Dhanada Phukon VsState Of Assam And 3 Ors

Heard Mr. S.K. Gogoi, learned counsel for the petitioner. Also heard Mr. S.R. Barua, learned counsel for the respondent No.2 being the Pension Department and Mr. N.J. Khataniar, learned counsel for the respondents No.1, 3 and 4 being the authorities under the Elementary Education Department.

The respondent No.2 is read to be represented by the Commissioner & Secretary and not by the Director.

The petitioner was serving as an Assistant Teacher in the Japisajia Gohain Lower Primary School in the Nalbari district and upon completing her tenure of service retired on 31.12.2014.

The grievance raised is that after retirement the petitioner has not been paid the final pension although she is being paid the provisional pension.

Being aggrieved, the petition is instituted. The respondent authorities by referring to the communication dated 09.06.2017 from the Finance and Accounts Officer in the Directorate of Pension, Assam takes a stand that during her service period, the petitioner had overstayed in service for one year and therefore, there is a requirement for recovery of the salary paid to her for the said period of one year.

In view of such requirement of making the recovery, the final pension of the petitioner had not been paid. We are unable to accept the said contention on behalf of the respondents. Whether it is on the basis of the salary the petitioner received on the last date of her service when she actually ought to have retired or it would be on the basis of the salary she would have received on the day actually she had retired, there cannot be a situation where the respondents can deny the petitioner from being processed to a final pension. If there is an issue with the respondents that the petitioner has to refund the salary paid to her for the excess one year of service, the same would be covered by an earlier judgment of this Court dated 04.10.2021 in WP(C) 4622/2021, wherein, by relying on the decision of the Supreme Court in State of Bihar & Ors., -vs- Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 paragraph-23 and 24, a conclusion was arrived that if an employee had overstayed in service and there was no allegation of misrepresentation or fraud by the employee resulting in such overstay and in a situation where the respondent authorities had allowed the petitioner to work and got the work done by her and paid the salary, it would be unfair to deduct the amount that paid to her.

Accordingly, it was provided that if the respondents are of the view that there was a misrepresentation or fraud committed by the petitioner, a reasoned order thereof be passed by giving the petitioner an opportunity of hearing. If the authorities upon undertaking the exercise arrives at its conclusion that the overstay was not because of any misrepresentation or fraud committed by the petitioner, in such event, the salary paid for alleged excess period in service be not recovered.

Accordingly, in the instant case also, the Director of Elementary Education shall make an enquiry by giving the petitioner an opportunity whether the overstay was because of misrepresentation or fraud by the petitioner. If the conclusion to be arrived would be that there was no fraud or mis-representation by the petitioner, the salary for the excess period shall not be recovered and if the conclusion would be that there was misrepresentation or fraud, a reasoned order be passed and the petitioner be informed.

But in either view of the matter as provided by the Supreme Court in State of Bihar & Ors., -vs- Pandey Jagdishwar Prasad (supra), the petitioner would be entitled to her pensionary benefit on the basis of the salary she received as on 31.12.2013 when according to the respondent she ought to have actually retired. Accordingly, the respondent authorities shall process the proposal for final pension of the petitioner by taking her salary as on 31.12.2013 when she ought to have retired.

Further if the authorities after undertaking the exercise as indicated above arrives at its conclusion that there is a requirement under the law to effect the recovery of the salary paid for the excess period of one year the same can only be done by following the due procedure of law under the pension Rules, i.e. the recovery cannot be made at an excess of 50% of the actual pension payable to the petitioner per-month.

The final pension be processed within a period of three months from the date of receipt of the certified copy of the order and in doing so, the authorities under the Elementary Education Department and Pension Department shall cooperate and do the needful.

Writ petition stands allowed of in the above terms.