Babul Chandra Boro vs State Of Assam And 5 Ors

Heard Mr. P K Das, learned counsel for the petitioner. Also heard Mr. S M T Chistie, learned counsel for the respondents no. 1, 2 and 3 being the

authorities under the Secondary Education Department, Government of Assam, Mr. P Saikia, learned counsel for respondents no. 4 and 5 being the

authorities in the Pension Department as well as Mr. B Gogoi, learned counsel for the respondent no. 6 being the authorities in the Finance

Department.

The petitioner was working as Assistant Teacher of Dhamdhama Higher Secondary School, Nalbari and he retired from service on attaining the

age of superannuation on 30.04.2019. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication

dated 19.05.2020 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the Inspector of

Schools, Nalbari, 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, Tinsukia, Assam was required to do the needful.

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.

In the communication of 19.05.2020, 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 his.

The law in this respect has been settled by the Hon’ble Supreme Court in Shyam Babu Verma and others â€"vs- Union of India and others,

reported in (1994) 2 SCC521 and State of Punjab and Others â€"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.

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 19.05.2020 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.

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.

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 fixed at Rs.5,080/-instead of Rs.5,200/- from 01.01.1996 and Rs.16,010 instead of Rs.16,480/- from 01.01.2006. 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.

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.

In terms of the above, the writ petition stands disposed of.