Gauhati High Court
Phuleswari Gogoi vs The State Of Assam And 8 Ors on 9 September, 2021
Page No.# 1/5
GAHC010130922021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4418/2021
PHULESWARI GOGOI
W/O- LT. PRASANNA KUMAR GOGOI, VILL- NARAYANPUR, P.O. OUGURI
DANGDHARA, DIST.- LAKHIMPUR, ASSAM, PIN- 787055
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(ELEMENTARY) DEPTT., DISPUR, GHY-6
2:THE DIRECTOR
ELEMENTARY EDUCATION DEPTT.
ASSAM
KAHILIPARA
GHY-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
LAKHIMPUR
DIST.- LAKHIMPUR
ASSAM
PIN- 787001
4:THE DY. INSPECTOR OF SCHOOLS
DHAKUAKHANA
DIST.- LAKHIMPUR
ASSAM
PIN- 787001
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
DHAKUAKHANA BLOCK
DHAKUAKHANA
DIST.- LAKHIMPUR
Page No.# 2/5
ASSAM
PIN- 787053
6:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GHY-6
7:THE TREASURY OFFICER
DHAKUAKAHANA
DIST.- LAKHIMPUR
ASSAM
PIN- 787001
8:THE DIRECTOR OF PENSION
ASSAM
DISPUR
GHY-06
9:THE FINANCE AND ACCOUNTS OFFICER
DIRECTORATE OF PENSION
ASSAM
DISPUR
GHY-0
Advocate for the Petitioner : MD. S ALOM
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 09-09-2021
Heard Mr. S. Alom, learned counsel for the petitioner. Also heard Mr. G.
Pegu, learned counsel for the respondents No.1 to 5, Mr. P. Saikia, learned
counsel for the respondents No.8 and 9 and Mr. A. Chaliha, learned counsel
for the respondents No.6 and 7.
2. The husband of the petitioner who was working as a Head Master of
Bonghuli Dangdhara L.P. School in the district of Lakhimpur retired from service
on attaining the age of superannuation on 31/01/2016. After his retirement,
Page No.# 3/5
when the matter was processed for payment of his pensionery benefits, the
communication dated 27.12.2017 (Annexure-4 to the writ petition) of the
Finance and Accounts Officer in the office of the Directorate of Pension, Assam
was made addressed to the Deputy Inspector of School, Dhakuakhana, in the
district of Lakhimpur, Assam, by which, it was provided that during the service
tenure, the husband of the petitioner was paid a salary higher than his actual
scale of pay. Accordingly, by the said communication, the Deputy Inspector of
Schools, Dhakuakhana, Lakhimpur 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 27.12.2017 (Annexure-4), 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 husband of 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
husband of 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/her service tenure because of no fault of his/her, such excess payment
cannot be recovered from the retirement benefits.
Page No.# 4/5
6. The aforesaid provisions of law would squarely be applicable to the facts of
this case and as such, the recovery sought to be made by the communication of
27/12/2017 (Annexure-4) 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 husband of the petitioner because of any overt act of the
husband 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
husband 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
husband of 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 for the
Finance Department, it is provided that as the correct pay of the husband of the
petitioner ought to have been Rs.1315/- per month instead of Rs.1375/- per
month as on January, 1989 (Annexure 5 Page 26 to the writ petition).
Accordingly, the authorities shall proceed with the payment of pension by taking
into account the correct pay that the husband of the petitioner ought to have
received and not the incorrect higher pay that was paid to him.
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.
Page No.# 5/5
10. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
