Gauhati High Court
Kuladhar Doley vs The State Of Assam And 8 Ors on 15 July, 2021
Page No.# 1/5
GAHC010079272021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3058/2021
KULADHAR DOLEY
S/O LATE MONSANG DOLEY, VILL- KEKURI PAMUAH, P.O.-KEKURI
PAMUAH MIRI, DIST- LAKHIMPUR, ASSAM, PIN-787055
VERSUS
THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR,
GUWAHATI-6
2:THE DIRECTOR
ELEMENTARY EDUCATION DEPARTMENT
ASSAM
KAHILIPARA
GUWAHATI-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
4:THE DEPUTY INSPECTOR OF SCHOOLS
DHAKUAKHANA
DIST-LAKHIMPUR
ASSAM
PIN-787001
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
DHAKUAKHANA BLOCK
DHAKUAKHANA
DIST-LAKHIMPUR
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ASSAM
PIN-787053
6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-6
7:THE TREASURY OFFICER
DHAKUAKHANA
DIST-LAKHIMPUR
ASSAM
PIN-787001
8:THE DIRECTOR OF PENSION
ASSAM
DISPUR
GUWAHATI-6
9:THE FINANCE AND ACCOUNTS OFFICER
DIRECTORATE OF PENSIONS
ASSAM
DISPUR
GUWAHATI-0
Advocate for the Petitioner : MD. S ALOM
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date: 15/07/2021
Heard Mr. S Alom, learned counsel for the petitioner. Also heard Mr. PN
Sarma, learned standing counsel for the Elementary Education Department, Mr.
G Pegu, learned counsel for the authorities in the Pension Department as well as
Mr. A Chaliha, learned Standing counsel, Finance Department, Assam.
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2. The petitioner who was working as a Head Teacher in 175.No Kekuri
Pomua LP school in the district of Lakhimpur Assam retired from service on
attaining the age of superannuation on 31.07.2017. After his retirement, when
the matter was processed for payment of his pensionery benefits, the
communication dated 07.01.2020 (Annexure-2 to the writ petition) of the
Finance and Accounts Officer in the Office of the Directorate of Pension, Assam
was made addressed to the Deputy Inspector of Schools, Dhakuakhana, in the
district of Lakhimpur Assam by which it was provided that during his service
tenure, the petitioner was paid a salary higher than his actual scale of pay.
Accordingly, by the said communication, the Deputy Inspector of Schools,
Dhakuakhana, Lakhimpur 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 07.01.2020 (Annexure-2), 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 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.
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
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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
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
07.01.2020 (Annexure-2) 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 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 Standing Counsel for the
Finance Department, it is provided that as the correct pay of the petitioner
ought to have been Rs.500/- per month instead of Rs.512/- per month as on
July 1983 (Annexure-3 page 18 to the writ petition) . Accordingly, the
authorities shall proceed with the payment of pension by taking into account the
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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 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
