Calcutta High Court (Appellete Side)
For The vs State Of Bihar on 26 April, 2012
Author: Harish Tandon
Bench: Harish Tandon
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4.2012 W.P. NO. 12973 (W) OF 2010
Mr.Srikanta Dutta
For the Petitioner.
In spite of service , no one appears on behalf of the respondents, when the matter is called
on for hearing at the second call.
The writ petitioner has impugned the action of the respondent authorities for deducting a sum of Rs. 1,33,967/- at the time of disbursement of the retiral benefits.
The petitioner was appointed as Head Teacher in Chotohazarpur Primary School P.O. Tejhati, P.S. Nalhati District Birbhum and attained the age of superannuation on 1st January, 1992. The petitioner duly exercised an option under ROPA 1981 and ROPA 1990, and such exercise has duly been recorded in his service Book. It is the further case of the writ petitioner that revised scale of pay and fixation of the scale of pay was duly approved by the School Authority in his service book and the same were duly approved time to time by the District Inspector of Schools being the respondent No. 3. After superannuation, the authorities concerned sanctioned the pensionary benefits including gratuity and ultimately issued Pension Payment Order on 11.10.1993 vide P.P.O. No. BIR/S/P/4174 being Memo No. 6746/P of the event date.
The grievance of the petitioner is that in the said Pension Payment Order, the respondent authorities have wrongly, illegally and arbitrarily deducted a sum of Rs. 1,33,967/- from Gratuity on account of overdrawal without giving any opportunity of hearing or without assigning any valid reasons therefor.
Mr. Dutta, the learned advocate appearing for the writ petitioner submits that such an action on the part of the respondent authorities is unilateral and without giving an opportunity of hearing to the petitioner and also without serving any notice. Such an action of unilateral deduction of any amount, while preparing retiral benefits, is per se illegally, arbitrary and in gross violation of the principle of natural justice. He further submits that point of adjustment 2 and/or deduction arose in many other cases before this court and it was held uniformly. The authorities have no right to adjust and/or deduct any amount without giving an opportunity of hearing or assigning valid reason except in case of fraud or other like nature.
A reliance has been placed upon the following judgments:
1. 2007(2) CLJ(Cal) page 131.
2. 2009(1) Supreme 163
3. Unreported judgment dated 7.5.2010 passed in W.P. No. 3351(W) of 2010;
4. Unreported judgment dated 7.7.2010 passed in W.P. No. 1075(W) of 2010;
5. 2009(2) CLJ 259 Having considered the submissions made by the writ petitioner, there is no manner of doubt that there has been a unilateral deduction by the respondent authorities for a sum of Rs.
1,33,967/- from the Gratuity on account of overdrawal. The aforesaid deduction is made unilaterally and without giving any notice upon the writ petitioner or an opportunity of being heard. Even in case of the payment in excess, the relief against recovery of excess amount can be granted by the Court. The apex court in a case of Syed Abdul Qadir & Ors -vs- State of Bihar & Ors., reported in 2009(1) Supreme 163 observed as follows :
25. We now come to the question as to whether the amount that has been paid in excess to the appellants -teachers should be recovered or not. It is the submission of the learned counsel appearing on behalf of the appellants-teachers that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on their part.
26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing resolution dated 18.12.1989, were ignorant of the amended provisions of the FR 22-C and it is their inaction, negligence and carelessness which has created all the chaos in the case on hand. Further, until January 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the accountant General, government of Bihar, on a 3 query being made to him by the director of secondary Education, who is the head of the Department of the Secondary Education in the state of Bihar, vide his letter dated 8.1.1999, responded to the said query that the officials of the Education Department came to know of the amendment in FR 22C. That apart, it also appears from the record produced before us that while the Finance Department of the government of Bihar was in favour of making the amended provisions of FR.22C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human resource Development , Government of Bihar , wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR 22C to its teachers, unaware of the fact that even under FR 22C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the state of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department was the competent authority. In this very affidavit, the Finance department while admitting that the pay fixation by the education department was wrong stated as under:
"... the fixation of pay under Fundamental rule 22C has wrongly been made at it was not in existence Pay fixation on the basis of a non-existent rule is a bona fide mistake."
27. this court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order., which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in 4 the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case , it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
28. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance department had in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
In a case of Monohar Kumar Mitra -vs- State of West Bengal & Ors., reported in 2007(2)CLJ(Cal) page 131 , this court, while dealing with the case of an excess payment on account of an increment over the scale of pay, was pleased to observe that the authorities have no right to recovery the overdrawn amount if the same has been paid by mistake at the instance of the respondent authorities and disallowed the adjustment and/or recovery of any excess amount paid to the petitioner therein.
In the similar facts as in the instant writ application, this court in the case of Radha Gobinda Das -vs- the State of West Bengal & Ors, unreported judgment passed in W.P. No. 1075 (W) of 2010 dated 7.7.2010 uniformly decided that the unilateral adjustment by 5 authorities concerned on account of overdrawal cannot be made unless a case of misrepresentation or of fraud is made and ultimately directed the respondent authorities to refund the said amount illegally deducted.
The Division Bench of this Court, in the case of The State of West Bengal & Ors. -vs- Harekrishna Sardar & Anr reported in 2009(2) CLJ 259 held that the unilateral deduction without issuance of any show cause or offering an opportunity of explanation is highhanded, arbitrary, mala fide and illegal. The Division Bench further observed that such unilaterally deduction which causes civil consequences cannot be passed without observing the rule of natural justice. In the same tune, the other judgment of this court in the case of Radha Govinda Das -vs- the State of West Bengal & Ors unreported judgment dated 7.7.2010 passed in W.P. No. 1075 (W) of 2010 was passed.
If the ratio of the above settled proposition of law is applied, there is no manner of doubt that the authorities, while preparing the pension payment order being Memo No. 6746/P dated 11.10.1999, have illegally, arbitrarily and in a most highhanded manner deducted the said sum of Rs. 1,33,967/- from the arrear pension on account of overdrawal.
It is not a case of the respondent authorities that the petitioner by practicing fraud on making false representation had withdrawn such amount. Furthermore, such deduction has been made without giving an opportunity of hearing to the petitioner or giving any explanation. If any mistake is committed by an authority, for such mistake, the petitioner cannot be made to suffer. The said pension payment order being P.P.O No. BIR/S/P/4174 being Memo No. 6746/P dated 11.10.1999 whereby deduction is made for a sum of Rs. 1,33,967/- , cannot be supported.
For the above reasons, I direct the respondent no. 7, being the Treasury Officer, Rampurhat, District Birbhum, to refund the amount of Rs.1,33,967/- to the writ petitioner which has been deducted from the gratuity amount payable to him after his retirement together with interest at the rate of 6% per annum to be computed from the date of his retirement till the payment is made in terms of this order. The entire exercise shall be completed within eight weeks from the date of communication of this order.
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The instant writ petition stands allowed accordingly.
Urgent Photostat certified copy of this order, if applied for, be given to the learned advocate for the parties.
(Harish Tandon,J)