Gauhati High Court
Jeuti Borah vs The State Of Assam And 4 Ors on 7 March, 2022
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GAHC010063032020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2015/2020
JEUTI BORAH
W/O- MR. ABHIJIT BHUYAN, R/O- TAXI ALI SAMANOY PATH, P.O.
CHAULKORA, PIN- 785640, DIST.- SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE 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
SIVASAGAR
DIST.- SIVASAGAR
PIN- 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
JUDGMENT
Date : 07-03-2022
Heard Mr. B P Borah, learned counsel for the petitioner. Also heard Mr. SMT Chistie,
learned counsel for the respondents in Secondary Education Department, Government of
Assam, Mr. A Chaliha, learned counsel for the respondents in the Finance Department,
Government of Assam and Mr. Girin Pegu, learned Additional Senior Government Advocate for
the Pension Department.
2. The petitioner who was working as a Subject Teacher of Thanuram Gogoi Memorial H.S.
School in the district of Sivsagar, Assam retired from service on attaining the age of
superannuation on 31.01.2018. After her retirement, when the matter was processed for
payment of her pensionery benefits, the communication dated 11.10.2019 of the Finance and
Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to
the Inspector of Schools, Sivsagar, 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, Sivsagar, 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 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 11.10.2019, 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
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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 11.10.2019 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 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. However, as submitted by Mr. B Gogoi, learned Standing Counsel for the Finance
Department, it is provided that the correct pay of the petitioner would be Rs.6075/- 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 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.
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10. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
