Disposed

Gita Boruah v. the State of Assam and 5 Ors.

Gauhati HC17 Feb 2020WP(C)/1078/2020

Case brief

AI extract

What is this about?

In a writ petition challenging an order to recover excess salary drawn by the petitioner during service, the Gauhati High Court relied on Supreme Court precedents holding such recovery is impermissible if the excess payment was not due to any fault of the employee. The court directed the pension authorities to assess the cause of the excess payment and pay pension either by deducting the excess or

What did the court decide?

The writ petition is disposed of; authorities to assess contribution of petitioner towards excess payment and pay pension based on correct pay if no fault found.

Gita Boruah Vs the State of Assam and 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010029482020

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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) 1078/2020

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1:GITA BORUAH

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W/O- LT. JITENDRA NATH BORUAH, R/O- JHANJI LEPHERA GAON, P.O. JHANJI, PIN- 785683, DIST.- SIVASAGAR, 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 COMM. AND SECY. TO THE GOVT. OF ASSAM, THE PENSION DEPTT., SACHIVALAYA, DISPUR, ASSAM- 781006.

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2:THE DIRECTOR OF PENSION HOUSEFED COMPLEX LAST GATE DISPUR GHY. ASSAM- 781006.

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3:THE FINANCE AND ACCOUNTS OFFICER DIRECTORATE OF PENSION HOUSEFED COMPLEX DISPUR GHY- 06.

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4:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY.-19.

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5:THE DISTRICT ELEMENTARY EDUCATION OFFICER SIVASAGAR DIST.- SIVASAGAR

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PIN- 785661.

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6:THE DY. INSPECTOR OF SCHOOLS ELEMENTARY EDUCATION SIVASAGAR DIST.- SIVASAGAR PIN- 785661

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Advocate for the Petitioner : MR. B P BORAH

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 17-02-2020

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JUDGMENT & ORDER (ORAL)

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Heard Mr. BP Borah, learned counsel for the petitioner. Also heard Ms. P Chakraborty, learned standing counsel for the Elementary Education Department, Mr. SK Hazarika, learned State counsel for the authorities in the Pension Department as well as Mr. A Chaliha, learned Standing counsel, Finance Department.

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The petitioner was initially appointed as an Assistant Teacher of Jhanji Balika LP School and subsequently retired from Gohain Kachari LP School under Sivasagar District on 31.01.2015. After her retirement, the petitioner applied for the retirement benefits and pension before the authority.

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The Finance & Accounts Officer in the Director of Pension, Assam had made a communication dated 24.03.2017 to the Deputy Inspector of Schools, Sivasagar that the pay of the petitioner should have been fixed at Rs.575/- on 01.03.1986 instead of Rs.585/- per month and hence there was an excess drawal from that date.

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The said communication has been assailed in this writ petition on the ground that as per the

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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.

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In the communication of 24.03.2017, 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 her or because of any overt act on her 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 her.

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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 24.03.2017 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 make an assessment as to whether there was any contribution on the part of the petitioner in receiving such excess salary during her 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. A Chaliha, learned Standing Counsel for the Finance Department, it is provided that as the correct pay of the petitioner ought to have been Rs.575/- per month instead of Rs.585/- 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 her.

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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

Gita Boruah v. the State of Assam and 5 Ors.

Case brief

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Gita Boruah v. the State of Assam and 5 Ors.

Case brief

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