Disposed

Subhadra Phukan v. the State of Assam and 4 Ors.

Gauhati HC11 Aug 2021WP(C)/2675/2021

Case brief

AI extract

What is this about?

The Court quashed a demand for recovery from the petitioner's pension regarding excess salary paid during service without fault. It directed authorities to assess fault, process pension based on correct pay rather than the erroneous higher pay, and complete this within two months.

What did the court decide?

Petitioner's pension to be processed based on correct pay (Rs. 1555/-) after assessment; recovery barred if no fault found by authorities within two months.

Subhadra Phukan Vs the State of Assam and 4… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010069032021

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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)/2675/2021

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SUBHADRA PHUKAN

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D/O- CHANDRA NATH PHUKON, R/O- CHIRING CHAPORI OPP. JYOTIMORAL SANGHA, P.O. DIBRUGARH, DIST.- DIBRUGARH, PIN- 786001, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 4 ORS

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REP. BY 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 SECONDARY EDUCATION ASSAM KAHILIPARA GHY-19

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5:THE INSPECTOR OF SCHOOLS DIBRUGARH DIST.- DIBRUGARH

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PIN- 78566

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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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JUDGMENT & ORDER (ORAL)

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Date: 11.08.2021

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Heard Mr. PJ Dutta, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned standing counsel for the Secondary Education Department, Government of Assam, Mr. G Pegu, learned counsel for the authorities in the Pension Department as well as Mr. B Gogoi, learned Standing counsel, Finance Department.

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The petitioner who was working as Hindi Teacher in Graham Bazar Girls High School in the district of Dibrugarh, Assam retired from service on attaining the age of superannuation on 31.12.2015. After her retirement, when the matter was processed for payment of her pensionery benefits, the communication dated 18.05.2017 of the Finance and Accounts Officer in the Office of the Directorate of Pension, Assam was made addressed to the Inspector of Schools, Dibrugarh by which it was provided that during her service tenure, the petitioner was paid a salary higher than her actual scale of pay. Accordingly, by the said communication, the Inspector of Schools, Dibrugarh was required to do the needful.

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The said communication has been assailed in this writ petition on the

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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/her service period for no fault of her own.

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In the communication of 18.05.2017, 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 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 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 be applicable to the fact of this case and as such, the recovery sought to the made by the communication of 18.05.2017 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 his service tenure. In the event, if it is found that there was no such

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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.1555/- 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.

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The aforesaid exercise be done by the respondent authorities within a period of two 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

Subhadra Phukan v. the State of Assam and 4 Ors.

Case brief

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Subhadra Phukan v. the State of Assam and 4 Ors.

Case brief

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