Calcutta High Court (Appellete Side)
Chittaranjan Maiti vs State Of West Bengal & Ors on 24 March, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
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24. 3.2010.
ap
W.P. 1670 (W) of 2010.
Chittaranjan Maiti
Vs.
State of West Bengal & Ors.
Mr. Subhrangsu Panda
... For the petitioner.
Mr. Jitendra Lal Das
... For the State.
Heard the learned advocates for the parties.
The writ petitioner was an approved Assistant Teacher of "Keshabpur Gadadhar
Jagindra Milan Vidyapith" of Keshabpur Jalpai, District Purba Medinipur. He retired from
service on 30th April, 2003, after thirty-three years spent in teaching. The scale of pay of
the writ petitioner was revised from time to time, as per ROPA 81, ROPA 90 and ROPA
98. As such, revised scale of pay and fixation of the scale of pay were duly recorded by the
school authorities in the service- book of the writ petitioner. The same was also approved
from time to time by the concerned District Inspector of Schools, without any dispute
and/or complain. Before retirement, all his papers were submitted by the school authorities
to the concerned District Inspector of Schools for the purpose of sanctioning pensionary
benefits including gratuity.
Upon receiving the Pension Payment Order, the writ petitioner came to learn for the
first time that Rs. 1, 29,737/- has been deducted from the gratuity amount due and payable
to him, on account of overdrawal in pay. It is an admitted position that such deduction has
been made by the authorities without giving any notice to the writ petitioner and without
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assigning any reasons. The writ petitioner raised an objection before the concerned
Treasury Officer but to no avail. In such circumstances, the instant writ petition has been
filed praying, inter alia, for issuance of writ in the nature of mandamus commanding the
respondents to refund the amount of Rs. 1, 29,737/-, which has been deducted from the
gratuity amount of the writ petitioner after his retirement, together with interest at the rate of 10% per annum on such amount to be payable from the date of retirement till such payment was made by the concerned authority.
At the time of hearing of the instant matter, learned advocate appearing on behalf of the State fairly submits that it was impermissible for the respondent authorities to deduct any amount from the gratuity amount payable to the writ petitioner upon his retirement.
In my view, the issue, sought to be raised by the writ petitioner in the instant case, has been well-settled by various pronouncements of the Supreme Court as well as by this Court. In a recent decision of the Supreme Court reported in 2009 (1) Supreme 163 (Syed Abdul Qadir & Ors. vs. State of Bihar & Ors.), it has held, inter alia, as follows:-
" .... 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 the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is 3 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. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India (1994) 2 SCC 521; Union of India vs. M. Bhaskar (1996) 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, (1997) 6 SCC 139; Col. B. J. Akkara (Retd.) vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors., vs. State of Bihar, (2006) 11 SCC 492; Punjab National Bank & Ors. vs. Manjeet Singh & Anr., (2006) 8 SCC 647; and Bihar State Electricity Board & Anr. vs. Bijay Bahadur & Anr., (2000) 10 SCC 99.
In a recent Division Bench judgment of this Court dated 11th May, 2009, in the case of The State of West Bengal & Ors. vs. Sri Harekrishna Sardar & Anr., reported in 2009 (2) CLJ (Cal) 259, it was observed, inter alia, that it is a settled proposition of law that any order which causes civil consequences can only be passed after observing rules of natural justice.
In the facts of the instant case, the amount which is shown as overdrawal in pay to the tune of Rs. 1, 29, 737/- undoubtedly, has not been appropriated by the writ petitioner by obtaining such payment by misrepresentation or practising fraud. If there is carelessness on the part of the officials of the State of West Bengal to compute payment of salary, while 4 the writ petitioner was in service for thirty-three years, such negligence and/or carelessness, solely due to some inefficient and callous officials, cannot be corrected and/or set right by deduction of Rs. 1, 29, 737/- from the gratuity amount, due to payable to the writ petition.
This Bench, in a judgment delivered on 24th August, 2007 in Sk. Md. Zakeria vs. The State of west Bengal & Ors. reported in 2008 (1) CLJ (Cal) 190 held, inter alia, that if a person has received a higher scale of pay, due to no fault of his own, and subsequently the said scale was reduced with retrospective effect by the concerned authorities, no steps could be taken to recover or adjust any excess amount paid to that person due to the fault on the part of the State authorities, since that person was in no way responsible for the same. The ratio of the decision of the Supreme Court in the case of Shyam Babu Verma as also Bhagwan Shukla was followed in that judgment wherein it was also held that in a situation where a person's basic pay was wrongly fixed initially and thereafter reduced with retrospective effect, the position having been allowed to continue for twenty years due to administrative lapses, such person was obviously visited with civil consequences and was not granted any opportunity of show-cause against the reduction of his basic pay and thus the concerned person was not even put on notice before his pay was reduced by the department and as such, there had been a flagrant violation of the principles of natural justice when the person had made to suffer huge financial loss without being heard.
For the above reasons, I direct issuance of a writ in the nature of mandamus, commanding the respondent no.4, being the Treasury Officer, Haldia, District - Purba Medinipur, to refund the amount of Rs. 1, 29, 737/- to the writ petitioner, which has been deducted from the gratuity amount payable to him after his retirement together with interest 5 at the rate of 8% per annum on the said amount to be computed from the date of his retirement till such date the payment is made in terms of this order.
The Director of Pension, Provident Fund & Group Insurance, being the respondent no.2 herein, is directed to refix the amount of monthly pension payable to the writ petitioner on the basis of his last pay drawn and consequentially issue necessary order for preparation of a fresh Pension Payment Order. These directions shall be complied with by the concerned respondents, preferably within a period of eight weeks, but not later than twelve weeks from date of communication of a photostat certified copy of this order.
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.
(Biswanath Somadder, J.) 6 7