Mahendra Boro vs The State Of Assam And 6 Ors
2021 Latest Caselaw 735 Gua

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GAHC010033982021




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

                            Case No. : WP(C)/1295/2021

         MAHENDRA BORO
         S/O PADU RAM BORO, R/O VILL. HATIRTARI, P.O. ATHIABARI, DIST.
         BAKSA, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI 781006

         2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

          FINANCE DEPTT.
          DISPUR
          GUWAHATI 781006

         3:THE DIRECTOR OF ELEMENTARY EDUCATION

          BTR
          KOKRAJHAR
          ASSAM
          PIN 783370

         4:THE DIRECTOR OF PENSION

          ASSAM
          HOUSEFED COMPLEX
          GUWAHATI 781006

         5:THE DIST. ELEMENTARY EDUCATION OFFICER

          BAKSA
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             BTR
             ASSAM
             P.O. MUSHAPUR
             DIST. BAKSA
             ASSAM
             PIN 781372

             6:THE DEPUTY INSPECTOR OF SCHOOLS

             BAKSA
             P.O. MUSHALPUR
             DIST. BAKSA
             ASSAM
             PIN 781372

             7:THE BLOCK ELEMENTARY EDUCATION OFFICER

             BAKSA
             P.O. MUSHALPUR
             DIST. BAKSA
             ASSAM
             PIN 78137

Advocate for the Petitioner    : MS. M BARMAN

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 01-03-2021

JUDGMENT & ORDER (ORAL) Heard Mr. M Islam, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned standing counsel for the Elementary Education Department, Mr. SR Barua, learned counsel for the authorities in the Pension Department, Mr. S Bora for the authorities under the BTC as well as Mr. A Chaliha, learned Standing counsel, Finance Department.

2. The petitioner who was initially working as an Assistant Teacher of Baramchari LP School in the district of Baksa, Assam retired from service on attaining the age of superannuation on 30.09.2018 as Page No.# 3/4

Head Teacher. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication dated 23.09.2019 of the Finance and Accounts Officer in the Office of the Directorate of Pension, Assam was made addressed to the Deputy Inspector of Schools, Mushalpur, Baksa 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, Mushalpur Baksa 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 pensionary 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 23.09.2019, 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 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 19.02.2020 as well as the recovery statement 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 pensionary benefits, the authorities shall consider and process the Page No.# 4/4

payment of pension to the petitioner as per law.

8. However, as submitted by Mr. B Gogoi, learned Standing Counsel for the Finance Department, it is provided that as the correct pay of the petitioner ought to have been Rs.1405/- per month instead of Rs.1435/- per month. 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 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