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2020 DIGILAW 714 (GAU)

Trishna Sarkar v. State Of Assam

2020-10-15

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. Mofidul Islam, learned counsel for the petitioners. Also heard Mr. M. Nath, learned counsel for the PNRD, Mr. A. Chaliha, learned counsel for the Finance Department and Mr. D. Nath, learned Additional Senior Government Advocate for the authorities under the Pension Department. 2. The petitioners/predecessors-in-interest of the petitioners were all appointed as Secretary Gaon Panchayat/Lower Division Assistant/Office Assistant/Tax Collector/Peon/Chowkidar in different Gaon Panchayats/Anchalik Panchayats/Mahukma Parishads/Zilla Parishads in different districts in the State of Assam. All such appointments were made in the years 1964, 1966, 1974, 1975, 1981, 1984 and 1989, respectively. All the petitioners had either completed the terms of their appointment and retired upon attaining superannuation or they may have died during their service period, but in any view they had rendered the services for a considerable period of service entitling them to pension. 3. By the various communications of the respective authorities either in the Panchayati Raj Institutions or in the Directorate of Pension, Assam, certain amounts are sought to be deducted from the pensionary benefits of the petitioners on the ground that during their service tenure, they were, respectively, paid a higher salary than they were entitled under the law. 4. The detailed particulars of the respective petitioners as regards their appointments, retirements/death during service as well as the amounts claimed by the respondents to have been drawn in excess during the service period are extracted in a tabular form as below: Sl No Name of the petitioners Dates of appointments Dates of termination from services, name of the Posts / Office from terminated, i. e. name of the Zilla Parishads (Z.Ps.) Amounts recovered as Excess drawal / over payment of salaries and allowances from the pensionary benefits including gratuity etc. 1 Smti. Trishna Sarkar, w/o. Late Manik Kumar Sarkar 03.01.1989 as LDA 14.05.2018, expired as LDA under Dhubri Z. P. Rs.2,61,886.00 2 Sri Joy Bahadur Chetry 01.07.1982 as Tax Collector 31.12.2016, Tax Collector, Kopati G.P. under Darrang Z.P. Rs.3,86,120.00 3 Mst. Joygon Nessa, w/o. Late Kasim Uddin Ahmed 17.07.1966 as Tax Collector 31.05.2003, Tax Collector under Barpeta Z. P. Rs.30,978.00 4 Mst. Mir Zahan, w/o. Idris Ali Ahmed, 01.06.1975 24.01.2002, G. P. Secretary (expired) under Barpeta Z. P. Rs.61,321.00 5 Mr. Joygon Nessa, w/o. Late Kasim Uddin Ahmed 17.07.1966 as Tax Collector 31.05.2003, Tax Collector under Barpeta Z. P. Rs.30,978.00 4 Mst. Mir Zahan, w/o. Idris Ali Ahmed, 01.06.1975 24.01.2002, G. P. Secretary (expired) under Barpeta Z. P. Rs.61,321.00 5 Mr. Alauddin Ahmed 26.07.1974, Office Assistant 30.09.1996, retired as Office Assistant under Goalpara Z. P. Rs.24,026.00 6 Sri Sarat Kalita, s/o. Late Palemdra Kalita Secretary 12.01.1996, Secretary (expired) under Dhemaji Z. P. Rs.32,343.00 7 Smti. Ruboshi Brahma, w/o. Late Moni Kanti Brahma 22.02.1984 as Chowkidar 11.08.2014, Chowkidar (expired) under Golaghat Z.P. Rs.73,523.00 8 Mr. Muktar Ali 02.01.1975, Office Peon 30.11.2012, retired as Office Peon under Barpeta Z.P. Rs.48,224.00 9 Sri Monohohan Bayan 01.03.1964 as Peon 31.12.2008, retired Peon under Barpeta Z.P. Rs.72,368.00 10 Sri Gopesh Chandra Namasudra Tax Collector 30.04.2006, retired as Tax Collector under Karimganj Z.P. Rs.1,78,721.00 11 Sri Guneswar Narzery 01.10.1982 as Tax Collector 31.10.2013, retired as Tax Collector under Bongaigaon Z.P. Rs.88,858.00 12 Sri Parimal Paul 09.07.1976 as Grade-IV 31.01.2018, as Secretary of Gatanga G.P. under Nagaon Z.P. Rs.1,04,950.00 13 Md. Azizur Rahman 1974 as Grade-IV 30.11.2016 as Head Assistant under Nagaon Z.P. Rs.2,29,609.00 14 Sri Dilip Kumar Biswas 01.01.1981 as Peon 31.12.2017, retired as Peon under Karimganj Z.P. Rs.1,27,755.00 5. Being aggrieved by the recovery that is sought to be made from the petitioners from the pensionary benefits of the alleged excess salary that were paid to them during the service period, the present writ petition is instituted. The law in this respect is well settled by the 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 being paid to an employee during his/her service tenure because of no fault of theirs, such excess payment cannot be recovered from the retirement benefits. 6. In the instant case also, there is no material produced on record that the excess salary was paid to the petitioners because of any fault of theirs or because of any fraudulent act on their part during the service period. 7. 6. In the instant case also, there is no material produced on record that the excess salary was paid to the petitioners because of any fault of theirs or because of any fraudulent act on their part during the service period. 7. In the circumstance, the recovery sought to be made as regards the excess salary paid to them during the service period would be covered by the proposition of law laid down by the Supreme Court in Shyam Babu Verma (supra) and Rafiq Masih (supra). As such, the recovery sought to be made from the retirement benefits would not be sustainable in law. 8. Considering the matter in its entirety, we require the petitioners to submit individual representations before the authorities who have passed the orders for recovery of the excess salary paid to them from the retirement benefits. Upon such individual applications being filed, the authority concerned shall pass reasoned orders withdrawing the recovery of the excess salary paid to the petitioners in terms of the proposition of law laid down by the Supreme Court as indicated above, unless the authorities do arrive at that such conclusion that petitioners had any fraudulent role during their service period resulting in the excess payments being made. However, we clarify that the pensionary benefits of the petitioners shall be paid to them on the basis of the correct scale of pay that the petitioners were entitled at the time of their retirement/death while in service and the incorrect scale of pay paid to them shall not be made the basis of retirement benefits. 9. If any representation is made as indicated above, the same be given its consideration within a period of 1 (one) month from the date of receipt of such representation. Writ petition stands allowed as indicated above.