Gauhati High Court
Rehena Begum vs The State Of Assam And 4 Ors on 20 September, 2021
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GAHC010140282021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4528/2021
REHENA BEGUM
W/O LATE SONA BABA ALI
RESIDENT OF NA ALI SIVASAGAR, PO AND SIVASAGAR, ASSAM, 785640
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, THE PENSION DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM
781006
2:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
LAST GATE
DISPUR
GUWAHATI
ASSAM 781006
3:THE FINANCE AND ACCOUNTS OFFICER
DIRECTORATE OF PENSION
HOUSEFED COMPLEX
DISPUR GUWAHATI 06
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
SIVASAGAR
ASSAM
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
JUDGMENT & ORDER (ORAL)
Date : 20-09-2021
Heard Mr. BP Borah, learned counsel for the petitioner. Also heard Mr. B Kaushik,
learned standing counsel for the Secondary Education Department, Government of
Assam, Ms. D D Barman, learned counsel for the authorities in the Pension
Department as well as Mr. A Chaliha, learned Standing counsel, Finance Department.
2. The petitioner is the wife of Late Sona Baba Ali who was an Assistant Teacher in
6 No. Salaguri Balok Practising LP School and he retired from service on 31.10.2017.
The husband of the petitioner died on 06.08.2021.
3. The petitioner is aggrieved by the order dated 20.11.2018 of the Finance and
Accounts Officer in the office of the Directorate of Pension by which it was provided
that the husband of the petitioner was entitled to a salary of Rs.1475/- per month but
was paid Rs.1515/- per month and therefore the excess amount is to be recovered.
Any amount of recovery from the husband of the petitioner would have to be
construed to be a liability of the deceased husband of the petitioner. After the death of
the husband of the petitioner as the recovery order can be construed to be liability of
her deceased husband, we have to accept that the right to sue and be sued in respect
of such recovery against the deceased husband of the petitioner survives and
therefore, as a legal heir the petitioner has the locus-standi to assail the same.
4. The petitioner's husband who was working as Assistant Teacher of 6 No. Salaguri
Balok Practising LP School, Sivsagar, Assam retired from service on attaining the age of
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superannuation on 31/10/2017. After his retirement, when the matter was processed
for payment of his pensionery benefits, the communication dated 20/11/2018 of the
Finance and Accounts Officer in the Office of the Directorate of Pension, Assam was
made addressed to the Inspector of Schools, Sivsagar by which it was provided that
during his service tenure, the husband of the petitioner was paid a salary higher than
his actual scale of pay. Accordingly, by the said communication, the Inspector of
Schools, Sivsagar was required to do the needful.
5. 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 pensionary
benefits cannot be made in respect of any salary that was paid to an employee during
his/her service period for no fault of his own.
6. In the communication of 20/11/2018, 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 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 husband of the petitioner because of any fault of his.
7. 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 recovered from the retirement benefits.
8. The aforesaid provisions of law is squarely applicable to the facts of this case and
as such, the recovery sought to the made by the communication of 20/11/2018 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 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
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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.
9. Further, in the event, the authorities arrive at a situation where the excess
payment can no longer be recovered from the pensionary benefits, the authorities shall
process the payment of pension to the petitioner as per law.
10. However, as submitted by Mr. A Chaliha, learned Standing Counsel for the
Finance Department, it is provided that as the correct pay of the petitioner ought to
have been Rs.1475/- per month, 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.
11. In determining the family pensionery benefits that the petitioner may be entitled
the authorities to take into account the correct scale of pay applicable to the deceased
husband of the petitioner and not the incorrect scale of pay based upon which he was
earlier paid his salary.
12. 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.
13. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
