake is said have been found by the respondent authorities. The Superintendent of Police, corrected the said mistake vide order dated 22.07.2019 after 2 years of his retirement. It is stated in the said order that the date of retirement is corrected as 30.04.2014 instead of 28.02.2017 and as such his overdraw salary will be deducted from pensionary benefits.

5. On the basis of the aforesaid order dated 22.07.2019, the Sr. Accounts Officer in the office of the Principal Accountant General (A&E), Assam, issued the impugned letter dated 01.03.2023 for recovery of Rs. 20,91,958/- (Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight only) from arrear and future relief by showing the total recovery to be made as Rs. 26,07,748/-(Rupees Twenty Six Lakh Seven Thousand Seven Hundred Forty Eight) only.

6. Mr. Khanikar, learned counsel for the petitioner, submits that due to wrong entry of the date of birth of the petitioner by the respondent authorities in the service book, the petitioner had actually worked in the service as Sub-Inspector (Operator) till 28.02.2017. It is only in the year 2019, the respondent authorities allegedly detected the inadvertent mistake of wrong recording of the date of birth of the petitioner after having been allowed him to serve up to 2017, i.e. after 2 years of his retirement.

7. Mr. Khanikar, learned counsel, submits that since the petitioner has submitted his HSLC examination certificate before the concerned authorities at the time of his joining in the service which is recorded as 27.04.1954, the recording of date of birth 17.02.1957 is due to fault of the respondent authorities and not of the petitioner. There is no fraud or manipulation on the part of the petitioner in recording his date of birth in service book. Therefore, he submits that the action of the respondent authorities in seeking recovery of Rs. 20,91,958/ (Rupees Twenty Lakh Ninety One Thousand Nine Hundred and Fifty Eight only) from the arrear benefits and future relief of the petitioner cannot be made as the petitioner has already served in the Department for about 2 years and 10 months with