Partly allowed

Bimala Barman v. the State of Assam and 5 Ors.

Gauhati HC8 Mar 2021WP(C)/1538/2021

Case brief

AI extract

What is this about?

The Gauhati High Court held that recovery of excess salary from pension is unsustainable if paid without the employee's fault. The court directed authorities to assess the cause of excess payment; if no fault is found, recovery is barred, and pension must be processed based on the correct pay, not the excessive amount.

What did the court decide?

The writ petition disposed of. Authorities directed to assess cause of excess salary; if no petitioner fault found, no recovery and pension to be processed on correct pay within two months.

Bimala Barman Vs the State of Assam and 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010037082021

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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)/1538/2021

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BIMALA BARMAN W/O LATE HARKANTA BARMAN R/O VILLAGE BARAMA BAKSA COLONY PPO BARAMA, DIST NALBARI, ASSAM 781346

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VERSUS

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THE STATE OF ASSAM AND 5 ORS

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

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2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI 781006

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3:THE DIRECTOR OF ELEMENTARY EDUCATION BTR KOKRAJHAR ASSAM 783370

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4:THE DIRECTOR OF PENSION

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HOUSEFED COMPLEX GUWAHATI 781006

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5:THE DISTRICT ELEMENTARY EDUCATION OFFICER BAKSA PO MUSHALPUR DIST BAKSA

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ASSAM 781372

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6:THE DEPUTY INSPECTOR OF SCHOOL BAKSA MUSHALPUR DIST BAKSA ASSAM 78137

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Advocate for the Petitioner : MR. M ISLAM

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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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JUDGMENT

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Date : 08-03-2021

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Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned counsel for respondent No.1, Mr. B. Gogoi, learned counsel for the respondent No.2, Mr. B. Deuri, learned counsel for the respondent No.4, Mr. B. Choudhury, learned counsel for the respondents No.3, 5 & 6.

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The petitioner who was working as a Assistant Teacher of B.K. Bhandari Sishu L.P. School in the district of Baksa, Assam retired from service on attaining the age of superannuation on 31.03.2017. After her retirement, when the matter was processed for payment of her pensionery benefits, the communication dated 30.04.2020 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the Deputy Inspector of Schools, Mushalpur in the Baksa district, Assam, by which, it was provided that during her service tenure, the petitioner was paid a salary higher than her actual scale. Accordingly, by the said communication, the Deputy Inspector of Schools, Mushalpur in the district of Baksa, Assam was required to do the needful.

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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 pensionery 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 30.04.2020, it is noticed that there is no such conclusion of the Finance and Accounts Officer in the office of 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

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had contributed to such payment of excess salary. In the absence of any such material, it cannot be concluded whether the excess salary was paid to the petitioner because of any 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/her service tenure because of no fault of his/her, such excess payment cannot be recovered from the retirement benefits.

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The aforesaid provisions of law would squarely be applicable to the facts of this case and as such, the recovery sought to the made by the communication of 30.04.2020 would not 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 pensionery 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 the correct pay of the petitioner would be Rs.13,500/- per month. Accordingly, 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. 9. The aforesaid exercise be done within a period of two months from the date of receipt of a certified copy of this judgment and 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

Bimala Barman v. the State of Assam and 5 Ors.

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Bimala Barman v. the State of Assam and 5 Ors.

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