Gauhati High Court
Md Mubarak Ali vs The State Of Assam And 4 Ors on 5 October, 2021
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GAHC010127662021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5215/2021
MD MUBARAK ALI
S/O LATE NASIRUDDIN AHAMED,
RESIDENT OF HATIKUKH VILLAGE , PO DHULIAPARA, DIST SIVASAGAR,
ASSAM, 785664
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, THE PENSION DEPARTMENT, SACHIVALAYA, DISPUR,
GUWAHATI 781006
2:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
LAST GATE
DISPUR
GUWAHATI
ASSAM 78006
3:THE SR. ACCOUNTS OFFICER
OFFICE OF THE ACCOUNTANT GENERAL
MAIDAMGAON
BELTOLA
GUWAHATI 29
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
SIVASAGAR
785661
5:THE DEPUTY INSPECTOR OF SCHOOLS
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ELEMENTARY EDUCATION
SIVASAGAR
ASSAM 78566
Advocate for the Petitioner : MR B P BORAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 05-10-2021
Heard Mr. B.P. Borah, learned counsel for the petitioner. Also heard Mr.
N.J. Khataniar, learned counsel for the respondents No. 4 and 5, Mr. P.
Saikia, learned counsel for the respondents No. 1 & 2 and Mr. R. Talukdar,
learned counsel for the respondent No.3.
2. The petitioner who was working as a Junior Assistant in the Office of the
Deputy Inspector of School in the district of Sivasagar, Assam retired from
service on attaining the age of superannuation on 31.08.2017. After his
retirement, when the matter was processed for payment of her pensionery
benefits, the communication dated 08.02.2018 of the Senior Accounts Officer
was made addressed to the Inspector of Schools, Sivasagar Assam, by which, it
was provided that during his service tenure, the petitioner was paid a salary
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higher than her actual scale. Accordingly, by the said communication, the
Inspector of Schools, Sivasagar, 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
pensioner 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 08.02.2018, it is noticed that there is no such
conclusion of the Senior Accounts Officer in the office of the Accountant
General, Assam that the excess salary was paid to the petitioner because of any
fault of him 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 him.
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
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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 08/02/2018 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
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as per law.
8. However, as submitted by Mr. P. Saikia, learned counsel for the Pension
Department, it is provided that the correct pay of the petitioner would be
Rs.10,460/- 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. It is stated that pursuant to the impugned recovery sought to be made
from the petitioner, the petitioner had already paid an amount of Rs.29,826/-
and if the authorities arrive at its conclusion that the excess payment was made
to the petitioner for no fault of his, the said amount shall be returned back to
the petitioner within a period of two months from the date of the order to be
passed by the authorities.
10. 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.
11. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
