Fazlur Rahman vs The State Of Assam And 7 Ors
2021 Latest Caselaw 2485 Gua

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GAHC010166472021




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

                           Case No. : WP(C)/5439/2021

         FAZLUR RAHMAN
         S/O- MD. MAMMUD ALI MUNCHI, R/O- NO. 2 NOWAPARA, P.O. NOWAPARA,
         P.S. MANIKPUR, DIST.- BONGAIGAON, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PENSION AND
         PUBLIC GRIEVANCE DEPTT., DISPUR, GHY-06

         2:THE DIRECTOR OF PENSION
          HOUSE FED COMPLEX
          BELTOLA
          GHY-07

         3:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         4:THE SECRETARY
          GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GHY-06

         5:THE DIRECTOR OF EDUCATION
          BODOLAND TERRITORIAL COUNCIL
          KOKRAJHAR
         ASSAM

         6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
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             CHIRNAG
             BTC
             ASSAM

            7:THE DY. INSPECTOR OF SCHOOLS
             BIJNI
             P.O. AND P.S. BIJNI
             DIST.- CHIRANG
             BTC
            ASSAM

            8:THE BLOCK ELEMENTARY EDUCATION OFFICER
             BOROBAZAR EDUCATION BLOCK
             P.O. BOROBAZAR
             P.S. BIJNI
             DIST.- CHIRANG
             BTC
            ASSA

Advocate for the Petitioner   : MR. A A R KARIM

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 08-10-2021

JUDGMENT & ORDER (ORAL) Heard Mr. AAR Karim, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned standing counsel for the Elementary Education Department, Government of Assam, Ms. DD Barman, learned counsel for the authorities in the Pension Department, Mr. A Chaliha, learned Standing counsel, Finance Department, Government of Assam and Ms RB Bora, learned counsel for the BTC.

2. The petitioner who was working as a Head Teacher of No.596 Rajapara LP Page No.# 3/5

School in the district of Chirang retired from service on attaining the age of superannuation on 31.10.2018. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication dated 15.06.2019 of the Finance and Accounts Officer in the Office of the Directorate of Pension, Assam was made, addressed to the Deputy Inspector of Schools, Bijni, 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, Deputy Inspector of Schools, Bijni 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.

4. In the communication of 15.06.2019, 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 Page No.# 4/5

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 communications dated 15.06.2019, 30.07.2019, and 07.12.2019 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 pensionery benefits, the authorities shall consider and process the payment of pension to the petitioner as per law.

8. However, as submitted by Mr. A Chaliha, learned standing counsel Finance Department, it is provided that the correct pay of the petitioner would be Rs.4300/- 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 Page No.# 5/5

Comparing Assistant