Disposed

Md. Mahibulla Ali v. the State of Assam and 5 Ors.

Gauhati HC2 Apr 2018WP(C)/916/2018

Case brief

AI extract

What is this about?

Petitioner challenged a communication ordering recovery of excess salary from his pension. The Gauhati High Court directed pension authorities to assess if the payment resulted from the petitioner's fault. If no fault was found, recovery is barred under Supreme Court law. Pension will be calculated based on correct pay.

What did the court decide?

The writ petition is disposed of. Pension authorities instructed to assess fault; if none, no recovery. Pension to be calculated on correct pay.

Md. Mahibulla Ali Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010030912018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 916/2018

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1:MD. MAHIBULLA ALI

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R/O YUSUF NAGAR, WARD NO. 1, PO- RANGIA, PIN-781354, DIST. KAMRUP (R), ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI-781006, ASSAM

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2:THE SECRETARY FINANCE DEPARTMENT DISPUR GUWAHATI-781006 ASSAM

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3:THE DIRECTOR OFFICE OF THE DIRECTORATE OF PENSION HOUSEFED COMPLEX DISPUR GUWAHATI-781006 ASSAM

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4:THE DIRECTOR ELEMENTARY EDUCATION DEPARTMENT KAHILIPARA GUWAHATI PIN-781019 ASSAM

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5:THE DISTRICT ELEMENTARY EDUCATION OFFICER AMINGAON DIST. KAMRUP (R) PIN-781031 ASSAM

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6:THE BLOCK ELEMENTARY EDUCATION OFFICER KAMALPUR BLOCK RANGIA KAMRUP (R) PIN-781354 ASSA

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Advocate for the Petitioner : MR. A CHAMUAH

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Advocate for the Respondent : SC, ELEM. EDU

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 02-04-2018

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JUDGMENT & ORDER (ORAL)

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Heard Mr. A Chamuah, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel for the Finance Department, Mr. S.P Bhattacharjee, learned Standing Counsel for the Elementary Education Department, Mr. K. Nayak, leanred counsel appearing for the Pension Department and Ms. P. Bora, learned counsel appearing for the Accountant General, Assam.

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The petitioner joined in the Navarupa Girls’ ME School Rangia on 04.03.1979. Thereafter, the said school was provincialised by the order dated 01.01.1986. The petitioner served as the founder Headmaster of the said school and had superannuated from his service on 30.10.2015. When the matter was processed for payment of his pensionary benefits, the communication dated 20.10.2017 of the Finance and Accounts Officer in the Directorate of Pension, Assam was made addressed to the District Elementary Education Officer, Amingaon, by which it was provided that during his service tenure, the petitioner was paid a salary of Rs.620/- per month, whereas his actual salary ought to have been Rs.560/- 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

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pensionary benefits of the petitioner.

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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 his service period for no fault of his own.

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In the communication of 20.10.2017, 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.

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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 service tenure because of no fault of his, such excess payment cannot be recovered from the retirement benefits.

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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 20.10.2017 would not unsustainable 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 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.

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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.

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However, as submitted by Mr. B. Gogoi, learned Standing Counsel for the Finance Department, it is provided that as the correct pay of the petitioner ought to have been Rs.560/- per month instead of Rs.620/- 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 and not the incorrect higher pay that was paid to him.

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It is further provided that the provisional pension paid to the petitioner shall be continued to be paid till a final decision on his regular pension is taken and given effect to.

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In terms of the above, the writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Md. Mahibulla Ali v. the State of Assam and 5 Ors.

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Md. Mahibulla Ali v. the State of Assam and 5 Ors.

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