Nareswar Bharali vs The State Of Assam And 5 Ors
2021 Latest Caselaw 709 Gua

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GAHC010007692021




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/396/2021

         NARESWAR BHARALI
         R/O. VILL. KARANGA, P.O. PATRICHUK, PIN-787053, DIST. LAKHIMPUR,
         ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY ITS PRINCIPAL COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM (EDUCATION DEPTT.), GUWAHATI-06.

         2:THE COMMISSIONER AND SECY.
         TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPTT.
          GUWAHATI-06.

         3:THE DIRECTOR OF PENSION

          ASSAM HOUSEFED COMPLEX
          GUWAHATI-06.

         4:DIRECTORATE OF ACCOUNT AND TREASURES

          ASSAM
          DISPUR
          GUWAHATI-06.

         5:ACCOUNTANT GENERAL

          MAIDAM GAON
          KRISHNAPUR
          BELTOLA TINAILI
          GUWAHATI-781029.
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             6:DEPUTY INSPECTOR OF SCHOOL

              DHAKUAKHANA LAKHIMPUR
              PIN-787055

Advocate for the Petitioner     : MR MINTU SAIKIA

Advocate for the Respondent : SC, EDU




                                  BEFORE
             HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                            JUDGMENT

Date : 26-02-2021

Heard Mr. M. Saikia, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned counsel for the Elementary Education Department, Mr. S.R. Barua, learned counsel for the respondents No. 2 and 3 as well as Mr. A. Chaliha, learned counsel for the respondent Finance Department and Mr. S.K. Hazarika, learned counsel for the respondent No.5.

2. The petitioner who was working as a Headmaster of Karanga Balijan L.P. School in the district of Lakhimpur under Dhakuakhana Block retired from service on attaining the age of superannuation on 30.11.2013. After his retirement, when the matter was processed for payment of her pensionery benefits, the communication dated 09.02.2018 of the Finance and Accounts Officer in the office of the Director of Pension, Assam was made addressed to the Deputy Inspector of Schools, Dhakuakhana Assam, by which, it was provided that during his service tenure, the petitioner was paid a salary higher than his actual scale. Accordingly, by the said communication, the Deputy Inspector of Schools, Dhakuakhana, 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 09.02.2018, it is noticed that there is no such conclusion of the Finance and Accounts Officer in the office of the Director of Pension, Assam that the excess salary was paid to 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 petitioner because of any fault of his.

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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 09.02.2018 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 petitioner because of any overt act 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 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 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. A. Chaliha, learned Counsel for the Finance Department, it is provided that the pay of the petitioner ought to have been fixed at Rs.14,950/- as on 01.01.2006. Accordingly, 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 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.

JUDGE

Comparing Assistant