Gauhati High Court
Ful Banu vs The State Of Assam And 4 Ors on 20 February, 2019
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/3
GAHC010032922019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1089/2019
1:FUL BANU
W/O- LATE MAINUL HOQUE, R/O- DOBOKA TOWN, WARD NO. 10, P.O-
DOBOKA, P.S- DOBOKA, DIST- HOJAI, ASSAM, PIN- 782440
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECRETARY, PANCHAYAT AND RURAL
DEVELOPMENT, ASSAM, JURIPAR, PANJABARI, GUWAHATI- 781037
2:THE JOINT DIRECTOR
OFFICE OF THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
JURIPAR
PANJABARI
GUWAHATI- 781037
3:THE CHIEF EXECUTIVE OFFICER
MORIGAON ZILLA PARISHAD
MORIGAON
PIN- 782105
4:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI- 781006
5:THE FINANCE AND ACCOUNTS OFFICER
DIRECTORATE OF PENSION
Page No.# 2/3
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI- 78100
Advocate for the Petitioner : MR. P K DAS
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 20-02-2019 Heard Mr. P.K. Das, learned counsel for the petitioner who submits that the petitioner's husband died in harness on 20.06.2016, while serving as a peon in the office of the Morgigaon Zilla Parishad.
The petitioner thereafter applied for family pension. However, the family pension has been delayed by the respondents and instead the Finance and Accounts Officer, in the office of the Directorate of Pension, Assam has written a letter dated 22.06.2018 to the respondent No. 3, stating that there has been a wrong fixation of the pay of the petitioner's husband w.e.f. 01.01.1996, wherein instead of Rs. 2490/-, Rs. 2570/- was fixed and as such, there has been excess payment. The letter also states that if the excess payment was not made due to misrepresentation or fraud on the part of the petitioner's husband, the department may waive the recovery with the due approval of the Finance Department. The letter also states that a new pension proposal may be submitted thereafter.
The petitioner' counsel submits that there is no misrepresentation or fraud on the part of the petitioner's husband in the fixation of the wrong fixation of pay in the year 1996 and as the petitioner's husband has expired on 20.06.2016, there is no question of there being any enquiry against the petitioner's husband after his death.
The petitioner's counsel thus prays that in view of the judgment of the Apex Court in the case of Union of India vs. Rafiq Mashi (White Washer) & Ors. reported in (2015)4 SCC 334 and in the case of Shyam Babu Verma and Others vs. Union of India and Others reported in (1994) 2 SCC 521, no recovery can be made from a Grade-IV employee and nor can any recovery be made due to wrong fixation of pay by the respondents.
Page No.# 3/3 Mr. A. Roy, learned counsel for the respondent Nos. 1, 2, 3 and Ms. R. Gogoi, learned counsel for the respondent Nos. 4 and 5 submit that the present case is covered by the above judgments of the Apex Court.
This Court finds that the petitioners husband died in harness on 20.06.2016 and the wrong fixation of pay having being made on 01.01.1996, there is no question of there being any enquiry against the petitioner's husband at this stage, to prove whether there was any fraud or misrepresentation on the part of the petitioner's husband in fixing the wrong pay scale in 1996.
In the case of Shyam Babu Verma (supra), the Apex Court had held that it would not be just and proper to recover an excess amount, which has already been paid due to wrong fixation of pay, which was made due to no fault of the person receiving the excess pay.
In the case of Rafiq Mashi (supra), the Apex Court held that it would be impermissible in law to recover any excess amount from Class-IV employees. It is also held that there cannot be any recovery when the excess payment has been made for a period in excess of five years, before the order of recovery is made.
In view of the above reasons, this Court finds that the respondents cannot be allowed to make any recovery of pay against the excess payment made to the petitioner's husband due to the wrong fixation of pay made in the year 1996.
In that view of the matter, respondents are directed not to recover any excess amount made to the petitioner's husband from the family pension payable to the petitioner.
The respondents shall immediately submit a fresh pension proposal for payment of family pension to the petitioner, on the basis of the actual pay that the petitioner's husband would have been entitled to at the time of his death. The family pension should be finalized and paid within a period of 3(three) months from the date of receipt of a certified copy of this order.
Writ petition stands disposed of.
JUDGE Comparing Assistant