Disposed

Kayem Uddin Ahmed v. the State of Assam and 5 Ors.

Gauhati HC15 Jun 2022WP(C)/1005/2022

Case brief

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What is this about?

The Gauhati High Court disposed of a writ petition challenging recovery of excess salary from a retired employee's pension. Relying on Supreme Court precedents, the Court held that recovery cannot occur without fault but remanded the matter for the Pension Department to assess if any contribution by the petitioner led to the excess payment.

What the court decided

AI extract

Kayem Uddin Ahmed Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010021592022

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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)/1005/2022

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KAYEM UDDIN AHMED

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S/O LATE RIAZ UDDIN AHMED, RETIRED ASI (OPR.) OF APRO, R/O VILLKALJAR, P.O.-BARBALA, P.S.-HOWLY, DIST-BARPETA, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE COMMISSIONER OF HOME AND POLITICAL DEPARTMENT TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-6

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2:SPECIAL DIRECTOR GENERAL OF POLICE (COMMUNICATION) ASSAM ULUBARI GUWAHATI-7

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3:ADITIONAL DIRECTOR GENERAL OF POLICE (COMMUNICATION) ASSAM ULUBARI GUWAHATI-7

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4:THE DIRECTOR OF POLICE (COMMUNICATION) ASSAM GUWAHATI-7

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5:SUPERINTENDENT OF POLICE (COMMUNICATION) ASSAM ULUBARI GUWAHATI-7

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6:THE ACCOUNTANT GENERAL ASSAM BELTOAL GUWAHATI-2

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Advocate for the Petitioner : MR. P C DEY

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Page No.# 2/4

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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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ORDER

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Date : 15-06-2022

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Heard Mr. P.C. Dey, learned counsel for the petitioner. Also heard Mr. A. Chakraborty, learned counsel for the respondents No. 1 to 5 and Mr. A. Hassan, learned counsel for the respondent No. 6.

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The petitioner who was working in Assam Police Radio Organization (APRO) in the district of Barpeta, Assam retired from service on attaining the age of superannuation on 30.09.2020. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication dated 03.02.2021 of the Supt. of Police (Commn.), Assam, Ulubari, Guwahati-7, was made addressed to the H/A, Pension Cell/Accountant, APRO, HQ, by which, it was provided that during his service tenure, the petitioner was paid a salary higher than his actual scale. Accordingly, by the said communication, the H/A, Pension Cell, 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 his service period for no fault of his own.

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Page No.# 3/4

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In the communication of 03.02.2021, 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 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 cannot be concluded whether the excess salary was paid to the petitioner because of any fault of him.

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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 03.02.2021 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 his service tenure. In the event, if it is found

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Page No.# 4/4

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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 as the scale of pay actually applicable to the petitioner at the time of retirement.

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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

Kayem Uddin Ahmed v. the State of Assam and 5 Ors.

Case brief

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Kayem Uddin Ahmed v. the State of Assam and 5 Ors.

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