Gauhati High Court
Majida Khatun vs The State Of Assam And 9 Ors on 26 August, 2021
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GAHC010112632021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3881/2021
MAJIDA KHATUN
W/O LATE FAZLUR RAHMAN, R/O VILL. NO. 2 NOWAPARA, P.O.
NOWAPARA, DIST. BONGAIGAON, ASSAM, PIN 783392
VERSUS
THE STATE OF ASSAM AND 9 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT OF
ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI 6
2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
ASSAM
DISPUR
GUWAHATI 6
3:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCE DEPTT.
DISPUR
GUWAHATI 6
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
5:THE DIRECTOR OF PENSION
ASSAM
HUSEFED COMPLEX
GUWAHATI 6
6:THE BODOLAND TERRITORIAL COUNCIL
REPRESENTED BY THE SECY.
EDUCATION DEPTT.
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BODOFANAGAR
KOKRAJHAR
PIN 783370
7:THE DIRECTOR OF EDUCATION
BTC
BODOFANAGAR
KOKRAJHAR
PIN 783370
8:THE DIST. ELEMENTARY EDUCATION OFFICER
DIST. CHIRANG
BTAD
ASSAM
PIN 783385
9:THE DEPUTY INSPECTOR OF SCHOOL
BIJNI DIST. CHIRANG
BTAD
ASSAM
PIN 783390
10:THE TREASURY OFFICER
BIJNI
DIST. CHIRANG
BTAD
ASSAM
PIN 78339
Advocate for the Petitioner : MR. K R PATGIRI
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 26-08-2021
JUDGMENT & ORDER (ORAL)
Heard Mr. KR Patgiri, learned counsel for the petitioner. Also heard Mr. PN
Sarma, learned standing counsel for the Elementary Education Department, Ms.
RB Bora, learned standing counsel for the BTC, Ms. DD Barman, learned counsel
for the authorities in the Pension Department as well as Mr. P Nayak, learned
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Standing counsel, Finance Department, Assam.
2. The husband of the petitioner who was working as a Head Teacher in 596
No. Rajpara LP School in the district of Chirang, Assam, retired from service on
attaining the age of superannuation on 31.10.2018. After his retirement, when
the matter was processed for payment of his pensionery benefits, the
communication dated 30.07.2019 of the Finance and Accounts Officer in the
Office of the Directorate of Pension, Assam was made addressed to the Deputy
Inspector of Schools, Bijni, in the district of Chirang, Assam by which it was
provided that during the service tenure, the husband of the petitioner was paid
a salary higher than his actual scale of pay. Accordingly, by the said
communication, the Deputy Inspector of Schools, Bijni, Chirang was required to
do the needful. Subsequently, the husband of the petitioner died on 19.06.2021.
3. The said communication has been assailed in this writ petition on the
ground that as per the law laid down by the Hon'ble Supreme Court, recovery
from the pensionery benefits cannot be made in respect of any salary that was
paid to an employee during his service period for no fault of his own.
4. In the communication of 30.07.2019, it is noticed that there is no such
conclusion of the Finance and Accounts Officer in the Directorate of Pension,
Assam that the excess salary was paid to the husband of the petitioner because
of any fault of his or because of any overt act on his part, which had contributed
to such payment of excess salary. In the absence of any such material, it cannot
be concluded whether the excess salary was paid to the husband of the
petitioner because of any fault of his.
5. The law in this respect has been settled by the Hon'ble Supreme Court in
Shyam Babu Verma and others -vs- Union of India and others , reported in
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(1994) 2 SCC 521 and State of Punjab and Others -vs- Rafiq Masih (White
Washer) and others, reported in (2015) 4 SCC 334, wherein it had been held
that in the event an excess salary is paid to an employee during his service
tenure because of no fault of his, such excess payment cannot be recovered
from the retirement benefits.
6. The aforesaid provisions of law squarely be applicable to the fact of this
case and as such, the recovery sought to the made by the communication of
30.07.2019 would not be sustainable in its present form. However, as no
material has been produced before this Court as to whether the excess salary
was paid to the husband of the petitioner because of any overt act of the
husband of the petitioner, this Court deems it appropriate that the ends of
justice would be met if the authorities in the Pension Department make an
assessment as to whether there was any contribution on the part of the
husband of the petitioner in receiving such excess salary during his service
tenure. In the event, if it is found that there was no such contribution from the
husband of the petitioner leading to such excess payment, the authorities shall
not insist upon the recovery in view of the law laid down by the Hon'ble
Supreme Court as indicated above.
7. It is stated that as per the direction of the respondent authorities, the
authority concerned had already prepared the recovery statement of the excess
amount of Rs.1,53,743/- which was paid to the husband of the petitioner during
his service tenure.
8. The respondent authorities shall examine as to whether the over drawal of
salary by the husband of the petitioner was because of any fraud or
misrepresentation on his part or it was because of any fault of the respondent
authorities. If the authorities arrive at the conclusion that the over-drawal of
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salary by the husband of the petitioner was not because of any fault on the part
of the husband of the petitioner, the authorities shall proceed with the payment
of pension by taking into account the correct pay that the petitioner ought to
have received and not the incorrect higher pay that was paid to her husband.
9. The aforesaid exercise be done by the respondent authorities within a
period of two months from the date of receipt of a certified copy of this order.
10. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
