Tarun Narzary vs State Of Assam And 5 Ors

Heard Mr. P.K. Das, learned counsel for the petitioner. Also Mr. N. Sarma, learned Standing Counsel for the Secondary Education Department, as well as Mr. R. Borpujari, learned counsel for the Finance Department and Ms. M.D. Bora, learned counsel for the Pension Department.

The petitioner who was appointed as an Assistant Teacher in the Dotma Girls M.E. School 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 vide the order/communication dated 03.08.2018 of the Finance & Account Officer, Directorate of Pension addressed to the Inspector of Schools, Kokrajhar, it was provided that during his service tenure the petitioner was paid the graduate scale of pay instead of intermediate scale of pay. Therefore, vide the aforesaid communication, the Inspector of School, Kokrajhar was required to do the needful to recover the excess amount paid to the petitioner.

The said order/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 over payment that was paid to an employee during his/her service period for no fault of his/her own.

In the order/communication dated 03.08.2018, it is noticed that there is no such conclusion that the excess payment was made to the petitioner because of any fault of his or because of any overt act on his part, which had contributed to such excess payment. In the absence of any such material, it cannot be concluded whether the excess payment was made 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 -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.

The aforesaid provisions of law squarely applicable to the fact of the case and as such, the recovery sought to be made from the pensioary benefit of the petitioner by the communication of 03.08.2018 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, the 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. The authorities shall now proceed with the payment of pension by taking into account the correct pay that the petitioner ought to have received.

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.