Gauhati High Court
Mani Ram Basumatary vs The State Of Assam And 9 Ors on 15 July, 2021
Page No.# 1/5
GAHC010079362021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3059/2021
MANI RAM BASUMATARY
S/O LATE GABKHO RAM BASUMATARY, R/O VILL-NO-2 CHATIANGURI,
P.O.-BIJNI, P.S.-BIJNI, DIST-CHIRANG, BTAD, ASSAM, PIN-783390
VERSUS
THE STATE OF ASSAM AND 9 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT, DISPUR,
GUWAHATI-6
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-6
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
ASSAM
DISPUR
GUWAHATI-6
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19
5:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
GUWAHATI-6
Page No.# 2/5
6:THE BODOLAND TERRITORIAL COUNCIL
REPRESENTED BY THE SECRETARY
EDUCATION
BODOFA NAGAR KOKRAJHAR
DIST-KOKRAJHAR
ASSAM
PIN-783370
7:THE DIRECTOR OF EDUCATION
BTC
BODOFANAGAR
KOKRAJHAR
DIST-KOKRAJHAR
ASSAM
PIN-783370
8:THE INSPECTOR OF SCHOOLS
CHIRANG DISTRICT CIRCLE
KAJALGAON
DIST-CHIRANG
BTAD
ASSAM
PIN-783385
9:THE TREASURY OFFICER
BIJNI TREASURY
DIST-CHIRANG
BTAD
ASSAM
PIN-783390
10:THE HEAD MASTER
ULUBARI HIGH SCHOOL
ULUBARI
P.O.-ULUBARI
DIST-CHIRANG
BTAD
ASSAM
PIN-78339
Advocate for the Petitioner : MR. K R PATGIRI
Advocate for the Respondent : SC, SEC. EDU.
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 15-07-2021
JUDGMENT & ORDER (ORAL)
Heard Mr. KR Patgiri, learned counsel for the petitioner. Also heard Mr. SMT
Chistie, learned standing counsel for the Secondary Education Department, Ms.
RB Bora, learned standing counsel for the BTC, Mr. G Pegu, learned counsel for
the authorities in the Pension Department as well as Mr. A Chaliha, learned
Standing counsel, Finance Department, Assam.
2. The petitioner who was working as an Assistant Teacher in Ulubari HS
School in the district of Chirang, Assam retired from service on attaining the age
of superannuation on 30.06.2020. After his retirement, when the matter was
processed for payment of his pensionery benefits, the communication dated
05.01.2021 of the Finance and Accounts Officer in the Office of the Directorate
of Pension, Assam was made addressed to the Inspector of Schools, Kajalgaon,
in the district of Chirang 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 Inspector of Schools, Kajalgaon,
Chirang 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.
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4. In the communication of 05.01.2021, 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
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
05.01.2021 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.
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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.4,10,825/- which was paid to the petitioner during his service
tenure.
8. The respondent authorities shall examine as to whether the over drawal of
salary by 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 salary by the
petitioner was not because of any fault on the part 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 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
