Allowed

Girindra Narayan Dakua v. the State of Assam and 4 Ors.

Gauhati HC17 Jun 2022WP(C)/1124/2022

Case brief

AI extract

What is this about?

Petitioner challenged recovery from his pension due to excess service salary paid without fault. Holding that recovery cannot be made for excess payment absent fault, this court directed authorities to assess petitioner's contribution. No recovery allowed if no fault found; pension to be paid at correct pay scale.

What did the court decide?

Authorities to assess if excess salary was due to petitioner's contribution; if none, no recovery. Process pension payment on correct pay scale within two months.

Girindra Narayan Dakua Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010020672022

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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)/1124/2022

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GIRINDRA NARAYAN DAKUA

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S/O- LATE HARMAHAN DAKUA, R/O- VILL. 1 NO. GOLIAHATI, G.C. LANE, BARPETA, P.O., P.S. AND DIST.- BARPETA, ASSAM, PIN- 781301.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS

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REP. BY THE CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST FORCE, PANJABARI, GUWAHATI-781031.

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2:THE DIVISIONAL FOREST OFFICER KAMRUP WEST DIVISION BAMUNIGAON ASSAM PIN- 781141.

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3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06.

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4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT (P AND P.G.) ASSAM DISPUR GUWAHATI-06.

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5:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON

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BELTOLA GUWAHATI-29

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Advocate for the Petitioner : MR H TALUKDAR

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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 : 17-06-2022

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Heard Mr. H Talukdar, learned counsel for the petitioner. Also heard Mr. H Sarma, learned Additional Senior Government Advocate for the Pension and Public Grievances Department, Government of Assam, Mr. D Gogoi, learned counsel for the Forest Department, Government of Assam, Mr. B Gogoi, learned counsel for the Finance Department, Government of Assam and Mr. R K Talukdar, learned counsel for the Accountant General (A & E), Assam.

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The petitioner who was working as a Senior Assistant of Divisional Forest Office, Kamurp West Division, Guwahati in the district of Kamrup, Assam retired from service on attaining the age of superannuation on 31.07.2020. After his retirement, when the matter was processed for payment of his pensionery benefits, the communication dated 22.10.2020 of the Senior Accounts Officer in the office of the Principal Accountant General (A &E), Assam was made addressed to the Divisional Forest Officer, Kamrup West Division, 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 Divisional Forest Officer, Kamrup West Division, 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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In the communication of 22.10.2020, it is noticed that there is no such conclusion of the Senior Accounts Officer in the office of the Principal of Accountant General(A & E), Assam that the excess salary was paid to the petitioner because of any fault of him 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 22.10.2020 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 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 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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It is stated that the salary paid to the petitioner from 14.03.1983 was Rs.513/- per month instead of Rs.470/- per month.

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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.470/- per month

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w.e.f. 14.03.1983. 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 him.

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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. The pension to be paid to the petitioner be as per the correct scale of pay as applicable when he retired from service.

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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

Girindra Narayan Dakua v. the State of Assam and 4 Ors.

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Girindra Narayan Dakua v. the State of Assam and 4 Ors.

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