Leelawati Boro vs The State Of Assam And 4 Ors
2022 Latest Caselaw 729 Gua

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GAHC010036202022




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

                          Case No. : WP(C)/1390/2022

         LEELAWATI BORO
         D/O- LATE RABIRAM BORO, VILL. AND P.O. GARCHUK, P.S. GARCHUK,
         DIST.- KAMRUP(M), ASSAM, PIN- 781035.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM (HIGHER) EDUCATION DEPARTMENT, DISPUR-06, ASSAM

         2:THE DIRECTOR OF TECHNICAL EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-781019.

         3:THE PRINCIPAL
         ASSAM ENGINEERING COLLEGE
          JALUKBARI
          GUWAHATI-781013.

         4:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-781029.

         5:THE TREASURY OFFICER
          KAMRUP(METRO) TREASURY
          PANBAZAR
          GUWAHATI
         ASSAM-781001
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Advocate for the Petitioner   : MR. R BORO

Advocate for the Respondent : SC, HIGHER EDU

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) 02.03.2022

Heard Mr. R Boro, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned standing counsel for the Higher Education Department, Government of Assam, Ms. M Das, learned counsel for the Principal Accountant General (A&E), Assam as well as Mr. A Chaliha, learned counsel for the Treasury Officer, Kamrup(M), Assam.

2. The petitioner who was initially working as a Head Assistant of Assam Engineering College, Guwahati in the district of Kamrup(M), Assam retired from service on attaining the age of superannuation on 30.09.2020. After her retirement, when the matter was processed for payment of her pensionery benefits, the communication dated 14.10.2020 & 01.07.2021 of the Senior Accounts Officer in the Office of the Accountant General (A&E), Assam was made addressed to the Principal AEC, Assam by which it was provided that during her service tenure, the petitioner was paid a salary higher than her actual scale of pay. Accordingly, by the said communication, the Principal AEC, Assam was required to do the needful.

3. The said communication has been assailed in this writ petition on the Page No.# 3/4

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 service period for no fault of his own.

4. In the communication of 14.10.2020 & 01.07.2021, it is noticed that there is no such conclusion of the Senior Accounts Officer in the Office of the Accountant General (A&E), 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, such excess payment cannot be 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 communication of 14.10.2020 & 01.07.2021. 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 Accountant General (A&E), Assam 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 Page No.# 4/4

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. It is stated that the petitioner was paid Rs.46,790/- per month, but the Department is of the view that it ought to have been Rs.44,070/- and, accordingly, by the order impugned the recovery is sought to be made from the pensionery benefits of the petitioner. In view of the law laid down, 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 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

Comparing Assistant