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2020 DIGILAW 311 (GAU)

Nipendra Kr Deka v. State Of Assam

2020-02-28

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. A.K Dutta, learned counsel for the petitioner, Mr. KP Pathak, learned standing counsel for the PHE Department, Mr. G. Baishya, learned standing counsel for the Accountant General, Assam as well as Mr. P. Naik, learned Standing counsel, Finance Department. 2. The petitioner was initially appointed as a Junior Engineer on 10.11.1984 and retired from service on 31.01.2017 as Junior Engineer. After his retirement, the petitioner applied for the retirement benefits and pension before the authority. 3. On 27.01.2017, the Executive Engineer (PHE), Mangaldai Division, Mangaldai had issued the order dated 27.01.2017 whereby an amount of Rs.2,53,569/- was sought to be recovered from the petitioner as an excess drawal. 4. 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 pensionary benefits cannot be made in respect of any salary that was paid to an employee during her service period for no fault of her own. The petitioner also prayed for a direction to the respondent authorities to pay the leave encashment benefits of 300 days to the petitioner. 5. In the communication of 27.01.2017, it is noticed that there is no such conclusion of the Executive Engineer (PHE), Darrang, Mangaldai, 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. 6. 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, (1994) 2 SCC 521 and State of Punjab and Others -vs- Rafiq Masih (White Washer) and others, (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. 7. The aforesaid provisions of law squarely applies to the fact of this case and as such, the recovery sought to the made by the communication of 27.01.2017 would not be sustainable in its present form. 7. The aforesaid provisions of law squarely applies to the fact of this case and as such, the recovery sought to the made by the communication of 27.01.2017 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 office of the Accountant General, Assam 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. 8. Further, in the event, the authorities arrive at a situation where the excess payment can no longer be recovered from the pensionary benefits, the authorities shall consider and process the payment of pension to the petitioner as per law. 9. However, as submitted by Mr. P. Naik, learned Standing Counsel for the Finance Department, it is provided that 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. For the purpose of leave encashment of 300 days as entitled under the Rules, the respondent authorities would give a consideration of the said claim of the petitioner and pass a speaking order thereon. 10. In terms of the above, the writ petition stands disposed of.