Calcutta High Court (Appellete Side)
For The vs Union Of India on 13 May, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
13.5.2011 W.P. 7209(W) of 2011
Mr. Ekramul Bari.
... For the Petitioner.
The petitioner who was an Assistant Teacher of
Kurmail S. High School in the District of Dakshin Dinajpur,
retired from service on superannuation with effect from 31st
January, 2011. His retiral benefits and/or pensionary
reliefs have not yet been settled due to certain lacuna in the
petitioner's pension paper submitted by the school
authority. The defects and/or the lacunae which were
detected by the Deputy Director of Accounts while
processing the pension paper of the petitioner was recorded
in his letter addressed to the District Inspector of Schools
(S.E.) Dakshin Dinajpur vide Memo No. D/AC (Edn)/Pen.-
D.D.278/2010 dated 30th June, 2010 appearing at page 30
of the writ petition.
On perusal of the said communication made by
the said Deputy Director of Accounts to the concerned
District Inspector of Schools, this Court finds that the
following defects were noted therein :
1.Memo No. 911/Jr., Dt. 10-12-71, recorded in
the Service Book is to be enclosed herewith the
pension papers.
2. Incumbent's signature and Head of the
institution's signature is wanting at page 11 of
Service Book.
3. Point 1 & 9 of necessary certificates is to be
filled up properly.
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4. Period of contribution of CPF as recorded in
Treasury Challans does not tally with clearance
certificate.
5. Leave Account is not in order.
6. Attested photocopy of arrear claim of ROPA -
'98 is required for verification
Apart from the aforesaid defects it was also
observed that the petitioner was paid some amount in
excess of his entitlement during the tenure of his service
and unless the said excess amount is recovered from the
petitioner, the retiral benefits and/or the pensionary reliefs
of the petitioner cannot be settled. The concerned District
Inspector of Schools by his letter dated 20th January, 2011
asked the petitioner to refund such excess payment and
submit the xerox copy of the treasury challan showing
refund of the overdrawn amount for the period from 1st
April, 1981 to 31st January, 2011 to the Government to the
office of the undersigned within 31st January, 2011without
fail.
The instant writ petition has been filed by the
petitioner by challenging the legality and validity of such
demand for refund of the excess amount from the petitioner
by the authorities.
Inspite of service none appears on behalf of the
state respondents to oppose the petitioner's prayer at the
time when this application is taken up for hearing.
3Heard Mr. Bari, learned Advocate, appearing for the petitioner. Considered the materials on record, including the order impugned.
Let me now consider as to how far the concerned authority was justified in withholding the payment of the retiral benefits and/or the pensionary reliefs of the petitioner in the facts of the instant case.
So far as the defects which are mentioned in Item No. 1 to 6 in the letter written by the Deputy Director of Accounts to the District Inspector of Schools on 30th June, 2010 are concerned, this Court holds that those are all curable defects, but unless those defects are rectified the retiral benefits and/or the pensionary reliefs cannot be granted to the petitioner. As such, the petitioner is directed to rectify those defects, if such defects have not been rectified earlier.
So far as the proposal of the Deputy Director of Accounts for recovery of the overdrawal amount from the petitioner for the period from 1st April, 1981 to 31st January, 2011 is concerned, this Court holds that the very identical question has already been answered by the Hon'ble Supreme Court in the case of Shyambabu Varma - vs - Union of India, reported in 1994(2), SCC, Page 521 wherein it was held that recovery of overdrawal salary from a retired person out of his retiral benefits is not permissible, unless it is found that such excess payment was made to the petitioner during the tenure of his service due to his wrong pay fixation and such wrong pay fixation was made on the 4 basis of fraudulent misrepresentation of the employee concerned in support of his claim for higher scale of pay.
Here is the case where this Court finds that it is not the case where the State respondents claim that such over-payment was made to the petitioner due to his wrong pay fixation by the authority on the ground of any mis- representation made by the petitioner. As such, this Court holds that, if any, excess payment is made by the petitioner due to erroneous pay fixation by the authority concerned where the petitioner had no role to play, such excess payment, in my view, cannot be realised from the petitioner after his retirement from his retiral dues.
Under such circumstances, this Court holds that the State respondents are not entitled to recover any amount on account of such excess payment from the petitioner out of his retiral dues.
The State respondents are, thus, directed to pay the retiral dues of the petitioner, including the pensionary reliefs on the basis of her last drawn salary. The entire exercise in this regard should be completed positively within a period of eight weeks from the date of communication of the order, subject to rectification of the defect as mentioned in item no. 1 to 6 in the letter dated 30th June, 2010 written by the Deputy Director of Accounts, addressed to the District Inspector of Schools being annexure 'P-4' to this writ petition at page 30 thereof.
In the event, the entire retiral dues are not paid to the petitioner within the time as aforesaid, the State 5 Government will be liable to pay interest @8% per annum o such admissible dues of the petitioner from the date of his retirement upto the date of his actual payment thereof.
ac (Jyotirmay Bhattacharya, J.)