Calcutta High Court (Appellete Side)
Asish Bindu Maiti vs State Of West Bengal & Ors on 9 September, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
09.09.2011. W. P. No. 9936 (W) of 2011
Asish Bindu Maiti
versus
State of West Bengal & Ors.
Mr. Saktipada Jana ... For the Petitioner.
Md. Talay Masood Siddique ... For the State.
The petitioner who was an approved Assistant Teacher of
Sundarban Adarsha Vidyamandir in the district of South 24-
Parganas retired from service on superannuation with effect
from 31.03.2010. Pension papers of the petitioner were
submitted by the school authority with the concerned District
Inspector of Schools on 31.10.2009.
Though, the pension papers of the petitioner were sent
to the concerned District Inspector of Schools before
retirement of the petitioner, but the retiral benefits of the
petitioner have not been paid to him till date.
The reason for which the retiral benefits of the petitioner
could not be settled is reflected in the correspondence made
between the concerned District Inspector of Schools (S.E.),
South 24-Parganas to the Headmaster of the said school on
13th June, 2011 wherefrom it appears that due to wrong pay
fixation of the petitioner some excess payment was made to
him.
Thus, the retiral benefits of the petitioner have not been
paid to him till date as the excess payment has not been
recovered from him.
The question regarding legality of such deduction on
account of overdrawal and/or excess payment of salary from
the retiral benefits of a retired person has already been decided
2
by the Hon'ble Supreme Court in the case of Shyambabu
Varma Vs. Union of India & Ors. reported in (1994) 2 S.C.C.
page 521 wherein it was held that if a retired person had no
hand either in the process of refixation of pay and further
payment, the overdrawal amount cannot be adjusted and/or
realised from the retiral benefits of such retired person after
his retirement.
Thus, this Court by relying on the aforesaid decision of
the Hon'ble Supreme Court holds that if any amount is found
to have been paid to the petitioner in excess of his entitlement
during the tenure of his service due to wrong pay fixation by
the concerned respondents, the said respondents are neither
entitled to adjust such overdrawal amount against the retiral benefits of the petitioner nor the said overdrawal amount can be realised from the retiral benefits of the petitioner.
Under such circumstances, this Court holds that the respondents were not justified in withholding the payment of the retiral dues of the petitioner.
This Court, thus, disposes of this writ petition by directing the concerned authorities to calculate the retiral dues of the petitioner by taking into consideration his last drawn salary without deducting any amount on account of overdrawal in pay from the retiral dues of the petitioner and issue pension payment order accordingly, so that the entire retiral dues including the pensionary reliefs can be paid to the petitioner positively within eight weeks from the date of communication of this order.
It is made clear that in the event such payment is not made to the petitioner within the period as aforesaid, the State Government will be liable to pay interest @10% per annum on the delayed payment of gratuity from the date of retirement of the petitioner upto the actual payment thereof. such payment 3 should also be made along with the payment of the retiral dues to the petitioner.
Re: Payment of Pensionary Relief This Court is of the view that though in view of the decision of the Hon'ble Supreme Court in the case of Shyambabu Varma Vs. Union of India & Ors. (supra), recovery of the excess payment made to the petitioner due to wrong pay fixation by the concerned authority in which the petitioner had no fraudulent role to play, is not permissible after his retirement out of his retiral dues, but the Hon'ble Supreme Court in the said decision has not held that the concerned authority is required to go on paying the current pensionary relief on the basis of the last drawn salary which was not admissible to him as per the law.
This Court, thus, holds that though recovery of the excess payment from the retired person from his retiral dues is not permissible, but the retired person cannot claim the pensionary relief for the current months on the basis of his last drawn salary which, in fact, was not admissible to him on the date of his retirement.
In my view, State cannot be burdened with such recurring liability for payment of pension for the current months by giving effect to such erroneous pay fixation even after such error is detected. However, I make it clear that any amount of money paid to any retired person on account of pension in excess of his entitlement cannot be recovered from him.
As such, this Court directs the concerned authority to ascertain the entitlement of the petitioner with regard to his pay and allowance which was admissible to him as per law as 4 on the date of his retirement and calculate the admissible pensionary relief payable to the petitioner accordingly.
The concerned authority is, thus, directed to complete the entire exercise in this regard within six weeks from date, so that the ultimate payment of the arrear pensionary relief reaches the hands of the petitioner within two weeks thereafter.
The concerned authority is also directed to go on paying the current pension regularly at the rate to be fixed in the manner as aforesaid.
The writ petition is, thus, disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocate of the parties as early as possible.
(JYOTIRMAY BHATTACHARYA, J.) dc.