Disposed

Md. Habibur Rahman Laskar v. the State of Assam and 5 Ors.

Gauhati HC7 Dec 2020WP(C)/4317/2020

Case brief

AI extract

What is this about?

In a writ petition, the Gauhati High Court held that recovery of excess salary from pensionary benefits is prohibited if paid without employee fault, relying on Supreme Court precedents. The Court directed authorities to assess if the petitioner contributed to the error; if not, recovery is barred and pension must be calculated using the correct pay.

What did the court decide?

The excess salary cannot be recovered from pensionary benefits if not due to petitioner's fault; pension to be computed on correct pay.

Md. Habibur Rahman Laskar Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010140972020

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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)/4317/2020

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MD. HABIBUR RAHMAN LASKAR S/O. LT. ISKANDAR ALI LASKAR, R/O. NIMAICHANDPUR PT-II, P.O. NIMAICHANDPUR, DIST. HAILAKANDI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI-06.

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2:THE DIRECTOR OF ELEMENTARY EDUCATION

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ASSAM KAHILIPARA GHY.-19.

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3:THE DIRECTOR OF PENSION

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ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-06.

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4:THE TREASURY OFFICER

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HAILAKANDI TREASURY P.O. HAILAKANDI DIST. HAILAKANDI ASSAM PIN-788151.

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5:THE DISTRICT ELEMENTARY EDUCATION OFFICER

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HAILAKANDI P.O. HAILAKANDI DIST. HAILAKANDI ASSAM PIN-788151

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6:THE BLOCK ELEMENTARY EDUCATION OFFICER

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LALA P.O. LALA DIST. HAILAKANDI ASSAM PIN-788163

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Advocate for the Petitioner : MR. M KHAN

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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 : 07-12-2020

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JUDGMENT & ORDER (ORAL)

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Heard Mr. M Khan, learned counsel for the petitioner. Also heard Mr. NJ Khataniar, learned standing counsel for the Elementary Education Department, Mr. SR Barua, 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 in Kalacherra Brojadhan Tombi Senior Basic School LP School on 11.03.1082 and subsequently the petitioner was transferred to Sushil Paul MV School on 21.05.1983. While serving as such at Sushil Paul MV School, the petitioner was appointed as Science Graduate Teacher in Nimaichandpur ME Madrassa by the order dated 19.11.1991 and the petitioner joined as Science Graduate Teacher on 01.12.1991. The petitioner was thereafter promoted as Headmaster in Bakrihawar Janakalyan ME Madrassa and he served as Headmaster w.e.f. 01.01.2014 till his retirement i.e. 31.07.2018. After his retirement, the petitioner

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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 08.05.2019 to the District Elementary Education Officer, Hailakandi that the pay of the petitioner should have been fixed at Rs.4600/- on 01.01.1996 instead of Rs.4720/- per month with DNI on 01.12.1996 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 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 08.05.2019, 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 08.05.2019 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 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

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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. 4600/- per month instead of Rs.4720/- 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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The pension process be brought to its logical end within a period of 3(three) months from the date of receipt of a certified copy of this order.

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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. Habibur Rahman Laskar v. the State of Assam and 5 Ors.

Case brief

What is this about?

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Md. Habibur Rahman Laskar v. the State of Assam and 5 Ors.

Case brief

What is this about?

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