Binu Pachani vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2544 Gua

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GAHC010069052021




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

                         Case No. : WP(C)/2745/2021

         BINU PACHANI
         D/O- LT. BHIMESWAR PACHANI, R/O- HATICHUK KOMAR GAON, P.O.
         KARANGA, DIST.- JORHAT, PIN- 785008, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM, THE PENSION
         DEPTT., SACHIVALAYA, DISPUR, ASSAM- 781006

         2:THE DIRECTOR OF PENSION
          HOUSEFED COMPLEX
          LAST GATE
          DISPUR
          GHY
         ASSAM- 781006

         3:THE FINANCE AND ACCOUNTS OFFICER
          DIRECTORATE OF PENSION
          HOUSEFED COMPLEX
          DISPUR
         GHY-06

         4:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         5:THE INSPECTOR OF SCHOOLS
          JORHAT
          DIST- JORHAT
          PIN- 78500
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Advocate for the Petitioner   : MR B P BORAH

Advocate for the Respondent : SR. GA, ASSAM




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                         ORDER

Date : 26-10-2021

Heard Mr. B.P. Borah, learned counsel for the petitioner. Also heard Ms. D.D. Barman, learned counsel for the respondents No.1 and 2 being the Pension Department, Mr. S.M.T. Chistie, learned counsel for the respondents No. 4 and 5 being the authorities under the Secondary Education Department of the Govt. of Assam and Mr. B. Gogoi, learned counsel for the respondent No.3 being the Finance Department.

2. The petitioner who was working as an Assistant Teacher of S.P.B. Girls High School in the district of Jorhat, Assam retired from service on attaining the age of superannuation on 31/01/2017. After her retirement, when the matter was processed for payment of her pensionery benefits, the communication dated 03.05.2019 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the Inspector of Schools, Jorhat Assam, by which, it was provided that during her service tenure, the petitioner was paid a salary higher than her actual scale. Accordingly, by the said communication, the Inspector of Schools, Jorhat, 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 Page No.# 3/4

from the pensionery benefits cannot be made in respect of any salary that was paid to an employee during her service period for no fault of his own.

4. In the communication of 03.05.2019, it is noticed that there is no such conclusion of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam that the excess salary was paid to the petitioner because of any fault of her or because of any overt act on her 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 her.

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 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 03/05/2019 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 Page No.# 4/4

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 her 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. 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 her.

9. 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.

10. In terms of the above, the writ petition stands disposed of.

JUDGE

Comparing Assistant