Page No.# 1/5 GAHC040015052019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/17/2021 Rajendra Prasad Age: 59 Occupation : Address:RESIDENCE OF SHIV MANDIR NIRJULI PO/PS NIRJULI DIST. PAPUM PARE AP. VERSUS The State of AP and Others Age: 0 Occupation : Address:THROUGH THE COMMISSIONER PWD GOVT. OF AP ITANAGAR AP. 2:THE CHIEF ENGINEER Age: 0 Occupation : Address:PWD WESTERN ZONE GOVT. OF AP ITANAGAR A P. 3:THE SUPERINTENDING ENGINEER Age: 0 Occupation : Address:PWD CAPITAL CIRCLE PWD Page No.# 2/5 GOVT. OF AP ITANAGAR AP. 4:THE EXECUTIVE ENGINEER Age: 0 Occupation : Address:DOIMUKH DIVISION DOIMUKH AP PWD DOIMUKH AP. 5:THE DIRECTOR OF AUDIT AND PENSION Age: 0 Occupation : Address:GOVT. OF AP NAHARLAGUN AP. Advocate for the Petitioner : Jakir Hussain, T Siga,Chanya Bangsia,Ebo Mili,Madan Mili,Sonam Tsomo,Tali Umbey,Aruna Rai,S D Loda,Reken Ingo,Sunil Mow,Petitioner in Person Advocate for the Respondent : GA, Page No.# 3/5 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 27.02.2025 Heard Mr. S. Mow, learned counsel for the petitioner. Also heard Ms. G. Ete, learned Additional Senior Government Advocate appearing for the State respondents. 2. The petitioner was working under Executive Engineer, PWD Doimukh Division and retired from service on 31.01.2020, while he was working as a Work Charge Divisional Mechanic T/C. It is his case that though after retirement his employer i.e., the Executive Engineer, PWD Doimukh Division forwarded all necessary documents along with the service book of the petitioner for the payment of his pensionary benefit along with other benefit, however, the Department of Audit & Pension put an objection that there are some excess drawal by the petitioner and accordingly, the pension has not yet been released. 3. Mr. Mow, learned counsel for the petitioner referring to his additional affidavit, more particularly, a document issued by the Executive Engineer, PWD Doimukh, contends that the said Officer has asked the petitioner to refund excess amount drawn by the petitioner amounting to Rs. 8,30,433/- (Rupees Eight lakhs thirty thousand four hundred thirty-three) only. It was further directed to refund the aforesaid amount through treasury challan in one instalment at the earliest possible. As the petitioner could not deposit such amount being low paid employee and pensioner, the respondents are not releasing the pension of the petitioner. 4. In this regard, Mr. Mow, learned counsel for the petitioner referring to the judgment of the Hon’ble Apex Court in the case of the State of Punjab & Ors., vs. Page No.# 4/5 Rafiq Masih (Whitewasher) submits that the petitioner being a low paid employee cannot be burdened with the recovery inasmuch as the excess payment was made by the employer by mis-calculating his scale of pay. 5. Per contra, the learned counsel for the respondents referring to their affidavit contends that the petitioner was granted scale of pay (Rs. 1200-2040) on 29.05.1991, due to clerical mistake and his actual pay of scale ought to have been calculated @ Rs. 950-1500/- and in view of such clerical mistake, the petitioner was made an excess payment of Rs. 8,30,433/- (Rupees Eight lakhs thirty thousand four hundred thirty-three) only and accordingly, the recovery is sought. 6. Thus, it is clear that the reason of recovery is relatable to an excess payment made to the petitioner by his employer, while mistakenly calculating his scale of pay as determined on 29.05.1991. There is no allegation of any fraud or mis-appropriation or manipulation on the part of the petitioner. It is candidly admitted by the State respondent that the mistake was on their part in calculating the scale of pay and accordingly, the excess payment was made to the petitioner. 7. In Rafiq Masih (Supra), the principle of law that when a low-ranked employee is paid a scale of pay to which the employee is not entitled to, however, by wrong/miss- calculation such payments were made for no fault of such pensioner, the said amount shall not be recovered by the employer was approved. In the case in hand, this Court also cannot ignore the service status of the petitioner who was W/C Mechanic and also cannot ignore that there is no whisper by the employer that it was the petitioner who manipulated or mis-presented in granting him higher scale of pay, rather, as recorded herein above, it is an admitted position that excess payment made was due to wrong calculation. Page No.# 5/5 8. In the aforesaid view of the matter, considering the law laid down in this regard by the Hon’ble Apex Court in the case of Rafiq Masih (supra), the present writ petition stands allowed by setting aside and quashing the impugned decision to recover an amount of Rs. 8,30,433/- (Rupees Eight lakhs thirty thousand four hundred thirty- three) only from the pension of the pensioner. Accordingly, the Executive Engineer i.e., the respondent No. 4. as well as the Director of Audit & Pension i.e., the respondent No. 5 are directed to proceed with the pension proposal of the petitioner without insisting any recovery on account of excess drawal. The regular pension to be paid to the petitioner within a period of 3(three) months from the receipt of a certified copy of this order to be furnished by the petitioner to the respondent Nos. 4 and 5. The writ petition stands disposed of. Parties to bear their own cost(s). JUDGE Comparing Assistant