Kuladhar Doley vs State Of Assam And 8 Ors

Heard Mr. S Alom, learned counsel for the petitioner. Also heard Mr. PN Sarma, learned standing counsel for the Elementary Education

Department, Mr. G Pegu, learned counsel for the authorities in the Pension Department as well as Mr. A Chaliha, learned Standing counsel, Finance

Department, Assam.

The petitioner who was working as a Head Teacher in 175.No Kekuri Pomua LP school in the district of Lakhimpur Assam retired from service on

attaining the age of superannuation on 31.07.2017. After his retirement, when the matter was processed for payment of his pensionery benefits, the

communication dated 07.01.2020 (Annexure-2 to the writ petition) of the Finance and Accounts Officer in the Office of the Directorate of Pension,

Assam was made addressed to the Deputy Inspector of Schools, Dhakuakhana, in the district of Lakhimpur Assam 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, Dhakuakhana, Lakhimpur 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 07.01.2020 (Annexure-2), 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.

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 SCC 521 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 service tenure because of no fault of his, such excess payment

cannot be recovered from the retirement benefits.

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 07.01.2020 (Annexure-2) 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 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. A Chaliha, learned Standing Counsel for the Finance Department, it is provided that as the correct pay of the

petitioner ought to have been Rs.500/- per month instead of Rs.512/- per month as on July 1983 (Annexure-3 page 18 to the writ petition) .

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 by the respondent authorities within a period of two months from the date of receipt of a certified copy of this

order.

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