Gauhati High Court
Kanika Pathak vs The State Of Assam And 6 Ors on 26 February, 2021
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GAHC010035342021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1275/2021
KANIKA PATHAK
W/O. LT. KANDARPA KUMAR PATHAK, VILL. SRIPURDEOR, P.O.
ADALBARI, DIST. BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(ELEMENTARY) DEPTT., DISPUR, GUWAHATI-06.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI-06.
3:THE DIRECTOR
ELEMENTARY EDUCATION
BTR
KOKRAJHAR
ASSAM
P.O. AND DIST. KOKRAJHAR
PIN-783370.
4:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
GUWAHATI-06.
5:THE DISTRICT ELEMENTARY EDUCATIN OFFICER
BAKSA
BTR
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ASSAM
P.O. MUSHALPUR
DIST. BAKSA
BTR
ASSAM
PIN-781372.
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
BAKSA
P.O. MUSHALPUR
DIST. BAKSA
BTR
ASSAM
PIN-781372.
7:THE TREASURY OFFICER
BAKSA TREASURY
MUSHALPUR
P.O. MUSHALPUR
DIST. BAKSA
BTR
ASSAM
PIN-781372
Advocate for the Petitioner : MS. M BARMAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 26-02-2021
JUDGMENT & ORDER (ORAL)
Heard Ms. M Barman, learned counsel for the petitioner, Mr. B KAushik, learned
standing counsel for the Elementary Education Department of the Government of Assam, Mr.
B Choudhury, learned counsel for the Finance Department and Mr. B Deori, learned
Government Advocate.
2. The husband of the petitioner who was working as a Assistant Teacher of Chanbari
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Khuti Lower Primary School in the district of Baksa, Assam died in harness on 11.06.2019.
After his death, when the matter was processed for payment of his pensionery benefits, the
communication dated 05.10.2020 of the Finance and Accounts Officer in the office of the
Directorate of Pension, Assam was made addressed to the Deputy Inspector of Schools,
Mushalpur in the Baksa district, Assam, by which, it was provided that during his service
tenure, the husband of the petitioner was paid a salary higher than his actual scale.
Accordingly, by the said communication, the Deputy Inspector of Schools, Mushalpur in the
district of Baksa, Assam was required to do the needful.
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 05.10.2020, it is noticed that there is no such conclusion of the
Finance and Accounts Officer in the office of 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 (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/her service tenure because of no fault of his/her, such excess
payment cannot be recovered from the retirement benefits.
6. The aforesaid provisions of law would squarely be applicable to the facts of this case
and as such, the recovery sought to the made by the communication of 05.10.2020 would
not 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
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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. Further, in the event, the authorities arrive at a situation where the excess payment can
no longer be recovered from the pensionery benefits; the authorities shall consider and
process the payment of pension to the petitioner as per law.
8. However, as submitted by Mr. B Choudhury, learned Standing Counsel for the Finance
Department, it is provided that the correct pay of the husband of the petitioner would be
Rs.1345/- per month. Accordingly, the authorities shall proceed with the payment of pension
by taking into account the correct pay that the husband of the petitioner ought to have
received and not the incorrect higher pay that was paid to him.
9. The aforesaid exercise be done within a period of two months from the date of receipt
of a certified copy of this judgment and order.
10. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
