Gauhati High Court
Inamul Muzid vs The State Of Assam And 4 Ors on 4 October, 2021
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GAHC010142002021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4622/2021
INAMUL MUZID
S/O LATE PAHAR SHAH ALI
RESIDENT OF AMGURI, PO AMGURI, DIST SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, THE PENSION DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM,
781006
2:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
LAST GATE
DISPUR GUWAHATI
ASSAM
781006
3:THE FINANCE AND ACCOUNT OFFICER
DIRECTORATE OF PENSION COMPLEX
DISPUR
GUWAHATI 06
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
SIVASAGAR
ASSAM
5:THE DEPUTY INSPECTOR OF SCHOOL
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SIVASAGAR
ASSA
Advocate for the Petitioner : MR B P BORAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 04-10-2021
Heard Mr. B P Borah, learned counsel for the petitioner. Also heard Ms. D D Barman,
learned Additional Senior Government Advocate for the respondents no. 1, 2 and 3 being the
authorities under the Pension Department, Government of Assam and Mr. P N Sarma, learned
counsel for the respondents no. 4 and 5 being the authorities under the Elementary
Education Department, Government of Assam.
2. The petitioner was working as an Assistant Teacher in the ONGC LP School in the
Sivsagar district and he retired from service on 31.05.2018. The petitioner is aggrieved to the
extent that even after the retirement, he has not been paid the pension and other benefits.
The respondents take the stand that the petitioner had overstayed his service by a period of
two years one month and therefore, there was an excess payment of salary for the said
period. According to the respondents, the petitioner ought to have been retired from service
on 30.04.2016 but he continued his service upto 31.05.2018 and therefore, he was not
entitled to the salary that was paid for the excess period for which the he had served. As the
said dispute has not been resolved, therefore, the petitioner is not paid his pension.
3. Mr. B P Borah, learned counsel for the petitioner relies upon a pronouncement of the
Supreme Court rendered in the State of Bihar & ors vs. Pandey Jagdishwar Prasad reported in
(2009) 3 SCC 117 wherein in paragraphs 23 and 24 thereof it had been held as extracted as
below:
"23. Without going into the question whether the appellant was justified after
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completion of two years from the actual date of retirement to deduct two years' salary
and other emoluments paid to the respondent, we may say objection from the side of
the appellant and the appellant had got works done by the respondent, we do not
think that it was proper at this stage to allow deduction from his retiral benefits, the
amount received by him as salary, after his actual date of retirement.
24. Considering the fact that there was no allegation of misrepresentation or fraud,
which could be attributed to the respondent and considering the fact that the
appellant had allowed the respondent to work and got works done by him and paid
salary, it would be unfair at this stage to deduct the said amount of salary paid to him.
Accordingly, we are in agreement with the Division Bench decision that since the
respondent was allowed to work and was paid salary for his work during the period of
two years after his actual date of retirement without raising any objection whatsoever,
no deduction could be made for that period from the retiral dues of the respondent."
4. The proposition of law laid down by the Supreme Court in the State of Bihar (supra)
goes to show that if an employee had overstayed in service and there was no allegation of
any misrepresentation or fraud by the employee resulting in such overstay, and in a situation
where the respondent authorities had allowed the petitioner to work and got the work done
by him and paid his salary, it would be unfair at a later stage to deduct the said amount of
salary paid to him.
5. As the proposition has been settled by the Supreme Court what remains now is for the
respondent authorities to arrive at a conclusion as to whether the overstay of the petitioner
was because of some misrepresentation or fraud committed by him resulting in his overstay
in service. If the respondent authorities are of the view that there was a misrepresentation or
fraud committed by the petitioner, a reasoned order thereof be passed by giving the
petitioner an opportunity of hearing. If the respondents are of the contrary view that there
was no misrepresentation or fraud committed by the petitioner, in such event the salary paid
to the petitioner for the period from 30.04.2016 upto 31.05.2018 be not recovered. In doing
so, the respondents shall also verify as to whether the petitioner had actually worked for the
said period or not. But however, the decision of recovery of the salary paid for the said period
cannot be a reason for not paying the pension to the petitioner which he is otherwise entitled
under the law.
6. As provided by the Supreme Court in paragraph 30 of the judgment of State of Bihar
(supra), the pension shall be paid on the basis of scale of pay that the petitioner was entitled
on 30.04.2016 i.e. the date on which according to the respondents, the petitioner would have
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otherwise retired from service. The pensionery benefits be processed and paid to the
petitioner within a period of six weeks from the date of receipt of certified copy of the order.
7. As regards the decision of the authorities regarding the refund of the salary paid to
him for the alleged period of overstay, the said decision be taken within a period of three
months from the date of receipt of certified copy of the order and if necessary by giving the
petitioner an opportunity of hearing.
8. Writ petition stands allowed as indicated above.
JUDGE
Comparing Assistant
