Abdul Motleb Prodhani vs The State Of Assam And Ors
2022 Latest Caselaw 1745 Gua

                                                               Page No.# 1/5

GAHC010070842022




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

                       Case No. : WP(C)/2582/2022

         ABDUL MOTLEB PRODHANI
         S/O- KAZIM UDDIN PRODHANI
         R/O- VILLAGE DEBOTTAR HASDAH, PART IV,
         P.O- DEBOTTAR HASDAH
         P.S- GAURIPUR
         DIST- DHUBRI, ASSAM
         PIN-783101



         VERSUS

         THE STATE OF ASSAM AND ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         EDUCATION (SECONDARY) DEPARTMENT, DISPUR, GUWAHATI-6

         2:THE DIRECTOR
          OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI
         ASSAM

         PIN-781019

         3:THE DEPUTY DIRECTOR
          OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI
         ASSAM

         PIN-781019
                                                  Page No.# 2/5

            4:THE DIRECTOR
             OF MADRASSA EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI
            ASSAM

            PIN-781019

            5:THE INSPECTOR OF SCHOOLS
             DIST- DHUBRI
            ASSAM
             PIN-783301

            6:THE COMMISSIONER AND SECRETARY
            TO THE GOVT. OF ASSAM
            FINANCE DEPARTMENT
             DISPUR
             GUWAHATI-6

            7:THE DIRECTOR
             OF PENSION
            ASSAM
             DISPUR
             GUWAHATI

            PIN-781006

            8:THE FINANCE AND ACCOUNTS OFFICER
             DIRECTORATE OF PENSION
            ASSAM
             DISPUR
             GUWAHATI
            PIN-78100

Advocate for the Petitioner   : MR. P DAIMARY

Advocate for the Respondent : SC, SEC. EDU.

Page No.# 3/5

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 23-05-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. N Choudhury, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned counsel for the respondents in the Secondary Education Department of the Government of Assam, Mr. B. Gogoi, learned counsel for the respondents in the Finance Department and Mr. Girin Pegu, learned counsel for the Pension Department.

2. The petitioner who was working as an Assistant Teacher at Sonahat Senior Madrassa in the district of Dhubri, Assam retired from service on attaining the age of superannuation on 30.09.2018. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication dated 28.05.2019 of the Deputy Director of Secondary Education, Assam was made addressed to the Inspector of Schools, Dhubri Assam, 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, Dhubri, 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 his service period for no fault of his own.

4. In the communication of 28.05.2019, it is noticed that there is no such conclusion of the Deputy Director of Secondary Education, Assam that the excess salary was paid to the petitioner because of any fault of his or because Page No.# 4/5

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/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 28.05.2019 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 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.

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.

Page No.# 5/5

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.8100/- 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