Gauhati High Court
Smti. Dhanada Phukon vs The State Of Assam And 3 Ors on 5 October, 2021
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GAHC010156492021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5229/2021
SMTI. DHANADA PHUKON
W/O SRI TIRTHESWAR GOGOI, R/O WARD NO-5, VILL-GOHAIN GAON, P.O.-
JAPISAJIA, P.S.-NORTH LAKHIMPUR, DIST-LAKHIMPUR, ASSAM, PIN-
787001
VERSUS
THE STATE OF ASSAM AND 3 ORS
EDUCATION DEPTT. (ELEMENTARY) REPRESENTED BY ITS PRINCIPAL
SECRETARY (GOVT. OF ASSAM), DISPUR SACHIBALAYA, DISPUR,
GUWAHATI-06, ASSAM
2:THE PENSION AND PUBLIC GRIEVANCES DEPTT.
REPRESENTED BY ITS DIRECTOR
HOUSEFED COMPLEX
DISPUR
GUWAHATI-06
3:THE DIRECTOR OF EDUCATION (ELEMENTARY)
KAHILIPARA
GUWAHATI-19
4:THE DEPUTY INSPECTOR OF SCHOOL
LAKHIMPUR DISTRICT CIRCLE
DIST-NORTH LAKHIMPUR
ASSAM
PIN-78700
Advocate for the Petitioner : MR. S CHAMARIA
Advocate for the Respondent : SC, ELEM. EDU
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 05-10-2021
Heard Mr. S.K. Gogoi, learned counsel for the petitioner. Also heard Mr.
S.R. Barua, learned counsel for the respondent No.2 being the Pension
Department and Mr. N.J. Khataniar, learned counsel for the respondents
No.1, 3 and 4 being the authorities under the Elementary Education
Department.
2. The respondent No.2 is read to be represented by the Commissioner &
Secretary and not by the Director.
3. The petitioner was serving as an Assistant Teacher in the Japisajia Gohain
Lower Primary School in the Nalbari district and upon completing her tenure of
service retired on 31.12.2014.
4. The grievance raised is that after retirement the petitioner has not been
paid the final pension although she is being paid the provisional pension.
5. Being aggrieved, the petition is instituted. The respondent authorities by
referring to the communication dated 09.06.2017 from the Finance and
Accounts Officer in the Directorate of Pension, Assam takes a stand that during
her service period, the petitioner had overstayed in service for one year and
therefore, there is a requirement for recovery of the salary paid to her for the
said period of one year.
6. In view of such requirement of making the recovery, the final pension of
the petitioner had not been paid. We are unable to accept the said contention
on behalf of the respondents. Whether it is on the basis of the salary the
petitioner received on the last date of her service when she actually ought to
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have retired or it would be on the basis of the salary she would have received
on the day actually she had retired, there cannot be a situation where the
respondents can deny the petitioner from being processed to a final pension. If
there is an issue with the respondents that the petitioner has to refund the
salary paid to her for the excess one year of service, the same would be
covered by an earlier judgment of this Court dated 04.10.2021 in WP(C)
4622/2021, wherein, by relying on the decision of the Supreme Court in State of
Bihar & Ors., -vs- Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117
paragraph-23 and 24, a conclusion was arrived that if an employee had
overstayed in service and there was no allegation of 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 her and paid the salary, it would be unfair to deduct the amount that
paid to her.
7. Accordingly, it was provided that if the respondents 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 authorities upon undertaking the exercise arrives at its conclusion that the
overstay was not because of any misrepresentation or fraud committed by the
petitioner, in such event, the salary paid for alleged excess period in service be
not recovered.
8. Accordingly, in the instant case also, the Director of Elementary Education
shall make an enquiry by giving the petitioner an opportunity whether the
overstay was because of misrepresentation or fraud by the petitioner. If the
conclusion to be arrived would be that there was no fraud or mis-representation
by the petitioner, the salary for the excess period shall not be recovered and if
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the conclusion would be that there was misrepresentation or fraud, a reasoned
order be passed and the petitioner be informed.
9. But in either view of the matter as provided by the Supreme Court in State
of Bihar & Ors., -vs- Pandey Jagdishwar Prasad (supra), the petitioner would be
entitled to her pensionary benefit on the basis of the salary she received as on
31.12.2013 when according to the respondent she ought to have actually
retired. Accordingly, the respondent authorities shall process the proposal for
final pension of the petitioner by taking her salary as on 31.12.2013 when she
ought to have retired.
10. Further if the authorities after undertaking the exercise as indicated above
arrives at its conclusion that there is a requirement under the law to effect the
recovery of the salary paid for the excess period of one year the same can only
be done by following the due procedure of law under the pension Rules, i.e. the
recovery cannot be made at an excess of 50% of the actual pension payable to
the petitioner per-month.
11. The final pension be processed within a period of three months from the
date of receipt of the certified copy of the order and in doing so, the authorities
under the Elementary Education Department and Pension Department shall
cooperate and do the needful.
Writ petition stands allowed of in the above terms.
JUDGE
Comparing Assistant
