Calcutta High Court (Appellete Side)
Asitosh Bhattacharya vs State Of West Bengal And Ors on 27 April, 2015
Author: Ishan Chandra Das
Bench: Ishan Chandra Das
1
27.04.15
42/skp.
W.P.S.T. 25 of 2015
Asitosh Bhattacharya
Vs.
State of West Bengal and Ors.
Mr. Subrata Banerjee,
Ms. Sumana Sinha ... for the petitioner.
Ms. Chaitali Bhattacharya,
Mr. Subhendu Sengupta .... for the State.
Mr. Sandip Kr. Bhattacharyya ... for the
respondent No. 5.
This writ petition has been filed assailing the judgment and order dated 6th January, 2014 passed by the West Bengal Administrative Tribunal in Case No. O.A. 1163 of 2012 whereby the said learned Tribunal following the decision of the Supreme Court in the case of Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand and Ors., reported in (2012) 8 S.C.C. 417 refused to grant any relief to the petitioner herein.
From the records it appears that the petitioner herein was appointed as Armed Sub-
Inspector on 7th June, l974 and he was subsequently promoted to the post of Armed Inspector.
The Commandant, S.A.P. 2nd Bn., Barrackpore by the order dated 7th December, 2011 re-fixed the pay of the petitioner pursuant to the observation of the Sr. Accounts Officer in the office of the A.G, West Bengal. The Commandant SAP 2nd Bn., Barrackpore by written communication dated 16th December, 2011 informed the Principal Accountant General (A&E), West Bengal that a sum of Rs. 2,13,035/- will be recovered from the gratuity of the petitioner as per modified pay fixation and ultimately recovered the said amount from the gratuity of the petitioner.
The aforesaid written communication dated 16th December, 2011 issued by the Commandant SAP 2nd Bn., Barrackpore to the Principal Accountant General (A&E), West Bengal is set out hereunder:
"To The Principal Accountant General (A&E) West Bengal Treasury Building, Kolkata-01.
Sub:- Resubmission of pension papers.
Ref. Memo No. Pen X/274(A)/11-12/0/1856 dated 02.11.2011 of AG (A&E) West Bengal.2
The original Service Book alongwith the pension papers of Asitosh Bhattacharya of this unit are re-
submitting herewith after taking necessary action from this end as per observation made vide memo under reference. It is informed that the excess pay and allowances an amount of Rs. 2,13,035/- as per modified pay fixation will be recovered from retiring gratuity.
Commandant
SAP 2nd Bn., Barrackpore
Memo No. 3118/1)1)P.O// Date 16-12-11//"
The petitioner being aggrieved by the deduction of the aforesaid amount of Rs. 2,13,035/- from the gratuity filed the Original Application before the West Bengal Administrative Tribunal.
The learned Tribunal, however, refused to grant any relief to the petitioner and therefore, the said petitioner filed the present writ petition challenging the impugned judgment and order dated 6th January, 2014 passed by the learned Tribunal.
Mr. Subrata Banerjee, learned Advocate representing the petitioner submits that the Commandant SAP 2nd Battalion Barrackpore refixed the pay of the petitioner on 7th December, 2011, that is, only few days before the date of retirement of the said petitioner since the petitioner herein retired from service on 31st December, 2011. Mr. Banerjee further submits that the respondent authorities should not have recovered the overdrawal amount from the gratuity of the said petitioner by issuing an order just few days before the actual date of retirement of the petitioner on attaining the age of superannuation. Mr. Banerjee refers to various orders issued from time to time by the Commandant SAP 2nd Bn., Barrackpore wherein it has been specifically mentioned that overdrawal, if any, should be recovered immediately.
There is no dispute that the pay of the petitioner was refixed by the order dated 7th December, 2011 by the Commandant SAP 2nd Bn., Barrackpore in respect of the period from 28th October, l986 to 31st March, 2008.
The learned Advocate representing the petitioner referring to the aforesaid order dated 7th December, 2011 submits that the authorities concerned instead of recovering the overdrawal amount immediately decided to recover the same after a lapse of more than two decades as per modified pay fixation. The concerned respondent refixed the pay of the petitioner with effect from 28th October, l986 to 31st March, 2008.
Ms. Chaitali Bhattacharyya, learned Advocate representing the State respondents submits that the petitioner herein by the written communication dated 1st December, 2011 3 prayed before the respondent Commandant S.A.P. 2nd Battalion Barrackpore to deduct the overdrawal amount from the gratuity.
The learned Advocate representing the petitioner, however, submits that the said petitioner under compelling circumstances gave consent for deduction of the excess overdrawal amount from his retiring gratuity as otherwise the entire retirement benefits would have been withheld by the respondent authorities. The learned Advocate representing the petitioner further submits that the respondent authorities are not entitled to recover any amount from the retirement benefits of the petitioner in view of the following decisions of the Hon'ble Supreme Court :
(i) Shyam Babu Verma vs. Union of India, reported in (l994) 2 SCC 521;
(ii) Syed Abdul Qadir vs. State of Bihar, reported in (2009) 3 SCC 475; and
(iii) State of Punjab and Ors. vs. Rafiq Masih, unreported decision of the Supreme Court (Civil Appeal No. 11527 of 2014).
Ms. Chaitali Bhattacharyya, learned Advocate representing the State respondents submits that the respondent authorities did not commit any wrong by recovering the overdrawal amount from the retiring gratuity of the said petitioner.
Ms. Bhattacharyya relies on the decision of the Supreme Court in the case of Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand and Ors., reported in (2012) 8 S.C.C. 417 and also on another decision of the Supreme Court in the case of Union Territory, Chandigarh & Ors. vs. Gurcharan Singh & Anr., reported in (2014) 13 S.C.C. 598.
Ms. Bhattacharyya further submits that overdrawal amount can be recovered from the retiring employee in terms of Rules 9 and 140 of the West Bengal Services (Death-cum-
Retirement Benefit) Rules, l971. Ms. Bhattacharyya also submits that in terms of Section 72 of the Indian Contract Act, the petitioner herein is liable to refund the excess overdrawal amount.
Ms. Bhattacharyya submits that drawal of pay in excess due to refixation of pay can be recovered from the petitioner as and when it has been detected. Ms. Bhattacharyya also submits that the petitioner never made out any case of hardship in the original application and therefore, the overdrawn amount can be recovered from the said petitioner even after retirement.
On examination of the impugned judgment and order passed by the learned Tribunal, we find that the relief claimed by the petitioner was denied by the learned Tribunal following the judgment of the Supreme Court in the case of Chandi Prasad Uniyal & Ors. (supra).
4In our opinion, the learned Tribunal did not consider the decision of the Supreme Court in the case of Chandi Prasad Uniyal & Ors. (supra) in an appropriate manner. The Hon'ble Supreme Court in the cases of Shyam Babu Verma (supra) and Syed Abdul Qadir (supra) specifically restrained any recovery from the retirement dues of an employee. In the case of Chandi Prasad Uniyal (supra) the Supreme Court did not take any contrary view from the aforesaid earlier decision.
In a subsequent decision of the Hon'ble Supreme Court in the case of U.T. Chandigarh & Ors. (supra), the Hon'ble Supreme Court observed that if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the aforesaid decision must be recovered.
In the aforesaid decision, the Hon'ble Supreme Court did not consider its earlier decision specifically the three-Judge Bench judgment of the Supreme Court in the case of Syed Abdul Quadir (supra).
In a subsequent decision the Hon'ble Supreme Court in the case of State of Punjab and Ors. (supra) considered all the earlier decisions including Shayam Babu Verma (supra) and Syed Abdul Quadir (supra) and summarised the situations wherein recoveries by the employers would not be permissible in law.
Paragraph 12 of the aforesaid judgment of the Hon'ble Supreme Court is set out hereunder :
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employees, would be impermissible in law :
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Ms. Bhattacharya, learned Advocate representing the State respondents submits that in the decisions cited by the learned advocate of the petitioner, provisions of the West Bengal Services (Death-cum-Retirement Benefit) Rules, l971 were not applicable and therefore, those decisions are clearly distinguishable on the aforesaid ground.
5We are, however, inclined to follow the decision of the Hon'ble Supreme Court in the case of State of Punjab and ors. vs. Rafiq Masih (supra). In the aforesaid decision, the Hon'ble Supreme Court has categorically summarised the situations wherein recoveries by the employers would not be permissible.
In the present case, undisputedly the respondent Commandant SAP 2nd Bn., Barrackpore issued an order refixing the pay of the petitioner with effect from 28th October, l986 to 31st March, 2008 only before three weeks from the actual date of retirement of the said petitioner since the aforesaid order was passed by the Commandant SAP 2nd Bn., Barrackpore on 7th December, 2011 whereas the petitioner retired from service on attaining the age of superinnuation on 31st December, 2011. The said respondent Commandant SAP 2nd Bn., Barrackpore also informed the Principal Accountant General (A&E), West Bengal by the written communication dated 16th December, 2011 that the excess pay and allowances to the tune of Rs. 2,13,035 will be recovered from the gratuity of the petitioner as per modified pay fixation. The aforesaid written communication dated 16th December, 2011 was issued only two weeks before the actual date of retirement of the petitioner on attaining the age of superannuation.
In view of the specific direction of the Hon'ble Supreme Court in the case of State of Punjab and Ors. (supra), no recovery can be made from a retired employee who is due to retire within one year from the order of recovery. Furthermore, recovery from the petitioner also is not permissible since the excess payment had been made for a period in excess of five years before issuance of the order of recovery by the respondent Commandant SAP 2nd Bn., Barrackpore.
In view of the specific directions of the Hon'ble Supreme Court mentioned in the judgment of State of Punjab and Ors. vs. Rafiq Masih (supra), we hold that the respondent Commandant SAP 2nd Bn., Barrackpore had no authority to recover any amount from the petitioner by refixing the pay of the petitioner only three weeks before the actual date of retirement. The said respondent Commandant SAP 2nd Bn., Barrackpore had also no authority and/or power to recover any amount from the retiring gratuity of the said petitioner on the basis of the aforesaid modified pay fixation only two weeks before the date of retirement of the petitioner on attaining the age of superannuation.
For the aforementioned reasons, we quash the decision of the respondent authorities regarding recovery of the overdrawal amount of Rs. 2,13,035/- from the retiring gratuity of the petitioner and set aside the impugned judgment and order passed by the learned Tribunal.
Since a considerable time has already passed, we direct the respondent authorities to refund the amount of Rs. 2,13,035/- already recovered from the petitioner without any further delay but positively within a period of three weeks from the date of communication of this order.
6This writ petition, therefore, stands allowed.
In the facts of the present case, there will be no order as to costs. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.
( Pranab Kumar Chattopadhyay,J) (Ishan Chandra Das, J. )