Mani Ram Basumatary vs State Of Assam And 9 Ors

Heard Mr. KR Patgiri, learned counsel for the petitioner. Also heard Mr. SMT Chistie, learned standing counsel for the Secondary Education

Department, Ms. RB Bora, learned standing counsel for the BTC, 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 an Assistant Teacher in Ulubari HS School in the district of Chirang, Assam retired from service on attaining

the age of superannuation on 30.06.2020. After his retirement, when the matter was processed for payment of his pensionery benefits, the

communication dated 05.01.2021 of the Finance and Accounts Officer in the Office of the Directorate of Pension, Assam was made addressed to the

Inspector of Schools, Kajalgaon, in the district of Chirang 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 Inspector of Schools, Kajalgaon, Chirang 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 05.01.2021, 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 05.01.2021 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.

It is stated that as per the direction of the respondent authorities, the authority concerned had already prepared the recovery statement of the

excess amount of Rs.4,10,825/- which was paid to the petitioner during his service tenure.

The respondent authorities shall examine as to whether the over drawal of salary by the petitioner was because of any fraud or misrepresentation

on his part or it was because of any fault of the respondent authorities. If the authorities arrive at the conclusion that the over-drawal of salary by the

petitioner was not because of any fault on the part of the petitioner, 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.