Gauhati High Court Finds No Justifiable Ground To Withhold Pension | Quashes Recovery Orders And Directs Final Settlement Within 90 Days
Isabella Mariam
The High Court of Gauhati Single Bench of Justice Suman Shyam held that the authorities had "no legally justifiable ground" to withhold the regular pension and retirement benefits of a retired Inspector General of Sashastra Seema Bal (SSB). The Court directed the respondents to pass appropriate orders for regularizing the suspension period and finalizing the petitioner's pension within prescribed time limits. Further, the Court quashed multiple orders seeking recovery of excess payments made to the petitioner post-retirement, stating that such recoveries were "impermissible under the law" in the absence of fraud or misrepresentation.
The Court stated that the delay of more than four years in finalizing pension on account of a pending inquiry with the Central Bureau of Investigation (CBI) lacked any legal basis. Observing that "mere pendency of an Inquiry before the CBI could not have been a valid ground" for pension denial, the Court held that the authorities acted contrary to the Central Civil Services (Pension) Rules, 1972. The writ petition was allowed, and specific timelines were set for compliance, failing which the authorities would be liable to pay interest on the dues at 12% per annum from the date of entitlement till realization.
The petitioner, a retired Inspector General of the SSB, had joined service initially in the Border Security Force in 1981 and later transferred to the SSB as a gazetted officer in 1984. Rising through the ranks, he became Inspector General in 2016. However, he was placed under suspension on 21.11.2017 based on a proposed Court of Inquiry (COI) concerning alleged misuse of manpower and irregularities in a recruitment test. The suspension was extended on 19.02.2018 and again on 21.05.2018.
A communication dated 23.03.2018 ordered the COI, and another COI was initiated on 07.08.2018. The petitioner was not initially provided a copy of the convening order for the second inquiry. On 30.08.2018, the suspension was revoked. By 21.05.2019, the COI and Additional COI were declared completed, with follow-up correspondence pending with the Ministry of Home Affairs. The petitioner claimed that no charge-sheet was ever filed, nor any departmental proceedings initiated.
In the meantime, on 18.10.2019, the petitioner was granted financial upgradation under the Non-Functional Financial Upgradation (NFFU) scheme to the Senior Administrative Grade (SAG), and arrears amounting to Rs. 4,64,310/- were paid. Later, the authorities determined an incorrect multiplier was used (2.67 instead of 2.57), leading to an alleged excess payment of Rs. 2,93,698/-. Orders were issued on 05.02.2020 and 19.02.2020 seeking recovery of the excess amount. The petitioner refused to refund the sum, and on 04.08.2020, an order was issued to recover the amount.
The petitioner also challenged the recovery of Rs. 10,26,363/- which he received as arrears for the period of suspension. After revocation of suspension, this amount was credited based on scrutiny by the Zonal Paying Office. However, the amount was later recovered from his salary and gratuity, and a show-cause notice dated 17.10.2019 was issued to him, claiming the payment had been made without a lawful order regularizing the suspension period.
In the writ petition, the petitioner sought quashing of all suspension extension and recovery orders, and prayed for full pension benefits, challenging the legality of the recovery process and the withholding of his pension in the absence of pending departmental or judicial proceedings.
Justice Suman Shyam recorded that "there is no legally justifiable ground for the respondent authorities to withhold the regular pension and other retirement benefits of the writ petitioner." He observed that no charge-sheet had been submitted, and no departmental or judicial proceeding was pending.
Referring to Rule 69 of the CCS (Pension) Rules, 1972, the Court noted: "provisional pension would be payable only in case where a departmental or judicial proceeding is pending and the Government servant is placed under suspension or when a charge-sheet has been submitted." In this case, there were no such proceedings.
The Court questioned the delay by the authorities: "although the departmental authorities had initiated a COI and thereafter an Additional COI... yet, the said process has admittedly and evidently not been brought to its logical conclusion till today." It recorded that there was "no plausible explanation for the delay" and "no specific allegation brought against the petitioner regarding any financial irregularity committed by him or any other misconduct having the ingredients of a cognizable offence."
Regarding the recovery, the Court cited the Supreme Court’s decision in State of Punjab v. Rafiq Masih (2015) 4 SCC 334 and Jogeswar Sahoo v. District Judge, Cuttack (2025 SCC OnLine SC 724), noting: "no recovery can be made from a retired employee in case of excess drawal/payment unless a case of misrepresentation or fraud is made out." The Court stated that "even if an undertaking is given by the employee permitting such recovery, the same will not be of any relevance in case of a retired employee."
On the recovery of Rs. 10,26,363/-, the Court observed: "not only have the respondents recovered the said amount from the salary of the petitioner but had also served a notice asking him to show cause... for misconduct." It noted that there was "no order passed by the authorities within the meaning of F.R. 54-B(3) holding that the period of suspension of the petitioner was justified." The show-cause and recovery were deemed "wholly arbitrary and illegal" and a "clear attempt... to cause undue harassment."
The Court reiterated the duty of authorities under F.R. 54-B(3): "it was incumbent upon the authorities to pass an order... laying down as to whether, the suspension was justified or not." Referring to M. Gopalkrishna Naidu v. State of M.P. (1968 AIR SC 240), the Court stated: "the authority has to consider and make a specific order... whether such period of absence should be treated as one spent on duty."
Ultimately, the Court concluded: "there was no legal justification for placing the petitioner under suspension" and therefore the suspension period must be regularized appropriately.
The Court allowed the writ petition in full. It directed: "the respondents to pass appropriate order under Rule 54-B (3) of the F.R. pertaining to regularization of the period of suspension of the petitioner with effect from 21.11.2017 till his reinstatement, in the light of the observations made herein above, within 30 days from receipt of a certified copy of this order."
Following that, the Court ordered: "the respondents shall pass final order pertaining to the claim of regular pension and other retirement dues, if any, payable to the petitioner under the rules, within a further period of 90 days (ninety days)."
Regarding recovery, the Court declared: "the impugned orders dated 05.02.2020, 19.02.2020, 15.05.2020 and 04.08.2020 are hereby set aside."
It further clarified: "if the respondents fail to comply with the order of this Court within the period mentioned above, the arrear amounts due and payable to the petitioner shall attract interest @ 12% per annum with effect from the date on which the same had become due till realization."
Advocates Representing the Parties:
For the Petitioner: Mr. U. K. Nair, Mr. U. Pathak, Mr. H. K. Das, Advocates
For the Respondents: Ms. B. Sarma, Assistant Solicitor General of India
Case Title: Sarwan Kumar v. Union of India & Ors.
Neutral Citation: GAHC010030072022
Case Number: WP(C)/1306/2022
Bench: Justice Suman Shyam
[Read/Download order]
