Calcutta High Court (Appellete Side)
For The vs Union Of India on 2 September, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
9.11
W. P. 10493 (W) of 2011
Mr. Sourav Mitra
.. For the Petitioner.
Mr. Debabrata Koley
.. For the State.
The petitioner, who was an Assistant Teacher of Telami High School
in the District of Purba Medinipur, retired on 31st October, 2006. Before his
retirement, pension payment order was issued by the Director from the officer of
the Director of Pension, Provident Fund & Group Insurance, Government of West
Bengal, on 27th October, 2006. The retiral benefits of the petitioner as per said
pension payment order was paid to the petitioner immediately after issuance of
the pension payment order.
The petitioner has filed this writ petition challenging the illegal action
on the part of the concerned authority for deducting a sum of 12,600/- on
account of overdrawal in pay, from the retiral benefits of the petitioner.
The question regarding legality of such deduction on account of
overdrawal and/or excess payment of salary from the retiral benefits of a retired
person has already been decided by the Hon'ble Supreme Court in the case of
Shyambabu Varma vs. Union of India, reported in 1994 (2) S.C.C. page 521,
wherein it was held that if a retired person had no hand either in the process of
refixation of pay and further payment, the overdrawal amount cannot be
adjusted and/or realized from the retiral benefits of such retired person after his
retirement.
2
It is submitted by the learned advocate for the State respondents on
instruction from his clients that such excess payment was made to the petitioner due to his wrong pay fixation during the tenure of his service.
It is not a case where the State Government alleges that such refixation of his salary at a higher slab was made due to fraudulant misrepresentation made by the petitioner. As such, this court holds that the petitioner was not at fault in the process of refixation of his pay scale during the tenure of his service.
Thus, this court by relying on the aforesaid decision of the Hon'ble Supreme Court holds that if any amount is found to have been paid to the petitioner in excess of his entitlement during the tenure of his service due to wrong pay fixation by the concerned respondents, the said respondents are neither entitled to adjust such overdrawal amount against the retiral benefits of the petitioner nor the said overdrawal amount can be realized from the retiral benefits of the petitioner.
Under such circumstances, this court disposes of this writ petition by directing the concerned authority to complete the entire exercise regarding release of the said sum of Rs. 12,600/-, which was illegally deducted by the said respondents from the retiral benefits of the petitioner together with the interest thereon @ 8% per annum from the date of retirement of the petitioner up to the date of actual payment thereof.
The entire exercise in this regard, including payment of the aforesaid amount should be completed within eight weeks from the date of communication of this order.
Re: Payment of Pensionary Relief 3 This court is of the view that though in view of the decision of the Hon'ble Supreme Court in the case of Shyambabu Verma vs. Union of India & Others (supra), recovery of the excess payment made to the petitioner due to wrong pay fixation by the concerned authority in which the petitioner had no fraudulent role to play, is not permissible after his retirement out of his retiral dues but the Hon'ble Supreme Court in the said decision has not held that the concerned authority is required to go on paying the current pensionary relief on the basis of the last drawn salary which was not admissible to him as per the law.
This court, thus, holds that though recovery of the excess payment from the retired person from his retiral dues is not permissible but the retired person cannot claim the pensionary relief for the current months on the basis of his last drawn salary which, in fact, was not admissible to him on the date of his retirement.
In my view, State cannot be burdened with such recurring liability for payment of pension for the current months by giving effect to such erroneous pay fixation even after such error is detected. However, I make it clear that any amount of money paid to any retired person on account of pension in excess of his entitlement, cannot be recovered from him.
As such, this court directs the concerned authority to ascertain the entitlement of the petitioner with regard to his pay and allowances which was admissible to him as per the law as on the date of his retirement and calculate the admissible pensionary relief payable to the petitioner accordingly.
The concerned authority is, thus, directed to complete the entire exercise in this regard within six weeks from date, so that the ultimate payment of the arrear pensionary relief reaches the hands of the petitioner within two weeks thereafter.
4The concerned authority is also directed to go on paying the current pension regularly at the rate to be fixed in the manner as aforesaid.
The writ petition, thus, stands disposed of.
Affidavit of service filed in court today be kept with the record.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner as early as possible.
(Jyotirmay Bhattacharya, J.)