Gauhati High Court
Brojendra Kr. Deb. vs State Of Assam And Ors. on 3 January, 2008
Equivalent citations: 2008(1)GLT298
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. Being aggrieved by the proposed recovery of an amount of Rs. 15,214/- from his salary for the month of May, 2006 and for the unexplained delay in finalizing his pensionary benefits, the petitioner is before this Court seeking redress. By order dated 15.6.2007 this Court while issuing notice injuncted the recovery as contemplated by the impugned letter dated 14.5.2007 (Annexure-20 to the writ petition).
2. I have heard Mr. A.M. Borbhuiyan, learned Counsel for the petitioner and Mr. M. Khataniar, learned Standing counsel, Education Department.
3. The affidavit on behalf of the respondents through the Director of Elementary Education, Assam, respondent No.2, having been filed and as agreed to by the learned Counsel for the parties, this petition is being disposed of at the motion stage.
4. The pleaded case of the petitioner in short is that, while he had been serving as the Headmaster of Dudpatil MV school in Cachar District (hereinafter referred to as the 'School'), on 29.11.2003 the Block Elementary Education Officer, Udharbond, Cachar requisitioned his original service records for some official purposes. Eventually, by letter dated 12.5.2006 the said officer, informed the petitioner about his date of retirement to be 31.5.2006 (A.M.). He was thereby directed to hand over the charge of the said office to the senior most teacher of the school. The petitioner in deference to the said direction demitted the office and went on retirement with effect from 31.5.2006.
5. As his retiral benefits were not finalized thereafter, he approached this Court with WP (C) No. 6134/2006 seeking intervention. The said writ petition was disposed of on 13.12.2006 with a direction to the respondents to finalize his pensionary benefits on or before 31.3.2007. Though thereafter an amount of Rs. 1,50,000/- was disbursed to the petitioner, his pensionary benefits were not finalized. On the other hand, by the impugned letter dated 14.5.2007, the Headmaster of the school informed the Block Elementary Education Officer, Udharbond that the petitioner had overstayed in service for the period from 1.5.2006 to 31.5.2006 and a copy of this communication was also sent to the petitioner whereby he was requested to deposit a sum of Rs. 15,214/- as excess amount drawn, with the Treasury. Being aggrieved, the petitioner is before this Court.
6. The Director of Elementary Education, Assam in his affidavit, has pleaded that the petitioner's service book along with that of others who had availed Leave Travel Concession (LTC) were called for by the Vigilance and Anti-corruption Department for the purpose of necessary verifications and therefore the same were forwarded to the authorities thereof. The answering respondent has averred that due to non availability of the service book of the petitioner, he overstayed in service from 1.5.2006 to 31.5.2006 though his actual date of superannuation in terms of the service records was 30.4.2006. It has been contended that the above fact came to light on receipt of the service book of the petitioner from the Vigilance and Anti-corruption Department being requisitioned by the Education Department in terms of the order dated 13.12.2006 passed by this Court in WP(C) No. 6134/2006. The answering respondent has stated that the proposal for recovery of the salary for the period overstayed in service was thereafter mooted. The affidavit however discloses that necessary steps have in the meantime been taken for finalizing the pensionary benefits of the petitioner and that the pension papers have been forwarded to the Director of Pension on 23.7.2007.
7. Mr. Borbhuiyan has argued that as the petitioner had retired from service with effect from 31.5.2006 as ordered by the concerned authority of the department and that as he had no role to play in delaying his retirement, the impugned decision of recovery from his salary for the period 1.5.2006 to 31.5.2006 is untenable in law. As admittedly, the respondent authorities, because of non availability of his service book could not ascertain his actual date of superannuation i.e. 30.4.2006, the petitioner, for no fault of his, can not be penalized, he urged. The learned Counsel argued that in the above factual premise, the petitioner is entitled to a writ of mandamus directing the respondents to treat him to be in continuous service in the school till 31.5.2006 for all service benefits including his retirement entitlements and to finalize the process pertaining thereto without further delay. Mr. Khataniar, in reply has urged that though the petitioner's service book at the relevant time was not available with the department, it was his duty to intimate the concerned authority the due date of his retirement and he having omitted to do so, the impugned action cannot be faulted with. He, however, has urged that the process for finalizing the retirement benefits of the petitioner has in the meantime been initiated and is near culmination.
8. Upon hearing the learned Counsel for the parties and in view of the pleaded stands, I do not feel persuaded to sustain the plea raised on behalf of the respondents. The averments made in the State's counter make it obvious that the departmental authorities themselves were unmindful of the actual date of superannuation of the petitioner i.e. 30.4.2006, purportedly due to non availability of his service book. Even assuming that the petitioner's service records had been forwarded to the Vigilance and Anti-corruption Department on being summoned by it, the petitioner cannot be fixed with any responsibility therefor. True, it is, that the petitioner himself must have been aware of his date of superannuation to be 30.4.2006, but the same per se, in the opinion of this Court, would not justify the punitive action as suggested by the respondent authorities. The petitioner having been required to retire on superannuation with effect from 31.5.2006 by letter dated 12.5.2006 of the Block Elementary Education Officer, Udharbond, Cachar, and that too without any reservation as to his actual date of superannuation or overstayal in service, the contemplated action of recovery from his salary for the period 1.5.2006 to 31.5.2006 cannot be judicially approved. It is as if the petitioner is sought to be penalized for no fault of his. There is nothing on record even to suggest that the petitioner had in any manner contributed to his belated superannuation and therefore, it would be unfair and iniquitous to deny his salary for the period for which he had duly rendered his services.
9. In the above view of the matter, the decision recover the petitioner's salary amounting to Rs. 15,214/- drawn by him as his salary for the period 1.5.2006 to 31.5.2006 for the services rendered is unsustainable in law. Resultantly, the letter dated 14.8.2006 is hereby quashed. However, as admittedly the petitioner's date of superannuation is 30.4.2006, the State respondents would finalize his pension and other benefits forthwith on the basis thereof. As the petitioner has retired from service over a year now, the process as above, should be completed within a period of two (2) months from the date of receipt of the certified copy of this order. The petition stands allowed in the above terms. No costs.