Gauhati High Court
Gunabhi Ram Barchetia vs The State Of Assam And 4 Ors on 20 September, 2021
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GAHC010140302021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4530/2021
GUNABHI RAM BARCHETIA
S/O LATE NILAKANTA BORCHETIA,
R/O TAMULI GAON, MORIJHANJI, 785682, DIST JORHAT, ASSAM
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 DIRECTOR SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
5:THE DEPUTY INSPECTOR OF SCHOOLS
SIVASAGAR
ASSAM 78566
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Advocate for the Petitioner : MR B P BORAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
O R D E R
20.09.2021
Heard Mr. BP Borah, learned counsel for the petitioner. Also heard Mr. R
Mazumdar, learned counsel for the respondents in the Secondary Education
Department, Government of Assam, Ms. DD Barman, learned counsel for the
Pension Department and Mr. P Nayak, learned counsel for the respondent in the
Finance Department of the Government of Assam.
2. The petitioner who was working as an Assistant Teacher of Majnara Girls
High School in the Sivasagar district, Assam retired from service on attaining the
age of superannuation on 31.03.2018. After his retirement, when the matter
was processed for payment of his pensionery benefits, the communication dated
17.03.2021 of the Finance and Accounts Officer in the office of the Directorate
of Pension, Assam were made addressed to the Inspector of Schools, Sivasagar,
by which, it was provided that during his service tenure, the petitioner was paid
a salary higher than his actual scale. Accordingly, by the said communication,
the Inspector of Schools, Sivasagar 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.
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4. In the communication of 17.03.2021, 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 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 him.
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 17.03.2021 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
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.
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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. P. Nayak, learned Standing Counsel for the
Finance Department, it is provided that the correct pay of the petitioner would
be Rs.15430/- 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 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
