Gauhati High Court
Manoj Kumar Basumatary vs The State Of Assam And 6 Ors on 20 May, 2022
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GAHC010093852022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3252/2022
MANOJ KUMAR BASUMATARY
S/O- LATE DAWA RAM BASUMATARY, VILL.- BHOGPARA, P.O.
NARAYANPUR, DIST. BAKSA, BTR, ASSAM, PIN- 781372.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT,
DISPUR, GUWAHATI-781006.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE DIRECTOR OF ELEMENTARY EDUCATION
BTR
KOKRAJHAR
ASSAM
PIN- 783370.
4:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
GUWAHATI-06.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
BAKSA
BTR
ASSAM
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P.O. MUSHAPUR
DIST. BAKSA
ASSAM
PIN- 781372.
6:THE DEPUTY INSPECTOR OF SCHOOLS
MUSHALPUR
BAKSA
P.O. MUSHALPUR
DIST. BAKSA
ASSAM
PIN- 781372.
7:THE BLOCK ELEMENTARY EDUCATION OFFICER
MUSHALPUR
BAKSA
P.O. MUSHALPUR
DIST. BAKSA
ASSAM
PIN- 781372
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 20-05-2022
Heard Mr. M Islam, learned counsel for the petitioner. Also heard Mr. P N Sarma,
learned standing counsel for the Elementary Education Department, Government of Assam,
Mr. S R Barua, learned counsel for the authorities in the Pension Department and Mr. A
Chaliha, learned Standing counsel, Finance Department, Government of Assam as well as Ms.
R B Bora, learned counsel for the authorities in the BTC.
2. The petitioner who was working as a Head Teacher of Bhogpara LP School in the district
of Baksa retired from service on attaining the age of superannuation on 31.12.2017. After his
retirement, when the matter was processed for payment of his pensionery benefits, the
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communication dated 20.08.2018 of the Finance and Accounts Officer in the Office of the
Directorate of Pension, Assam was made, addressed to the Deputy Inspector of Schools,
Baksa, by which it was provided that during his service tenure, the petitioner was paid a
salary higher than his actual scale of pay. Accordingly, by the said communication, the Deputy
Inspector of Schools, Baksa 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 20.08.2018, 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 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 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 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 20.08.2018 to the extent of
recovery 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 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
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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. R Barpujari, learned standing counsel Finance
Department, it is provided that the correct pay of the petitioner would be Rs. 900/- per
month w.e.f. 01.01.1996. 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 by the respondent authorities within a period of two
months from the date of receipt of a certified copy of this order.
10. In processing the pension, if any other documents are required by the authorities, the
petitioner shall cooperate.
11. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
