Calcutta High Court (Appellete Side)
In Re : Smt. Dipali Das vs The State Of West Bengal And Others on 22 February, 2012
Author: Harish Tandon
Bench: Harish Tandon
1
11 22.2.2012
W. P. 14866 (W) of 2005
In re : Smt. Dipali Das
-vs-
The State of West Bengal and others
Mr. Ekramul Bari,
Mr. Syed Mansum Ali,
Mrs. Tanuja Basak
.......For the petitioner
This writ petition being W. P. 14866 (W) of 2005 is
directed against the threat meted out to the petitioner to recover
from his monthly salary and allowances, the amount allegedly
overdrawn by the petitioner as a result of erroneous fixation of
salary .
On the writ petition being moved, directions for filing
affidavits were issued. But no affidavit-in-opposition has been
filed.
On 28th November, 2005, His Lordship, the Hon'ble
Justice Pranab Kumar Chattopadhyay, passed an interim order
only to the effect that all steps taken by the respondents in
respect of the petitioners would abide by the result of the writ petition. There was no order of injunction restraining the respondents from effecting recovery. However, the respondents have not made any recovery.
In the meanwhile, while the writ petition was pending, the petitioner retired from service on 28th February,2006, on attaining the age of superannuation.
2Mr. Bari, learned counsel, appearing on behalf of the petitioner, submits that till date, the retiral benefits of the petitioner have not been finalised or released, not even provisional pension.
It is absolutely shocking that a secondary school teacher, who has rendered service for about thirty-seven years, should be subjected to the humiliating treatment of being denied even provisional pension for about six years.
The salary and allowances of the petitioner were fixed by the concerned authorities and not by the petitioner himself. Even if there had been any erroneous fixation, there can be no deduction unless erroneous fixation is by reason of any fraud or misrepresentation on the part of the petitioner. It is not the case of the respondents that the salary of the petitioner was erroneously fixed by reason of any misrepresentation made by the petitioner.
In Syed Abdul Quadir and others Vs. State of Bihar and others reported in 2009 (1) Supreme 163, the Hon'ble Supreme Court held as follows:
"......this court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allotments 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 or rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by Courts not because of any right in 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 3 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 shot 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."
In the case of Shyambabu Vs. Union of India reported in 1994 (2) SCC 521, the Supreme Court disapproved recovery on the ground of erroneous fixation of pay.
In the case of Chittaranjan Maiti Vs. State of West Bengal and others reported in 2010 (2) CLJ ( Cal) 241 a Single Bench of this Court referred to and/or quoted from a catena of decisions of the Supreme Court and held that excess payment of salary on account of erroneous fixation could not be recovered and more so in the absence of any fraud or misrepresentation on the part of the employee concerned.
In any case , there can be no question of any recovery on account of erroneous fixation, six years after the retirement of the concerned teacher, when the employee and the employer relationship had ceased to exist.
The writ application is disposed of by directing the respondents to forthwith finalise the retiral benefits of the petitioner and to release the same to the petitioner positively within two months from the date of communication of this order. The gratuity due and payable to the petitioner shall carry interest at the rate of ten per cent per annum from the date of retirement of the petitioner till full payment to the petitioner. The monthly pension payable to the petitioner shall 4 carry interest at the rate of nine per cent per annum ( being the rate of interest paid by a Nationalised Bank to senior citizens on Fixed Deposit ) from the seventh day of the month following the month for which the pension is due till the date of release to the petitioner.
The petitioner, having unnecessarily been dragged to this court, shall be entitled to costs of these proceedings assessed at 300 G. Ms. The writ application is disposed of with the aforesaid direction.
In view of the disposal of the writ petition, the connected application being C.A.N. 1404 of 2012 becomes infructuous and the same stands disposed of.
Let notices filed in court to-day be kept with the records of this case.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance with requisite formalities.
( Indira Banerjee J .)