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2018 DIGILAW 430 (GAU)

Rina Neog Bordoloi v. State of Assam

2018-03-12

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. P. Mahanta learned counsel for the petitioner. Also Ms. DD Barman, learned Addl. Senior Govt. Advocate appearing for the respondent Nos. 1 and 2 and Mr. P. Nayak, learned counsel for the respondent Nos. 4 and 5. 2. The husband of the petitioner served as the Headmaster of Ranganadi Janajati M.E. School, Lakhimpur district and had superannuated on 30.11.2009. It is the grievance of the petitioner that on his death, the petitioner had not been paid the family pension as entitled under the Rules as well as the regular pension to her deceased husband. 3. From the Annexure C & D communications dated 05.09.2013 and 12.08.2016 of the Finance & Accounts Officer in the Director of Pension, Assam, it is noticed that the pension had not been paid to the husband of the petitioner on the ground that there were some excess drawal of salary during his tenure of service and the reasons for such excess is that his pay ought to have been fixed at Rs.1375/- per-month instead of Rs. 1515/- per-month. 4. The law in this respect has been settled by the Hon’ble Supreme Court in Shyam Babu Verma and Rafiq Masih case, wherein, it has been provided that in the event, an employee is paid a higher pay, than he is entitled during his service tenure for no fault of his, such amount cannot be deducted from his pensionary benefit upon superannuation. 5. Ms. D.D. Barman, learned State counsel for the Pension Department states that in the meantime, the Judicial Department of Govt. of Assam has also given a legal opinion in the communication dated 16.02.2018 that as per the law laid down by the Hon’ble Supreme Court, recovery due to excess payment is impermissible under the law, in the event the higher pay was not paid because of any fault of the employee. 6. By following the principle of law laid down by the Hon’ble Supreme Court, this Court is of the view that the communications dated 05.09.2013 and 12.08.2016 of the Finance & Accounts Officer to the District Elementary Education Officer are unsustainable and the authorities cannot deduct any excess payment that was made to the husband of the petitioner for no fault of his during his service tenure. 7. 7. Accordingly, this Court is of the view that as per the law laid down by the Hon’ble Supreme Court in Shyam Babu Verma and Rafiq Masih, the respondent authorities cannot take up a process to deduct the excess payment made to the husband of the petitioner from his pensionary benefits which was not due to any fault of the husband of the petitioner. Accordingly, the communications dated 05.09.2013 and 12.08.2016 are hereby set aside. The respondent authorities are directed to process the arrear pension and family pension of the petitioner as per law without the aforesaid deduction. 8. It is made clear that the respondent authorities shall proceed for payment by arriving at a satisfaction that the enhanced pay was not given to the petitioner because of any fault of his own. 9. Writ petition, accordingly, stands disposed of. 10. Interim order, if any, passed earlier shall stand vacated.