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2018 DIGILAW 722 (GAU)

GHANASHYAM SAIKIA v. STATE OF ASSAM

2018-05-02

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. C. Goswami, learned counsel for the petitioner, Mr. G. Baishya, learned counsel appearing for the respondent No.2, Mr. K. Nayak, learned Additional Senior Government Advocate appearing for the respondent No.3, Mr. N. Sarma, learned Standing Counsel for the Education Department appearing for the respondent Nos. 1, 4 and 5 and Mr. P. Nayak, learned counsel appearing for the respondent No.6. 2. The petitioner earlier served as the Headmaster of Deoram Takoe Tribal High School and he had superannuated from his service on 31.12.2015. When the matter was processed for payment of his pensionery benefits, the communication dated 21.04.2017 of the Finance and Accounts Officer in the Directorate of Pension, Assam was made addressed to the District Elementary Education Officer, North Lakhimpur, by which it was provided that during his service tenure, the petitioner was paid a salary of Rs.1515/- per month, whereas his actual salary ought to have been Rs.1475/- per month. Accordingly, by the said communication, the District Elementary Education Officer was required to do the needful for recovery of the excess payment made from the pensionery benefits of the petitioner. 3. The said communication has been assailed in this writ petition on the ground that as per the law laid down by the Honble 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. 4. In the communication of 21.04.2017, 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 can be concluded that the excess salary was paid to the petitioner because of no fault of his. 5. In the absence of any such material, it can be concluded that the excess salary was paid to the petitioner because of no fault of his. 5. The law in this respect has been settled by the Honble 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 service tenure because of no fault of his, such excess payment cannot be recovered from the retirement benefits. 6. The aforesaid provisions of law squarely apply to the facts of this case and as such, the recovery sought to the made by the communication of 21.04.2017 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 makes 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 Honble Supreme Court as indicated above. 7. 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. 8. However, as submitted by Mr. P. Nayak, learned Standing Counsel for the Finance Department, it is provided that as the correct pay of the petitioner ought to have been Rs.1475/- per month instead of Rs.1515/- per month, the authorities shall proceed with the payment of pension by taking into account the correct pay that the petitioner ought to have received had the incorrect higher pay was not paid to him. In terms of the above, the writ petition stands disposed of.